Minter Ellison v Lauro (No 2) - [2014] SADC 126

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Interlocutory Application)
MINTER ELLISON v LAURO (No 2)
[2014] SADC 126
Decision of His Honour Judge Slattery
11 July 2014
PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - PARTICULAR RELATIONSHIPS OR CIRCUMSTANCES - PRIOR RELATIONSHIP OF LEGAL ADVISER AND CLIENT
PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - PARTICULAR RELATIONSHIPS OR CIRCUMSTANCES - OTHER MATTERS
PROFESSIONS AND TRADES - LAWYERS - UNQUALIFIED PERSONS AND DISQUALIFIED PRACTITIONERS - ACTING FOR PARTY
Interlocutory application (FDN 28) by the defendant seeking orders inter alia that the presiding Judge disqualifies himself from the current action because of apprehension of bias and for other orders.
Interlocutory application (FDN 17) by the defendant that that the presiding Judge disqualify himself from the current action due to conflict of interest, that Mr Eric Lauro be permitted to speak on behalf of the defendant and for other orders.
Interlocutory application (FDN 22) by the plaintiff seeking order that Mr Eric Lauro be appointed as the litigation guardian on behalf of the defendant.
Interlocutory application (FDN 6) for directions and orders concerning the ongoing management of the litigation.
Held:
(1)     Defendant’s applications for the presiding Judge to disqualify himself due to alleged conflict of interest and apprehension of bias dismissed;
(2)     Defendant’s application that the current court action be stayed and other orders dismissed;
(3)     Defendant’s application that Mr Eric Lauro be permitted to appear and speak on behalf of the defendant dismissed;
(4)     Plaintiff’s application to appoint Mr Eric Lauro as litigation guardian on behalf of the defendant refused.
Observations in relation to representation in court of a party to the litigation by a person who is not an admitted practitioner of the court.
District Court Civil Rules 2006 (SA) rr 4, 22, 78, 79, 92(2), 267(2), referred to.
Baroutas v Limberis & Sons Pty Ltd (1974) 8 SASR 136 ; R v Judge Russell; Ex parte Reid (1984) 35 SASR 417; R v Garrett (1988) 50 SASR 392; Johnson v Johnson (2000) 201 CLR 488; Southern Equities Corp Ltd (in liq) v Arthur Andersen & Co (2001) 212 LSJS 380; R v Eastman (1994) 76 A Crim R 9; AJH lawyers Pty Ltd v Careri (2011) 34 VR 236; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Giannarelli v Wraith (No 2) (1991) 171 CLR 592; D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; Western Australia v Watson [1990] WAR 248; Precision Fabrication Pty Ltd v Roadcon Pty Ltd (1991) 104 FLR 260; Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; Damjanovic v Maley (2002) 195 ALR 256; Giancaspro v SHRM (Australia) Pty Ltd [2005] SASC 340, considered.

MINTER ELLISON v LAURO (No 2)
[2014] SADC 126
Background

Interlocutory applications brought by Natale Lauro (‘the defendant’) seeking orders that I disqualify myself, and for Mr Eric Lauro (‘Eric Lauro’) to speak on behalf of the defendant; and an interlocutory application by the plaintiff firm of solicitors for orders that Eric Lauro be appointed litigation guardian on behalf of the defendant.
The most recent application to be considered is FDN 28, an interlocutory application of the defendant dated 10 February 2014, which seeks the following orders:-
1.   That his Honour Judge Slattery disqualify himself from the action.
2.   That this matter be stayed for a period of 6 months.
3.   That all outstanding applications in this matter be heard by another judicial officer after the lapse of the above stay.
4.   That the defendant be granted an extension of time to comply with any outstanding orders or tasks till after the lapse of the above stay or prior, if legally represented.
5.   ...
The above application is not the first or the only application brought by the defendant asking a judicial officer to disqualify himself/herself due to apprehension of bias. An interlocutory application (FDN 17) dated 24 January 2014 seeks similar orders to those contained in the application (FDN 28). Apart from those orders, the defendant seeks an additional order of the court that the defendant’s son, Eric Lauro, be allowed to speak on his behalf at any current or future hearings if required.
The third interlocutory application to be considered is dated 27 September 2013.[1] The defendant seeks the following orders:
[1]    FDN 6.
1.   That this application, with supporting affidavit on their behalves by their son, Eric Lauro, be made specially returnable to the hearing on 1 October 2014 at 3:20pm.
2.   That Minter Ellison’s proceedings be struck out.
3.   In the alternative to 2. above, that:
a.   Mrs. Silvana Lauro be removed as a Defendant in these proceedings;
b.   these proceedings be stayed due to the First Defendant’s medical conditions and to enable the intervention of the Legal Practitioners Conduct Board, or that it be otherwise adjourned till after at least 11 November 2013 for mention only.
c.   any timeframe associated with any tasks to be attended to by either Defendant in these proceedings be extended until the first Defendant is fit to do so and is able to obtain independent legal assistance and/ or representation.
4.   That the Defendants’ contact details, other than those listed in the Notice of Acting, and any other private and confidential document or information disseminated and/or published by Minter Ellison without authority, be removed from the Court file or sealed confidential by the Court, and no longer disseminated by Minter Ellison.
5.   That any document of a medical nature relating to the First Defendant’s medical conditions and treatment or other discoverable document be allowed to be presented to Minter Ellison only in a masked format to protect the Defendants’ confidentiality and privacy.
6.   That Minter Ellison deliver to the First Defendant an account of money and property in Minter Ellison’s possession, including files or previous solicitors and Counsels, relating to each of the First Defendant’s legal actions forming the basis of the underlying fee dispute and Minter Ellison’s present claim.
7.   Costs.
8.   ...
In relation to the interlocutory application (FDN 6) dated 27 September 2014, the defendant has been given permission to withdraw paragraph 2.[2] Paragraph 3(a) is no longer pressed by the defendant as the plaintiff has filed a Notice of Discontinuance against the second defendant Mrs Silvana Lauro,[3] and paragraphs 1 and 3(b) have no effect due to the lapse of time. The only remaining orders sought by the defendant are set out in paragraphs 3(c), 4, 5, 6 and 7.
[2] Minter Ellison v Lauro [2014] SADC 14.
[3] Notice of Discontinuance dated 1 November 2013.
The abovementioned applications are supported by seven affidavits of Eric Lauro dated 27 September 2013, 1 November 2013, 6 November 2013, 24 January 2014, 10 February 2014 and 22 February 2014[4], together with an affidavit of the defendant, Natale Lauro dated 22 January 2014.[5]
[4] FDN 7, FDN 9, FDN 12, FDN 15, FDN 19, FDN 27 and FDN 29.
[5] FDN 18.
The plaintiff, Minter Ellison, was granted leave on 29 January 2014 to make an application for a court order to appoint Eric Lauro as the litigation guardian of the defendant pursuant to r 79 of the District Court Civil Rules 2006 (SA) (‘DCR 6’).[6] An interlocutory application was made on the same day seeking for such order to be made.
[6] Interlocutory Application – Specially Returnable dated 29 January 2014.
The plaintiff’s application is supported by the affidavit of Grant Mitchell, a partner of Minter Ellison dated 5 November 2013.
I will deal with the issue of disqualification first as it is fundamental to first decide whether there is any issue (whether raised by the defendant or not) that prevents me from presiding over the outstanding matters before this Court.
Disqualification
The general principle is that a judicial officer should disqualify himself or herself, if in the minds of reasonable persons, there would be a substantial distrust that he or she may not be fairly discharging his or her duty in deciding the case before him/ her.[7]
[7] Baroutas v Limberis & Sons Pty Ltd (1974) 8 SASR 136; R v Judge Russell; Ex parte Reid (1984) 35 SASR 417; R v Garrett (1988) 50 SASR 392.
The test to be applied in determining if there is a reasonable apprehension of bias is whether a fair-minded observer might reasonably apprehend that the judicial officer might not bring an impartial and un-prejudiced mind to the resolution of the issue that he or she was required to decide.[8] The test must be applied on the basis of whether bias might reasonably be apprehended by a reasonable observer who is not a lawyer, and not whether it would probably be apprehended.[9] In other words, the party alleging the existence of apprehended bias must satisfy the court that there is a real apprehension, not probability or mere suspicion, that bias exists.
[8] Johnson v Johnson (2000) 201 CLR 488, [11].
[9] Southern Equities Corp Ltd (in liq) v Arthur Andersen & Co (2001) 212 LSJS 380; R v Eastman (1994) 76 A Crim R 9.
The application of the above mentioned test involves two steps.[10] When alleged apprehension of bias is brought to the attention of the court, the first step is “the identification of what it is said might lead a judge … to decide a case other than on its legal and factual merits”.[11] The second step is the “articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits”. [12] In AJH Lawyers Pty Ltd v Careri[13], the court applied a slightly different test. The two-step test was instead applied to the conduct of the judge in the proceedings. In that case, the matter to be identified first is “the conduct of the judge said to give rise to apprehension of bias”[14], and the following consideration is whether there is evidence of ‘the logical connection between the conduct of the judge and the feared prejudgment of a question the judge is required to decide’.[15]
[10] AJH lawyers Pty Ltd v Careri (2011) 34 VR 236, 243.
[11] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 345, [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ.
[12] Ibid.
[13] (2011) 34 VR 236.
[14] Ibid 243.
[15] Ibid.
The defendant alleges that apprehension of bias exists not only on the ground of conflict of interest but also on the ground of the conduct of a judge in the legal proceeding. Both tests are relevantly to be applied in this case.
In the affidavits of Eric Lauro dated 10 February 2014 and 24 February 2014 filed in support of the application, Eric Lauro alleges that apprehension of bias exists due to the following principal reasons, which I have paraphrased as best I can:-
1. Before being appointed to the bench, I had acted (as a barrister) for a firm of solicitors, instructed by a particular solicitor, both of those parties being the defendant’s opponents in two separate legal actions.[16]
[16] Paragraph 27.2.4 of the Sixth Affidavit of Eric Lauro dated 10 February 2014.
The two legal actions are not identified and it is not suggested that those two actions are in any way connected with this action. It is also worth stating here that a barrister does not usually act for a legal firm but is retained by that firm in circumstances that are well understood;[17] and
2.   I have practised as a barrister at Anthony Mason Chambers whose members have been acting and continue to act against the defendant in separate legal proceedings engaged by Minter Ellison; [18] and
3.   I was ‘a partner of Minter Ellison Lawyers, in its previous guise as Baker O’Loughlin’; [19] and
4.   Eric Lauro has been unfairly treated in the previous court proceedings and has been denied procedural fairness in the past court proceedings.[20]
[17] Giannarelli v Wraith [No 2] (1991) 171 CLR 592; D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12. A barrister will act for a legal firm on instructions of another firm in cases involving, for example, professional negligence.
[18] Paragraph 23.1.2 of the Seventh Affidavit of Eric Lauro dated 24 February 2014.
[19] Paragraph 23.2 of the Seventh Affidavit of Eric Lauro dated 24 February 2014.
[20] Paragraph 29 of the Sixth Affidavit of Eric Lauro dated 10 February 2014.
I will deal with ground 1 together with grounds 2 and 3 first.
Conflict of Interest
As discussed earlier in these reasons, when the alleged apprehension of bias is brought to the attention of the court, it is necessary first to identity the matter which is said to give rise to the alleged bias and secondly to consider the logical connection between that matter and the feared deviation from the course of deciding the case on its merits.[21]
[21] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 345, [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ.
Ground 1
In this case, Eric Lauro identified issues which are said to give rise to the apprehension of bias, namely that I had acted for the firm of solicitors, instructed by the solicitor, both of these parties being the defendant’s opponents in two separate legal actions.
In Western Australia v Watson[22], it was held that the mere fact that a judge who was a legal practitioner many years before, had acted for a party in unrelated matters does not ordinarily require him to disqualify himself.
[22] [1990] WAR 248.
I signed the Bar Roll on about 4 January 1994 and I practised exclusively as a barrister[23] after that time until my appointment to this Court in 2012. As a barrister I did not act for any firm of solicitors unless I was specifically retained to act for that firm by another firm of solicitors. I acted for the clients of the firms of solicitors on the usual retainer with the firm of solicitors which was not a contractual relationship. I looked to the firm of solicitors to honour their professional obligations to pay my fee accounts. There is no information provided by Eric Lauro to identify the two legal actions to which he refers. Doing the best I can, it appears that two actions between the defendant and the solicitor, and the firm of solicitors, are on foot. As I am not a party to nor am I in any way involved in those proceedings (and I have not in any way ever been so involved), this ground of application must fail. In my view this ground is hopeless and lacks any merit.
[23] I practised as a junior barrister until 5 December 2003 and I practised as a Queen’s Counsel from 6 December 2003.
Ground 2
Eric Lauro further alleged in his affidavit that before I was appointed as a Judge of this Court in 2012, I had practiced as a barrister at Anthony Mason Chambers whose members have been and continue to act against the defendant in separate legal proceedings that ‘remain current and are the subject of the within claim of Minter Ellison’.[24]
[24] Paragraph 23.1.1 of the seventh affidavit of Eric Lauro dated 24 February 2014.
In Precision Fabrication Pty Ltd v Roadcon Pty Ltd,[25] it was held that the mere fact that a judge was counsel in previous litigation involving a party, does not necessarily require him to disqualify himself. And in this case there is no suggestion that in those other actions, I was in any way involved as counsel or that any action in which I did appear as counsel was in any way connected with the identified separate legal proceedings ‘that remain current and (allegedly) are the subject of the within claim of Minter Ellison’.[26]
[25] (1991) 104 FLR 260.
[26] Paragraph 23.1.1 of the seventh affidavit of Eric Lauro dated 24 February 2014.
During the entire period of my practice as a barrister in Anthony Mason Chambers, I was not aware and had not become aware of a party in the name of the defendant. In addition, I was not aware of any of my previous colleagues who were acting for or against the defendant.
Even if I or any member of Anthony Mason Chambers were briefed by Minter Ellison Lawyers in relation to different matters which are unrelated to the matter currently before me, which I would anticipate and assume given the size of the legal profession in Adelaide, it does not automatically satisfy the test that bias might reasonably be apprehended by a reasonable observer, and hence does not automatically require a judge to disqualify himself. In my opinion this ground fails. It is similarly hopeless and lacks any merit.
Ground 3
Eric Lauro further alleged (on behalf of the defendant) that an apprehension of bias arose out of my being a partner of the firm of solicitors Minter Ellison Lawyers, that such connection would arouse a fear that I may not fairly decide matters before me on the merits of each case and it is highly probable that bias might be apprehended by a reasonable observer.
I was not and have never been a partner at Minter Ellison Lawyers. I was a partner of the firm Baker O’Loughlin between 1 July 1988 and 20 June 1993, on which date I resigned as a partner of that firm. I gave six months notice of my resignation as a partner.
The firm Baker O’Loughlin was a predecessor firm of the firm Minter Ellison. There were several iterations of the name of that firm of solicitors after 1 July 1993 but I am not now aware of the details. It is sufficient to say that I have had no formal connection with the firm Baker O’Loughlin since 31 December 1993.
Neither of the grounds above satisfies the two step test sets out in the case of Ebner v Official Trustee in Bankruptcy (‘Ebner’).[27] I will not disqualify myself based on the above grounds. In my opinion this ground fails and it is also hopeless and without merit.
Ground 4
[27] (2000) 205 CLR 337.
Conduct of a Judge during hearings
In AJH Lawyers Pty Ltd v Careri,[28] the Victorian Court of Appeal applied the two-step test in a slightly different way than in Ebner.[29] In the former case, the Court focussed on the judge’s conduct while hearing the matter which gave rise to the possibility of an already formed “pre-judgment”, rather than focussing on issues or matters that had already existed before the hearing started.
[28] (2011) 34 VR 236.
[29] (2000) 205 CLR 337.
In this case, Eric Lauro purported to summarise my conduct in 4 hearings[30] in paragraph 29 of his sixth affidavit dated 10 February 2014 (FDN 27) which he claims have given rise to an apprehension of bias.
[30] First hearing dated 8 November 2014, second hearing dated 20 December 2014, third hearing dated 29 January 2014 and fourth hearing dated 7 February 2014.
The issue to be decided here is whether the two-step test in AJH Lawyers Pty Ltd v Careri[31] is satisfied to give rise to an apprehension of bias. If it does, I should, according to the law, disqualify myself from this case.
First Hearing - 8 November 2013
[31] (2011) 34 VR 236.
In paragraph 29.1, it is alleged that:-
29.1 first hearing presided by His Honour on 8 November 2014, the anomalies included:
29.1.1 His Honour apparently noticing, and discussing with Minter Ellison, that my father’s defence, set off and counterclaim was not duly filed…but not instructing the plaintiff or Registry to notify my father of same[.]
A Judge has no duty under any legislation or otherwise to inform parties in litigation as to when and how a statement of claim, defence, set off and counterclaim should be filed. Omission of notification by a Judge does not create ‘the logical connection between the conduct of the judge and the feared prejudgment of a question the judge is required to decide’.[32] The fact that a pleading has not been filed but has, indirectly, found its way to the Court file is always a pertinent matter, both procedurally and administratively.
Second Hearing – 20 December 2014
[32] AJH lawyers Pty Ltd v Careri (2011) 34 VR 236, 243.

In paragraph 29.2 of the sixth Affidavit of Eric Lauro, it is alleged that:-
29.2 Second hearing presided by His Honour on 20 December 2014, the anomalies included:
29.2.1. His Honour being unduly harsh towards me during attempts to object to Grant Mitchell’s inaccurate and/or misleading submissions against my father, by standing up at the Bar according to Court protocol, only to be shouted at to “sit down”;
29.2.2 His Honour embarking on explaining the approach taken in New South Wales as an introduction to the topic of summary judgments, which His Honour intimated or has prejudged in his matter;
29.2.3. His Honour’s undue criticism of my father, for his pleadings not having been duly filed, despite the fact that this issue was known to the Honourable Court since 8 November 201[3] but never notified to my father, and was first raised by Grant Mitchell only on 17 December 201[3]...;
29.2.4. His Honour’s undue criticism of my father, by claiming that there were no documents filed by or for my father, when the Registry instead confirmed that at least a Notice of Acting (FDN 4) had been duly filed on 5 August 2012;
29.2.5. His Honour taking no interest at all in the documented failures caused by the Registry, as summarised in exhibit “EL7” to this affidavit;
29.2.6 His Honour unduly facilitating Minter Ellison, notwithstanding formal applications and affidavits detailing procedural irregularities on their part (e.g. defective summons), brought to their attention since at least October 2013;
29.2.7. His Honour setting down an unreasonable timeframe and demanding that my father be legally represented, notwithstanding the then impending festive holiday, which has seen the majority of Adelaide law firms shutting down from the day of that hearing, to well into January 2014;
29.2.8 His Honour indicating that my father would be promptly notified of the Orders made, but no such notification ever been provided to him.
In relation to the allegation in paragraph 29.2.1, a judge needs to give all parties in the proceeding a fair chance to make submissions in court. Eric Lauro interrupted the plaintiff’s submissions on several occasions and I had to ask him to “sit down” in fairness to the plaintiff.[33] After the plaintiff’s submissions, I gave Eric Lauro a chance to make submissions on behalf of his father.[34]
[33] T5.31 and T5.35, Transcript of Proceedings (District Court of South Australia, 13/1810, Judge Slattery, 20 December 2013).
[34] T6.30, 20 December 2013.
In relation to the allegations contained in paragraph 29.2.2 to 29.2.8, they arose in the context of the defendant’s failure to comply with the District Court Civil Rules 2006 to file a “Defence, Set-Off and Counterclaim”.
Pursuant to DCR 6R 92(2), a Defence must be filed within 28 days of service of the plaintiff’s Statement of Claim. The Statement of Claim was received by the court on 28 June 2013. By the hearing date of 20 December 2014, the court still had not received a copy of the defendant’s filed “Defence, Set-Off and Counterclaim”.
In the transcript of proceedings dated 20 December 2013, I explained to the defendant what the likely consequences would be if court rules had not been properly followed. This was for the benefit of both parties, especially for the defendant who is unrepresented. I consider my action as being fair and just to both parties.
The relevant transcript reads as follows:-
His Honour: Good, all right. I have seen the document called “Defence, set-off and counterclaim”, but it was not on the file on the last occasion. [It is] not on the file now.
Mr Lauro: Yes, Just in relation to –
His Honour: No, [it is] not on the file now. It means that it [has not] been filed.
Mr Lauro: Yes. There was a fax sent to the registry and -
His Honour: Well, I don’t want to know about that. What [I am] saying to you is for the purposes of the court rules it has not been filed. That means that certain steps can be taken by the plaintiff in relation to that failure to file a document. The court then considers whether or not – sorry, I will start again. An application can be made for the court to consider whether or not any form of defence should come forward after the time, for example, that judgment is signed for failure to file a defence.
You would have heard my conversation with Mr Mitchell. You would have heard me indicate that there are particular approaches that courts take in circumstances where people don’t file pleadings in time. There are different approaches in different places. If you were in Sydney you would have no sympathy. In this state you might have some sympathy, all right? But as I say, it is a little bit of where you are.
So I am going to apply the South Australian approach to this, all right? The South Australian approach to this matter is that the plaintiff should not after a reasonable period of time be held up in pursuing its case. That being the case, if there is a defence to be filed I will give a reasonable time in which it should be filed.
I will also give an indication that if a document [I am] seeing as something that is proposed to be filed is not acceptable, then I will tell you because that means that the document is going to be struck out anyway which takes us back to square one and there is simply no point in doing that. But the South Australian approach is to take it in steps and so the first step is to make sure that you plainly understand or your father plainly understands the obligations upon him.
Now I am going to – and you have heard me also use the expression I think ‘self executing order’. The self executing order is given by a court in the most extraordinary of circumstances. It means that if a party [does not] do something, then the party is put out of court. So you lose your constitutional right to be in the court so therefore [it is] extraordinary. I would not make that order now and that was what I said to Mr Mitchell. I will not make that order now because I don’t think [it is] appropriate.
However, what [I am] saying to you is time is nearly up. Your father has until 15 January 2014 to file his defence. If he does not do so, that is if he doesn’t file a defence in a form [that is] appropriate, then I will consider any application made by Mr Mitchell on 16 January 2014. I will hear that matter whether [it is] on the 16^th or sometime shortly after the 16^th and it may well be that I will say ‘No, I need more time and let’s set it for another day’ probably in the following week or the following two weeks. But I can tell you that this matter is going to be dealt with quickly and I am going to maintain control of the matter.
Now I am going to deliver some comments in a moment that are going to be recorded for the purposes of the transcript. I will settle those and I will get them to you. All right, so [that is] the first thing. The second thing is that I have seen a document called ‘Defence, set-off and counterclaim”. I can tell you that it is not an appropriate pleading for a number of reasons, but the hints in relation to why it is not an appropriate pleading are really set out in the affidavit filed by Mr Mitchell sworn on 17 December 2013, in particular the letter from Mr Mitchell to your father dated 24 September 2013, which is exhibit GM1 to the affidavit. Therefore, [that is] a very strong indication to you, but I [do not] bind myself to it, but [it is] a strong indication that more needs to be done if there is to be an appropriate pleading come forward.
All right, now that then leads on to a third matter and that is that a significant amount of time has been wasted in this matter by you concerning yourself with criticising Mr Mitchell or criticising anyone from Minter Ellison. I need you to understand that I am not going to engage in some form of exchange of criticisms. [I am] simply not going to allow it. This is a court of law, it is not a court of personal insult. That being the case, [I am] simply not prepared to countenance affidavits, for example, like your fourth affidavit.
If there is a fact that your father has a medical condition that prevents him from coming to court, then a doctor can tell me. Unless a doctor tells me, [I am] going to ignore it. [I have] seen other affidavits and [I have] seen some medical reports and those medical reports indicate some of the disabilities suffered by your father. I understand them and I will take those into account.[35]
[35] T7.35 - T10.29, 20 December 2013.
I do not consider my conduct in the proceedings of 20 December 2014 as conduct which gives rise to a pre-formed judgment (giving rise to an apprehended bias) and in my view ‘the logical connection between the conduct of the judge and the feared prejudgment of a question the judge is required to decide’[36] cannot be established.
[36] AJH lawyers Pty Ltd v Careri (2011) 34 VR 236 at 243.
I will not disqualify myself on this ground.
Third Hearing – 29 January 2014
In paragraph 29.3 of the sixth Affidavit of Eric Lauro, it is alleged that:-
29.3 third hearing presided by His Honour on 29 January 2014, the anomalies included:
29.3.1 His Honour continuing to unduly guide Minter Ellison, this time on the issue of nominating a litigation guardian, and entertaining such application without any prior notice or formal application;
29.3.2 His Honour intimating my appointment, or that of the Public Trustee, as litigation guardian for my father notwithstanding such ventilated issues as those covered in paragraphs 22.2 and 22.4 hereto;
29.3.3 His Honour continuing to be unduly lenient and acting with empathy towards Minter Ellison, and vigorously pushing on this matter despite:
(i) my father’s temporary medical unfitness;
(ii) the difficulties in obtaining legal assistance and representation;
(iii)Minter Ellison’s procedural irregularities not addressed since last year;
(iv)Minter Ellison initiating the within action to prevent my father from seeking the intervention of the LPCB...
29.3.4 [N]either his Honour nor the Registry providing definitive confirmation of any actual conflict of interest, despite that which relates to Fletcher Lawson and Antonio Tropeano;
29.3.5. His Honour not realising, until my submissions at this hearing, that there are a number of outstanding applications since September 2013;
29.3.6. His Honour taking no steps in relation to the breach of privacy complained of in the Interlocutory Application and supporting affidavit of 27 September 2013;
29.3.7. His Honour being unduly swayed by the speculation and inaccurate and/or misleading submissions of Minter Ellison, which submissions Grant Mitchell partly withdrew following my valid objections…;
29.3.8His Honour readily entertaining Minter Ellison’s applications and submissions from the Bar, despite no prior notice given, but not allowing an additional stay application made pursuant to the LPA on the basis of supporting and facts already deposed in filed affidavits…;
29.3.9. His Honour unduly misinterpreting the Order I sought in the interlocutory application dated 22 January 2014, that it is tantamount to my father seeking to nominate me as his litigation guardian...;
29.3.10.His Honour interrupting me, after being bizarrely passed a hand written from his Associate, to query whether one of two mobile phone devices I frequently carry was a recorder;
29.3.11 His Honour not giving due regard to, among other things:
(i) The tardy actions and/or gross delay caused by Minter Ellison in adhering to established procedure, rectifying their irregularities and vexatious actions...;
(ii) my father’s status and difficulty to obtain mandatory legal assistance given the calibre of Minter Ellison[.]
None of the above allegations in relation to my conduct in the proceedings accused me of forming a “prejudgment” in relation to the case before me which may give rise the “logical connection between the conduct of the judge and the feared prejudgment of a question the judge is required to decide” in the eyes of a reasonable observer as suggested in AJH Lawyers Pty Ltd v Careri[37]. Rather, I consider some of the serious allegations made against me and the plaintiff firm of solicitors were of the nature of alleging breaches of the professional conduct rules, for example, that the plaintiff was purposely misleading the court. I consider that such allegation is unfounded. It is without any merit.
[37] Ibid.
I have again carefully reviewed the transcript of proceedings of 29 January 2014 and I have formed the view that a fair-minded lay observer would not have had any concern that I may not bring an impartial and unprejudiced mind to the resolution of the question before me. I will not disqualify myself based on the reasons above.
Fourth Hearing – 7 February 2014
In paragraph 29.4 of the sixth Affidavit of Eric Lauro, it is alleged that:-
29.4. fourth hearing presided by His Honour on 7 February 2014, the anomalies included:
29.4.1 His Honour not fixing a reasonable timeframe imposed, in light of the email communication received and exhibited “EL3” to this affidavit.
Neither the defendant nor Eric Lauro attended the hearing on 7 February 2014 and no correspondence was received by my Chambers before such hearing date to explain the reasons for their non-attendance. I fixed another hearing date of 20 February 2014 to hear further submissions from the defendant.
For the reasons that I have already stated above, I do not consider my conduct on 7 February 2014 creates a ‘logical connection between the conduct of the judge and the feared prejudgment of a question the judge is required to decide’ in the eyes of a reasonable observer.
I will therefore not disqualify myself. I dismiss the defendant’s application.
Paragraphs 4, 5 and 6 of the defendant’s application (FDN 6) may be dealt with in short order. Paragraphs 4 and 5 appear to deal with matters extraneous to the litigation but which have only arisen in the interlocutory proceedings between the parties. No basis for the grant of these orders is made out in the defendant’s material filed in support by the defendant. My understanding of the position is that the defendant puts forward and relies on this material in seeking a favourable exercise of the Court’s discretion. The defendant has therefore read this material into evidence. In these circumstances I dismiss those paragraphs of the application.
Paragraph 6 of FDN 6 appears to seek an account by the plaintiff in relation to money and property received. There is no evidence to suggest that the plaintiff has received ‘property’ for which an account must be given as a trustee. An account by the plaintiff of money received (into trust) on behalf of a defendant is intrinsic to the proper proof of the plaintiff’s case against the defendant. In my view, that accounting should occur only once and at trial but in circumstances where the details of that account are available to and comprehensible to the defendant as an ordinary litigant before the trial commences. I will therefore need to hear the parties further before making any decision on this application.
I will hear the parties on the questions of costs and any consequential orders.
Litigation Guardian
Factual Background
On Friday 20 December 2013, I delivered a Ruling in relation to an application brought by Minter Ellison against the defendant in which I summarised the facts as follows:-
The plaintiff, Minter Ellison, a firm of solicitors, sues the Defendant Mr Natale Lauro (Mr Lauro) in respect of an engagement of the firm of solicitors by Mr Lauro concerning five disputes and the details of those disputes are set out in paragraph 2 of the statement of claim.[38] There was a terms of engagement letter produced by the firm which recorded the terms of the retainer between the firm of solicitors and Mr Lauro.[39] The letter was dated 31 May 2011 and the retainer was terminated in about December 2012.
Between May 2011 and December 2012, there were 22 invoices delivered by the firm of solicitors to Mr Lauro in respect of professional services provided. The total of those invoices is in the sum of $132,090.09. Mr Lauro has failed or refused to pay the accounts of the solicitors.
The plaintiff’s pleading alleges that the amount in dispute has not been paid by Mr Lauro and that this refusal to pay is a breach of the terms of engagement. Minter Ellison claims that it has suffered loss in the sum of $132,090.09 by the failure of Mr Lauro to pay its accounts. The plaintiff seeks judgment against Mr Lauro in that sum plus interest and costs.
The summons and statement of claim were served on Mr Lauro but there has been no notice of acting filed by any solicitor and no appearance has been filed by Mr Lauro…
[38] The defendants, Natale Lauro and Silvana Lauro (‘the Lauros’) engaged Minter Ellison to act on their behalf in the following disputes:-
(a)Battista – Magistrates Court of South Australia, Action Number 6044 of 2011;
(b)Marciano – Supreme Court of South Australia, Action Number 560 of 2009;
(c)Leo Homes – District Court of South Australia, Action Number 1064 of 2005;
(d)Natural Stone – Magistrates Court of South Australia, Action Number 1406 of 2011; and
(e)Marble House of Australia Pty Ltd – Magistrates Court of South Australia, Action Number 3946 of 2006
together referred to below as ‘the disputes’.
[39] On or around 31 May 2011, the Lauros agreed to Minter Ellison’s ‘Terms of Engagement’, contained in the letter dated 31 May 2011, which recorded the terms of the retainer between Minter Ellison and the Lauros.
The plaintiff’s summons and statement of claim were filed in court on 28 June 2013. By the hearing dated 8 November 2013, the court had not received a defence. Pursuant to DCR 6R 92(2), a defence must be filed within 28 days of service of the plaintiff’s statement of claim.
At the hearing dated 8 November 2013, there was neither legal representation nor personal appearance for the defendant. On that occasion, I was informed by the representative of the plaintiff that a document entitled: “Defence, Set-Off and Counterclaim” had been delivered, but had not been filed and sealed by the court.
At the hearing dated 20 December 2013, Eric Lauro appeared on behalf of the defendant. I understand that Eric Lauro is the son of the defendant. I am also aware of the fact that Eric Lauro has a law degree but that he has never held a practising certificate and has never practised as a lawyer.[40]
[40] T43.34 – T44.03, Transcript of Proceedings (District Court of South Australia, 13/1810, Judge Slattery, 29 January 2014).
Eric Lauro informed me that an attempt was made to file this “Defence-Set-Off and Counterclaim” document by fax to the District Court Civil Registry.[41] Some correspondence between the registry of this Court and Eric Lauro concerning an attempt to file such document had been produced to the Court.
[41] FDN 3, Urgent Facsimile Transmission dated 4 August 2013.
Based on the evidence before the Court, the “Defence, Set-off and Counterclaim” was not filed in the Civil Court Registry until 15 January 2014.[42]
[42] FDN 16 – Defence. Set Off and Counter Claim dated 6 December 2013.
I have said in the Ruling delivered on the same day that ‘I am not able to discern that registry has informed Eric Lauro that any documents have been filed in answer to the plaintiff’s claim…Eric Lauro put a number of submissions to me today concerning his dealings with the Registry of this Court. It is not necessary for me to delve into the issue of what might have occurred in the registry of this Court because I have not received any evidence on the topic and those matters may not be capable of final resolution. I am not prepared to make any findings upon any of the matters put to me in this regard’.[43]
[43] Ruling settled by his Honour Judge Slattery on 23 January 2014.
I am still of the view that the only appropriate way for this matter to progress in accordance with the requirements of the court rules is for the defendant to obtain proper legal advice and to file and deliver proper pleadings according to the court rules. I also considered it to be appropriate that I set a time limit for the filing of a defence and/or any set-off and/or counterclaim by the defendant after obtaining legal representation. Taking into consideration the upcoming Christmas and New Year Period, I made an order that ‘on or before the close of business on 15 January 2014, the defendant file and deliver a Defence and if thought fit any set-off or counterclaim in answer to the statement of claim filed by the plaintiff and dated 28 June 2013.’[44] The “Defence, Set-off and Counterclaim” was received in court on 15 January 2014.[45]
[44] Ruling delivered on Friday 20 December 2013 at 9.38 am, p 4.
[45] FDN 16 – Defence, Set Off and Counter Claim dated 6 December 2013.

At the hearing held on 29 January 2014, there were a number of discussions about the pleadings filed by the defendant on 15 January 2014. I have said in my previous ruling delivered on 29 January 2014 that the pleading appeared not to have been prepared with the assistance of an admitted practitioner of this Court and it appears from what I have been told that the drafting of the pleading was undertaken by Eric Lauro.
I have expressed some of my preliminary views on the defendant’s filed pleadings. The pleadings appear to lack the necessary pleadings of facts.[46] I have detailed these matters in paragraph 34 to 45 of my ex tempore judgment delivered on 29 January 2014. The pleadings generally are inadequate in a number of aspects and have not been filed according to the court rules as I have previously mentioned.
[46] Nitschke & Ors v Foraco Australia Pty Ltd & Anor [2014] SASC 88, [27] et seq.
The defendant filed an affidavit sworn on 22 January 2014,[47] in which he informs me that he suffered from significant stress and distress on 6 December 2013 and following that hearing he suffered from cardiac complications which led to emergency hospitalisation. The defendant was not present in court on that day. The defendant says that he is ‘medically unfit to attend at court, participate in any sort of legal action and give legal instructions for a period of six (6) months.’[48] This is the not the first time that I have received medical certificates advising me that the defendant will be incapable of attending in court, participating in legal actions or giving instructions for a period of at least 6 months.
[47] FDN18.
[48] FDN18 – First Affidavit of Natale Lauro sworn 22 January 2014 and filed 24 January 2014 at para 10.
I have received a number of medical reports about The defendant’s current medical conditions and I have listed them as follows:-
(1) A letter of a psychologist Deborah Lawton dated 29 April 2013;[49]
[49] Attachment 1 to FDN 3 – Urgent Facsimile Transmission from Mr N Lauro to the Civil Registry on 4 August 2013.
Ms Lawson informs the Supreme Court that the defendant consulted her for a review of his mental state and appeared to be emotionally distressed. The psychologist recommended that the defendant has 6 months respite from having to attend at court and participate in any sort of legal action from the date of the statement.
(2) A medical certificate of Dr Mario Giordano dated 13 February 2013;[50]
[50] Attachment 2 to FDN 3 – Urgent Facsimile Transmission from Mr N Lauro to the Civil Registry on 4 August 2013.
The medical certificate informs that the defendant is receiving medical treatment and psychological treatment for post traumatic stress disorder, ischaemic heart disease and hypertension and will be unable to attend at court or participate in any sort of legal action for a period of 6 months from the date of the statement.
(3) A letter of Dr Julie Bradley, Cardiologist dated 7 May 2013;[51]
[51] Attachment 3 to FDN 3 – Urgent Facsimile Transmission from Mr N Lauro to the Civil Registry on 4 August 2013.
The letter informs Dr Giordano that the defendant is diagnosed with ischaemic heart disease, hypertension, severe sciatica, and other medical conditions and advises that he may have possible surgery in June 2013.
(4) A medical certificate of Dr Mario Giordano dated 30 December 2013;[52]
The letter informs that the defendant is receiving medical treatment for post traumatic stress disorder, hypertension and ischaemic heart disease, and that the defendant will not be able to attend court, participate in any sort of legal action, or give legal instructions for a period of 6 months.
(5) A letter from Dr Enzo De Angelis to Dr Mario Giordano dated 16 December 2013;[53]
I have previously referred to this document in my reasons of 20 December 2013 and I will not repeat those matters here.
(6) A medical certificate of Dr Martinelli Nadal dated 22 January 2014;[54]
I have also previously referred to this document in my reasons of 29 January 2014.
(7) A letter from Dr Martinelli Nadal to Dr Giordano dated 22 January 2014;[55]
Dr Nadal reports further in relation to clinical symptoms of the defendant, and that a further surgical procedure is planned to deal with complications arising out of earlier surgery.
(8) A letter from Dr James Kollias to Dr Giordano dated 25 June 2013;[56]
Dr Kollias recommended a thyroid surgery which may take place sometime in the next 12 months to deal with difficulties with the defendant’s thyroid.
[52] FDN 18A, Annexure to Affidavit of Natale Lauro dated 22 January 2014.
[53] Ibid.
[54] Ibid.
[55] Ibid.
[56] FDN 18B, Annexure to Affidavit of Natale Lauro dated 22 January 2014.
All of the above medical information discloses that the defendant suffers from a number of maladies and is under the care of a number of cardiologists, surgeons and other specialists. I have made mention of those in the ex tempore judgment that I published on 29 January 2014 and that those specialists have opined about the capacity of the defendant to participate in the current and future legal proceedings.
The defendant appears to suffer from a number of medical complications which currently limit his capability to fully participate in the current legal proceeding based on the medical evidence on its face value. I do not expect that to continue to be the case, based on this material.
Apart from the affidavit of the defendant sworn on 22 January 2014,[57] the Court has thus far received 7 affidavits[58] of Eric Lauro regarding the current matter before the Court and a number of other interlocutory applications concerning some pre-trial matters.
[57] FDN 18, Affidavit of Natale Lauro dated 22 January 2014.
[58] First Affidavit of Eric Lauro dated 27 September 2013; Second Affidavit of Eric Lauro dated 1 November 2013; Third Affidavit of Eric Lauro dated 6 November 2013; Fourth Affidavit of Eric Lauro dated 18 December 2013; Fifth Affidavit of Eric Lauro dated 24 January 2014; Sixth Affidavit of Eric Lauro dated 10 February 2014; and finally Seventh Affidavit of Eric Lauro dated 24 February 2014.
Eric Lauro appeared before me on behalf of the defendant on many occasions.[59] I understand from information received in court that he has also appeared on behalf of the defendant in other courts, including the Supreme Court and the Magistrates Court representing the interests of his father.
[59] Hearings in the District Court of South Australia held on 20 December 2013, 29 January 2014 and 20 February 2014.
Up until now, it is my understanding that the defendant has not yet obtained legal representation. No reasons or explanation have been given about why a solicitor has not yet been retained to act for the defendant. I have been advised by Eric Lauro that some attempts have been made to obtain legal advice but no solicitor has been retained thus far to represent the defendant in this matter. I have mentioned before in my reasons delivered on 20 December 2014 and 29 January 2014 that this is a quite unsatisfactory situation. I was and am still of the view that the only way for this matter to progress properly to trial in accordance with the court rules is for the defendant to retain legal representation.
Following the hearing dated 29 January 2014, the plaintiff made an interlocutory application seeking an order of the court to appoint Eric Lauro as the litigation guardian of the defendant Mr Lauro in the current and following court proceedings pursuant to DCR 6R 4, 78 and 79.
Representation of party under disability
DCR 6R 78 provides:-
78—Representation of party under disability
(1)As a general rule, a person under a disability (a protected person) may only take or defend proceedings through a guardian who has authority to represent the interests of the protected person (a litigation guardian).
Exception—
The Court may, however, permit a protected person to act personally in bringing, or taking any step in, proceedings.
(2)The litigation guardian is responsible for the conduct of the proceedings on behalf of the protected person and may take any step in the proceedings and do anything else that the protected person might have done if of full age and capacity.
(3)A party to an action who becomes aware that another party is a protected person and is not represented by a litigation guardian as required by this rule must inform the Court of that fact.
(4)A judgment or proceeding of the Court is not invalid because a party was not represented by a litigation guardian as required by this rule, but the Court may set aside the judgment or proceeding if satisfied that the party has been substantially prejudiced through the lack of such representation.
A person under a disability is defined in DCR 6R 4 as:-
disability—each of the following is a person under a disability—
(a)a child;
(b)a person whose affairs are administered (wholly or in part) under a law for the protection of persons suffering from mental or physical disabilities;
(c)a person who is not physically or mentally able—
(i)to manage his or her own affairs; or
(ii)to make rational decisions about taking, defending or settling proceedings (or to communicate decisions to others);
All of the medical evidence from different surgeons, cardiologists and other specialists appear directed to whether the defendant’s situation fits within the scope of sub-paragraph (c)(ii) of the rule, that he is a person who is ‘not physically or mentally able to make rational decisions about taking, defending or settling proceedings (or to communicate decisions to others)’.
DCR 6R 78(1) provides that “…as a general rule…” a litigation guardian should be appointed. An exception to the general rule is particularised in the post script provision of that sub-rule. On what I have seen I am unable to say that the defendant was not actively involved in taking part in proceeding at all. I have not personally seen him in court since I have had conduct of this matter. His son, Eric Lauro appeared on his behalf on many occasions. In addition, almost all of the medical specialists opined that the defendant cannot participate in any way in any legal proceedings for at least a period of 6 months. At the moment it is something of an imponderable whether the exception to the general rule applies in this case.
DCR 6R 79 allows the Court on application by an interested person or on its own motion to permit or appoint a suitable person to be a protected person’s litigation guardian.
79—Litigation guardians
(1)Any of the following may be the litigation guardian of a protected person—
(a)a parent or guardian;
(b)a person who holds an enduring power of attorney authorising the person to act on the person's behalf;
(c)a person who has some other lawful authority to manage or administer the person's affairs;
(d)a person permitted or appointed by the Court to represent the interests of the protected person.
(2)However—
(a)if a person's authority would not (apart from these rules) extend to representing the protected person in proceedings before the Court—the person requires the Court's permission to act as litigation guardian in the proceedings; and
(b)a person who has an interest in proceedings before the Court (apart from his or her interest as representative of the protected person) cannot act as the protected person's litigation guardian in the proceedings unless the Court directs to the contrary.
(3)The Court may, on application by an interested person or on its own initiative, permit or appoint a suitable person to be a protected person's litigation guardian.
(4)The Court may remove the litigation guardian of a protected person (whether or not appointed by the Court) on any reasonable ground and may permit or appoint some other person to be the litigation guardian.
(5)The Court may require the solicitor for a protected person to inquire into, and give it an assurance about, the suitability of a proposed litigation guardian.
The plaintiff’s application in this case is to have Eric Lauro appointed by the Court as the litigation guardian to be fully responsible for the conduct of the proceeding on behalf of his father until such time as the defendant’s physical condition improves to enable him to make rational decisions about taking, defending or settling proceedings or to give instructions to others. Plaintiff’s counsel submits that Eric Lauro has already taken a role that might be expected of a litigation guardian. Therefore, according to DCR 6R 79(1)(c), Eric Lauro should be appointed as the litigation guardian of a protected person because he is a person ‘who has some other lawful authority to manage or administer the person’s affairs’.
Eric Lauro strongly opposed the application. He informed me on 29 January 2014 that his involvement so far has been only ‘to provide assistance and an update to the court in relation to my father’s condition’.[60] He further told the Court that ‘I am not here to argue any case, I am not here to take responsibility for pleading, make pleadings...I am here to inform the court, rather than have no-one present, I am here to inform the court of what the position is and the purpose of the application filed in time…’[61]
[60] T44.25, 29 January 2014.
[61] T41.12 - T41.22, 29 January 2014.
I make the observation that the above claims made by Eric Lauro were indeed contrary to and different from to the impression I had obtained during the court proceedings so far for the reasons that I set out below.
Affidavits
Eric Lauro has filed 7 Affidavits so far in support of three interlocutory applications[62] before this Court.
[62] Interlocutory Application dated 27 September 2013; Interlocutory Application dated 22 January 2014; Interlocutory Application dated 10 February 2014.
At the hearing dated 20 February 2014, Eric Lauro was questioned by me about how the defendant can still be capable of requesting that an interlocutory application be filed seeking orders that I vacate the hearing and disqualify myself when all the medical evidence produced suggests that he is incapable of giving instructions. At that time, Eric Lauro admitted to the court that an interlocutory application was lodged without his father’s knowledge. The relevant transcript reads as follows:-
His Honour: - how is it that your father is – I need to know this and have a clear understanding of this.
Mr Lauro: Yes.
His Honour: How is it that you say that your father and the medical evidence produced suggests your father is incapable of giving instructions –
Mr Lauro: Yes.
His Honour: - yet an interlocutory application seeking orders that I vacate the hearing and disqualify myself –
Mr Lauro: Yes
His Honour: - that there be a stay –
Mr Lauro: Yes.
His Honour: - and that there be – all applications be heard by another judicial officer could come forward? Those are extremely important matters.
Mr Lauro: Yes.
His Honour: How do you explain that, in light of the medical evidence?
Mr Lauro: Well, those are requests that I am making, given my –
His Honour: You haven’t spoken to your father about it?
Mr Lauro: No. My affidavit is clear on why I am making those points.
His Honour: I am sorry, I want to be very clear is that this is your application, FDN28 is your application and your father doesn’t know about it.
Mr Lauro: To the extent –
His Honour: Please answer my question. Do you want it again?
Mr Lauro: No I understand.
His Honour: Just answer my question, please.
Mr Lauro: Yes, FDN 28.
His Honour: Yes, interlocutory application, 10 February 2014.
Mr Lauro: Yes, para.1.if paragraph is the right reference, that’s been made by me given the experience since 20 December. Para.2 is consistent and known by my father, given my past discussions with my father.
His Hour: But your father hasn’t authorised this application to be brought?
Mr Lauro: My father’s authorised in the past to do what’s necessary.[63]
[63] T24.24 - T26.19, Transcript of Proceedings (District Court of South Australia, 13/1810, Judge Slattery, 20 February 2014).
This evidence is contrary to what Eric Lauro has told the Court that he was not here to argue any case but merely to provide assistance and an update to the court about his father’s condition. Eric Lauro made the decision to bring the application (FDN 28) unilaterally but based on some general authority from his father to do “what is necessary”.
Eric Lauro’s conduct may be seen to be equivalent to the fulfilment of the full responsibilities given to a litigation guardian by DCR 6R 78(2), namely that he is responsible for the conduct of the proceedings on behalf of the protected person, i.e. his father, and may take any step in the proceedings and do anything else that the protected person might have done if of full age and capacity.
In my view this situation is quite unacceptable. It means that the court is required to hear and decide applications purportedly brought by an unrepresented party when that is not the case. The application FDN 28 was brought and pursued after the unilateral decision of Eric Lauro and without the knowledge of the defendant. The defendant has not attended the Court and has not appointed solicitors to act for him.
In Aon Risk Services Australia Limited v Australian National University,[64] Heydon J said at paragraph [137] as follows:
[137] The character of the litigation commenced. The litigation thus commenced was commercial litigation. While in general it is now seen as desirable that most types of litigation be dealt with expeditiously, it is commonly seen as especially desirable for commercial litigation. Its claims to expedition may be less than those of proceedings involving, for example, extraordinary prejudice to children; or the abduction of children; or a risk that a party will lose livelihood, business or home, or otherwise suffer irreparable loss or extraordinary hardship, unless there is a speedy trial. But commercial litigation does have significant claims to expedition. Those claims rest on the idea that a failure to resolve commercial disputes speedily is injurious to commerce, and hence injurious to the public interest.
As Rogers J stated in Collins v Mead:
"For example, if banks are unable to collect overdue loans from borrowers speedily, if small traders can not recover monies owed to them speedily the commercial life of the [c]ommunity is detrimentally [a]ffected. The consequences of delay in the hearing of a commercial dispute ... will impact not just on the two or three persons or companies who are the immediate parties, but may have an effect on the creditors of the business, on employees, and perhaps on other traders unrelated to the immediate dispute."
Commercial life depends on the timely and just payment of money. Prosperity depends on the velocity of its circulation. Those who claim to be entitled to money should know, as soon as possible, whether they will be paid. Those against whom the entitlement is asserted should know, as soon as possible, whether they will have to pay. In each case that is because it is important that both the claimants and those resisting claims are able to order their affairs. How they order their affairs affects how their creditors, their debtors, their suppliers, their customers, their employees, and, in the case of companies, their actual and potential shareholders, order their affairs. The courts are thus an important aspect of the institutional framework of commerce. The efficiency or inefficiency of the courts has a bearing on the health or sickness of commerce.[65]
[64] (2009) 239 CLR 175.
[65] Ibid, 137 (citations omitted).
I acknowledge that this decision was made in the context of a case where both parties were represented but I am unable to see that this is a point of distinction in the case at bar. The sentiments expressed, though plainly obiter, are universal in their reach.

However meritorious are the views expressed elsewhere about how the courts are to deal with unrepresented parties in litigation, in my view that cannot and must not lead to misuse of the court’s processes and resources. And a proper balance must also be struck having regard to the interests of the other party(s) to the proceedings. Rhetorical questions obviously arise: how much leeway is sufficient; and what is the level of indulgence to be given to such participants; and what importance is now to be given to the changed nature of the court’s resources due to decisions made outside of the Court? These questions arise from many relevant considerations one of which is the necessity to appreciate the realities of the position of courts having regard to changed modern circumstances.
One imperative in the administration of justice is the speedy and efficient resolution of disputes. That will never occur when this action is beset by what has elsewhere been described as “torpid languor” resulting largely from the activity (and inactivity) of the defendant as a self represented party. It is entirely inimical to the proper administration of justice for this action to be continually delayed. If it be thought that my duty is to afford to this defendant as an unrepresented party every indulgence necessary to assist him to bring his case to court but to the detriment of what is now plainly understood as the interests of the proper administration of justice and the alacrity required by modern circumstances, then such thinking should and must change. Such sentiments must now take account of the Court’s changed resources. That is not to say that the defendant as an unrepresented party may be prejudiced because of that status, but in the modern imperative, an unrepresented party will be required to be actively and timeously involved in an action in the same way as would be required of a party who or which is represented.
Pleadings
The medical evidence provided suggests that the defendant will not be in the position or have the capacity to participate in any sort of legal action or give legal instructions for a period of at least 6 months from the date of the medical certificate. The earliest medical certificate before this Court is dated 13 February 2013.[66] The latest medical certificate before this Court is dated 22 January 2014.[67]
[66] Attachment 2 to FDN 3 – Urgent Facsimile Transmission from Mr N Lauro to the Civil Registry on 4 August 2013.
[67] FDN 18A, Annexure to Affidavit of Natale Lauro dated 22 January 2014.
The “Defence, Set-off and Counterclaim” was received and stamped by the District Court Civil Registry on 15 January 2014. I am aware that there were some issues with the filing of such document in the Civil Registry, however, even if such document was received earlier than 15 January 2014, it was still prepared and filed within the period suggested by the medical evidence when the defendant was (said to be) incapable of giving legal instructions.
If the defendant was not able to provide legal instructions in drafting pleadings, a reasonable presumption would be that Eric Lauro was the person who drafted the pleadings of the defendant. In addition, Eric Lauro fully participated in court hearings on 20 December 2013 and 29 January 2014.
Requests by the defendant
At paragraph 2 of the first Affidavit of the defendant[68], it is said that:-
This affidavit has been prepared with the assistance of my son, Eric Lauro, whom I have authorised to speak on my behalf, as next of kin, in Court matters involving me.
[68] FDN 18 First Affidavit of Natale Lauro dated 22 January 2014.
Again, at paragraph 1 of the Interlocutory Application dated 22 January 2014, it is said that:-
The Defendant, NATALE LAURO, applies for the following orders or directions:
(1) That the Defendant’s son, Eric Lauro, be allowed to speak on their behalf at the hearing of 29 January 2014 and future ones, as required.
On 29 January 2014, Mr Mitchell for the plaintiff raised the possibility of Eric Lauro being appointed as the litigation guardian for his father. During that hearing, Eric Lauro then informed me that he withdrew paragraph 1 of FDN17. I have discussed in length about this curious development in paragraphs [27] to [30] of the ruling delivered by me on 29 January 2014 and especially about the position announced by Eric Lauro in court without needing an adjournment to seek instructions from his father.
There is sufficient evidence before this Court raising the inference that Eric Lauro has had some power over proceedings similar perhaps to the way that his father would have if he was always of full capacity.
Cost liability of litigation guardians
I have mentioned in my ruling delivered on 29 January 2014 that as a lawyer, Eric Lauro may be aware of the liability for costs that once arose for persons acting as a litigation guardian for the protected person. However, DCR 6R 267(2) stipulates that litigation guardians are not liable unless costs are otherwise ordered. However, the litigation guardian is liable for the costs of solicitors retained by him.
Conclusion
I have formed the view that I am not prepared to appoint Eric Lauro as litigation guardian on behalf of the defendant. The history of the matter is replete with appearances by Eric Lauro and what may reasonably be inferred to be his direct or indirect involvement in the action. My task is to bring this litigation to a position where it may be sent to trial. In my estimation, that will occur more quickly if the focus of this Court is upon any other interlocutory processes that are required to be completed before trial. The interests of justice are best served by my active participation in that process. I have formed this view based upon everything that I have learned in the many interlocutory proceedings that have occurred to date, that this approach is the optimum use of the court’s resources.
The reasons are obvious enough. The factual history that I have set out shows that, on occasion, Eric Lauro has taken steps in these proceedings on behalf of the defendant or has made decisions on behalf of the defendant without referring the matter or issue to the defendant. Eric Lauro appears to rely upon a general authority from the defendant to ‘… do what is necessary…’. In my opinion this is an unsatisfactory position for several reasons. First, the defendant properly advised, may have acted differently. Second, there is a risk that the litigation will eventually become that of Eric Lauro and so expose him to personal costs orders. Third, even if it may be said that the litigation would not become that of Eric Lauro, he may remain the subject of a costs application by the plaintiff because of the nature of the role taken by him in the proceedings.
Finally, Eric Lauro is vehemently opposed to the proposed appointment. In my opinion there is no utility in making such an appointment in those circumstances because of the risk of appeal and the delays associated with an appeal. In my view, mandatory cooperation of a person to be a litigation guardian in these particular circumstances is not consistent with the philosophy of the rule or the purpose of the rules as a whole.
It is necessary that I now turn to the question of Eric Lauro continuing to appear on behalf of his father and the defendant’s application in that regard.
DCR 6R 22 provides that a party to the proceedings before this Court may only be represented by a lawyer unless an application is made for the court’s discretion to permit the non-legal representation at trial if it is necessary and convenient in the interests of justice. The rule reads as follows:
[DCR 6R] 22—General principles of representation
(1)A person may only be represented in proceedings before the Court by a lawyer.
Exceptions—
1 The Court may, however, authorise representation of a company by a director who is a non-lawyer (see rule 27).
2 In the Criminal Injuries Division of the Court the Crown may be represented by a person nominated by the Attorney General in preliminary or interlocutory proceedings (see Section 10A of the Criminal Injuries Compensation Act 1978 and Section 26 of the Victims of Crime Act 2001.)
(2)A party who appears personally in proceedings before the Court may, with the Court's permission, be assisted in court in the presentation of his or her case by a person approved by the Court.
In Damjanovic v Maley[69], the court discussed a number of relevant factors for the courts to consider when exercising its discretion to allow non-legal representation. In Giancaspro v SHRM (Australia) Pty Ltd[70], Doyle CJ and Bleby J applied the approach discussed in Damjanovic v Maley, and summarised relevant factors for consideration when exercising such discretion. They are:
[13] First was the complexity of the case; non-legal representation being less likely to be allowed in a case of some complexity.
[14] Second, were genuine difficulties of the unrepresented party, such as unexpected language difficulties and emergencies.
[15] The third relevant factor was the unavailability of disciplinary measures and a duty to the Court by lay advocates. This is a matter of some significance mentioned in most of the cases. As Stein JA pointed out the Court is entitled to place reliance on the duty of a legal practitioner to act with candour towards the Court and not knowingly to mislead the Court, on pain of disciplinary measures being taken against him or her. That is not the position of a lay advocate. Stein JA further observed: “[W]ith unqualified and uninsured lay advocates the court loses the benefit of the overriding duty and clients are at a distinct disadvantage”.
[16]Fourth was the protection of the client and the opponent, clients being placed at a considerable risk at the hands of unqualified, unaccredited and uninsured lay advocates.
[17] In the fifth place, the Court pointed out that inferior courts and tribunals, with large numbers of unrepresented litigants, may be more likely to grant leave to unqualified persons, usually because the matters are less complex, but that higher Courts would be less likely to grant leave.
[18] Finally, as recognised in O’Toole v Scott, the guiding principle in the exercise of the discretion is “the public interest in the attainment of the ends of justice. The public has an interest in the effective, efficient and expeditious disposal of litigation in the courts. As a general rule this can best be achieved by parties employing qualified lawyers”. Stein JA quoted with approval an observation of the present Chief Justice of the High Court:
The adversary system assumes, in the interests of both justice and efficiency, that cases will be presented to Courts by skilled professionals. To the extent to which that assumption breaks down, so does the system.
[69] (2002) 195 ALR 256.
[70] [2005] SASC 340.
In Giancaspro v SHRM (Australia) Pty Ltd, the non-legally trained lay advocate sought leave to appear for the unrepresented appellant, and the Court considered all of the above relevant factors, but was unable to find any of the factors which would favour the granting of such leave.
I will consider each of these factors in the same order as they appear in the decision.
The present case is one of some complexity because of the defence and counterclaim of the defendant. A particular level of legal skill will be required to properly ventilate the defendant’s case before the court. In my opinion, this is a significant factor in my considerations.
As I have not seen the defendant, I am unable to assess whether there are any genuine difficulties of the unrepresented party such as language difficulties. I am aware of the content of the various medical reports but I am in a position where, not having seen the defendant nor being in a position to make any assessment of any difficulties that he might currently be labouring under, I am left with the content of the medical reports. To an extent, those reports appear to indicate an increase in the medical symptoms of the defendant concomitant with the need for the defendant to confront the obligations upon any litigant in his position.
Eric Lauro is not an admitted practitioner of the Court. There are no disciplinary measures available to the court in respect of his behaviour. The Court is not able to place reliance upon Eric Lauro to act with candour towards the Court and not knowingly to mislead the court. I have already indicated earlier in these reasons that, without informing the court, Eric Lauro unilaterally made decisions to commence an interlocutory application in the name of his father but without the express permission of his father and without his father’s express knowledge but on the basis that his father has given him general authority to take such steps. In my opinion, this is a most concerning development. The Court (and the plaintiff) is at a distinct disadvantage in those circumstances. The defendant could also be at a disadvantage for the reasons that I have stated earlier. This has weighed heavily in my consideration of this application.
For the same reasons, it is possible that the defendant may be at a risk in the event that the current arrangements are allowed to continue. In my opinion, accepting at face value the medical material put before me, there may be some need to enquire as to the protection of the defendant. The opposite may be the case but that assessment, one way or other, cannot occur whilst the current circumstances pertain, namely that the defendant has not presented himself to the Court nor has he been represented.
I have already made comments in relation to the complexities of the matters raised by the statement of claim, the defence, set off and counter claim. This is a complex matter which makes it less likely that this Court would grant the leave sought.
I am acutely aware of the public interest in the attainment of the ends of justice and in particular, the effective, efficient and expeditious disposal of litigation in the courts. I am also particularly aware of the need for the efficient use of court resources. In my opinion, these ends can only be obtained by parties retaining solicitors who are admitted practitioners and who understand their role as officers of the court. No explanation has ever been given to me as to why the defendant has not retained solicitors. The imperative, from my point of view, is the interests of both justice and efficiency. I have formed the very clear view that the interests of both justice and efficiency are not served by continuing to allow Eric Lauro to appear to speak on behalf of his father, the defendant.
For all of the reasons that I have set out above, it is my very clear view that no permission should be granted to Eric Lauro to appear personally in these proceedings to assist in the presentation of the case of the defendant. I reject the defendant’s application.
I will hear the parties as to final orders and on the question of costs.