Moon, J.K. v Minister for Immigration Local Government & Ethnic Affairs

[1990] FCA 208

JUDGMENT No. ........ ...... l... 20x &

IN THE FEDERAL COURT OF AUSTRALIA )

)

VICTORIA DISTRICT REGISTRY	)	NO VG 132 of 1990
)
GENERAL DIVISION	)

BETWEEN: JONG K1 MOON

(Applicant)

AND :	MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
(Respondent)

Coram: Ryan J

Date:	15 May 1990	24 MAY 1990
Place:	Melbourne	AUSTRALIA
PRINCIPAL
-lsmY

EX TEMPORE REASONS FOR JUDGMENT

A point has been taken on behalf of the respondent at the outset of these proceedings, that Mr J.D. Little, who has announced his appearance for the applicant, is not entitled to practise as a barrister or solicitor, or both, in this Court.

of Practitioners in relation to Mr Little to be struck out.

The application and the affidavit in support disclose, on their face, that Mr Little purports to act as the solicitor for the applicant. Mr Little has conceded that the Registrar of the High Court, purportedly pursuant to s.55C(3) of the Judiciary Act 1903, has caused the particulars in the Reglster

I have indicated in the course of argument that I am not prepared in these proceedings to examine the propriety of that action by the Registrar of the High Court. Nor would it be appropriate, even if this Court had jurisdiction, to hear argument on any of the manifold issues between Mr Little and the Law Institute of Victoria, some of which have been litigated to finality in the Supreme Court of Victoria.

A litigant has a general right to appear by a solicitor or in person; see 0.4 r.14 of the Rules of thls Court. I consider that the qualifications or entitlement of persons to act as barristers and solicitors in this Court and the High Court are exhaustively prescribed by the Judiciary Act. In the light of that statutory code I can discern no residual discretion in this Court to allow a person to institute any proceedings or appear before the Court on behalf of a litigant who is a natural person.

This Court, although a superior court of record, is not

a court of unlimited jurisdiction and no jurisdiction has been

practise before it. Accordingly, I can flnd no power in s.23	conferred on it by any statute to admit legal practitioners to
of the Federal Court of Australia Act 1976 whereby this Court could give Mr Little an interim right to practise before it, either in prosecution of this particular application or generally.
The inability of a solicitor, who has ceased to have the entitlement to practise which is conferred by the Judiciary
~ c t , to continue to act for a party is recognised by 0.7 r.6(1) of the High Court Rules which, in the absence of any corresponding rule of this Court, is made applicable mutatis mutandis to this Court by s.38(2) of the Federal Court of Australia Act.
Moreover, it was held by Rich J. in Kenna v. Conolly (1943) 17 A.L.J. 32 that a barrister and solicitor whose names were not on the Register of Practitioners kept pursuant to what was then s.49 of the Judiciary Act were disqualified from appearing before the High Court, and no fees were payable to them for appearances undertaken before their disqualification had been discovered.
In the circumstances, and having regard to the matters to which I have referred, the proper course is to order that this application be dismissed without prejudice to the right of the applicant, either in person or by a solicitor presently
application. I make that order. entitled to practise in this Court, to issue a fresh I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment of His Honour Mr Justice Ryan.

Associate:

Date: 5 Mq ' 9 9 0