Myers v Victorian Civil and Administrative Tribunal

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2023 00709

BETWEEN:

JOHN MYERS	Applicant
v
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL & ORS (according to the attached Schedule)	Respondents

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JUDGE:	Watson J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	15 July 2024
CASE MAY BE CITED AS:	Myers v Victorian Civil and Administrative Tribunal & Ors
MEDIUM NEUTRAL CITATION:	[2024] VSC 412

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PRACTICE AND PROCEDURE – Application for a McKenzie Friend – Applicant seeks McKenzie friend to make oral submissions on his behalf – Whether applicant has demonstrated special or exceptional circumstances that warrant a McKenzie friend to make oral submissions on his behalf – No special or exceptional circumstances demonstrated – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	No appearance for the Applicant
For the First Respondent	No appearance for the Respondents
For the Second Respondent
For the Third Respondent

HIS HONOUR:

Mr John Myers applies for leave to appeal a decision of the Victorian Civil and Administrative Tribunal (‘VCAT’). His application for leave, and the appeal proper, are fixed for hearing on 30 July 2024.
Mr Myers has made an application that at the hearing he be permitted the assistance of a ‘McKenzie friend’, Dr Manu Chopra, to make oral submissions on his behalf. At Mr Myers’ request, I am dealing with this application on the papers.
Mr Myers’ arguments in support of his application for a McKenzie friend may be summarised as follows:
(a)where a party is not represented by a lawyer it is permissible to appoint a McKenzie friend for the purposes of making oral submissions in ‘special circumstances’;
(b)he is not proficient in articulating his ideas in verbal argument;
(c)he has suffered from a ‘serious mental disability’ for years, which impacts his cognitive ability;
(d)he has not graduated from high school;
(e)he has tried to obtain the assistance of 115 lawyers, none of whom responded to his emails seeking assistance;
(f)he felt ‘humiliated’ at VCAT when he was asked questions by the Tribunal;
(g)Dr Chopra is more familiar with the Freedom of Information legislation (‘FOI’) than he is and has assisted him in the preparation of his written argument; and
(h)special circumstances for the appointment of Dr Chopra as a McKenzie friend to make oral submissions exist.
In making the above submissions, Mr Myers rests heavily on the proposition that his situation is a stronger case than Kiley v McMahon (‘Kiley’).[1]
[1][2024] VSC 228 (‘Kiley’).
Mr Myers also asserts that to not have Dr Chopra making submissions on his behalf would constitute a denial of natural justice, would contravene various sections of the Charter of Human Rights and Responsibilities 2006 (Vic) (‘Charter’) and ‘might’ constitute indirect discrimination on the basis of disability under the Equal Opportunity Act 2010 (Vic) (‘Equal Opportunity Act’).
Both the second and third respondent opposed Mr Myers’ application. The third respondent argued that:
(a)Mr Myers had previously exhibited no difficulties in representing himself;
(b)Mr Myers had produced no objective evidence of his medical issues;
(c)The proceeding does not raise a particularly complex question; and
(d)Dr Chopra is entirely unsuited to assuming the role of an advocate in the proceeding.
The second respondent’s submissions focused entirely on the unsuitability of Dr Chopra as an advocate for Mr Myers.
In reply submissions, Mr Myers went to great lengths to rebut the contentions of the second and third respondents in relation to Dr Chopra’s suitability as an advocate, sought to supply some evidence and submissions in relation to his medical conditions and referred again to a number of provisions of the Charter.
For the reasons which follow, I would not permit Mr Myers to have Dr Chopra present oral submissions on his behalf at the hearing of this matter. My conclusions may be summarised as follows:
(a)First, I am not satisfied that special circumstances exist which warrant a departure from the usual reluctance to permit a lay advocate to represent a litigant;
(b)Secondly, I am satisfied, on the basis of the materials before me, that Dr Chopra would be an unsuitable person to act as a lay advocate for Mr Myers in the event that I had been satisfied that special circumstances existed; and
(c)Thirdly, Mr Myers will have a fair opportunity to present his case before me. He has already had an opportunity to provide written submissions. He will be afforded the opportunity to make oral submissions at the hearing of this matter. There will be no denial of natural justice or contravention of any Charter rights, nor any possibility of a contravention of the Equal Opportunity Act.
In Kiley, Harris J summarised the principles relating to permitting a McKenzie friend to make submissions on behalf of another in the following terms:
The question of whether a party should be permitted to have a ‘McKenzie friend’ present in a hearing is a matter of practice and procedure for the trial judge to determine by reference to all of the circumstances of the case. The discretion extends to permitting a person who is not legally qualified to make submissions on behalf of the represented person. A person who is not legally qualified will be given leave to represent an unrepresented litigant as a McKenzie friend, as an exception to the rule that only qualified legal practitioners may appear for litigants, when there are special circumstances making it necessary for the administration of justice. This exceptional nature of the grant of leave arises because of the importance of legally qualified practitioners not only being trained in the law (and so best equipped to assist the court with the legal issues that arise) but also subject to professional rules and disciplinary sanctions for non-compliance with those rules.
In complex cases in the higher courts there is a particular need for caution in assessing whether the grant of leave to an unqualified person to appear will serve the administration of justice. There is a risk that an unqualified representative will not be able to address the legal issues involved in a way that assists the Court. It is undesirable to permit the development of any practice which will deprive the Court of the assistance of skilled professionals in any but the most exceptional cases.[2]
[2]Ibid [19]-[20].
I am not satisfied that Mr Myers has demonstrated special or exceptional circumstances which would make it desirable that he have a McKenzie friend make oral submissions on his behalf.
Mr Myers has previously represented himself, both in this Court and in VCAT. In none of those previous proceedings does it appear that the relevant presiding officer identified any difficulty in Mr Myers making submissions on his own behalf.
In particular, as recently as January of this year, Mr Myers appeared on his own behalf in this Court in a successful application seeking judicial review of orders of the Magistrates’ Court of Victoria granting interim personal safety intervention orders.
I have not overlooked that in this matter Mr Myers made an application seeking orders that the Court appoint a pro bono lawyer to represent him.[3] The Court noted in the judgment on that application that one of Mr Myers’ reasons for seeking legal assistance was to ease the burden imposed upon him by the many cases he was running on his own behalf.[4]
[3]Myers v VCAT [2024] VSC 109.
[4]Ibid [10], [14].
In short, whilst Mr Myers now asserts that he has difficulty making oral arguments and is significantly impeded by his lack of formal education, there is no indication that this has prevented him from representing himself in the past.
Mr Myers also refers to his medical conditions. There is no evidence that those medical conditions will in any way impede his presentation of oral argument on his own behalf. In voluminous materials filed in reply (most of which were completely irrelevant), Mr Myers included some documentary evidence apparently indicating diagnoses of psychosis, schizophrenia and epilepsy, amongst other conditions. There is no evidence which would suggest that any of those conditions are currently manifesting in a way which would preclude Mr Myers from making oral submissions on his own behalf at the hearing on 30 July 2024.
Mr Myers refers, in particular, to having contacted 115 barristers seeking representation without success, and contends that in this respect his case is even stronger than the circumstances which pertained in Kiley where the uncontested evidence was that Ms Kiley had contacted 75 lawyers seeking representation. Whilst the unavailability of legal representation is a necessary condition for the appointment a McKenzie friend, it is clearly not sufficient. In this case, it is not decisive and does not, on its own, constitute a special circumstance.
The decision in Kiley needs to be understood in context. Her Honour there dealt with a situation in which Ms Kiley had been represented by a McKenzie friend in the hearing below, the application for a McKenzie friend in the hearing before her Honour was not opposed, and the application was made very shortly before the hearing of the matter was due to commence.
The circumstances of this case are different. Mr Myers was not represented by Dr Chopra before VCAT. The respondents in this matter oppose the McKenzie friend application and Mr Myers’ application for a McKenzie friend can be dealt with and resolved sufficiently before the scheduled hearing to give him adequate time to prepare submissions on his own behalf.
Mr Myers has obtained the assistance of Dr Chopra in his extensive written outline of submissions in this matter. Whilst the case is not without some complexity (as indeed is the situation with most cases before this Court), there is no basis, on the evidence before me, to conclude that Mr Myers will not be able to advance oral submissions in support of his case at the trial. In any event, as the passage extracted from Kiley above indicates, the complexity of the matter is a factor often tending away from the appointment of a lay advocate as a McKenzie friend for the purposes of making oral submissions.
Overall, having considered the materials before me, and without regard to the matters which the respondents put regarding Dr Chopra, I am not satisfied that Mr Myers has demonstrated the special or exceptional circumstances which are required for the appointment of a McKenzie friend to make submissions on his behalf.
Even if I had been minded to allow a McKenzie friend to make submissions on Mr Myers’ behalf, it is apparent from the submissions filed on behalf of the second and third respondents that Dr Chopra is an unsuitable person to act in that capacity in this case. In this regard, the second and third respondents rely on a series of findings (which I discuss below) of this Court and VCAT regarding the behaviour of Dr Chopra as an advocate on his own behalf. Mr Myers says I should pay no regard to those findings because they are inadmissible under ss 91, 97 and 98 of the Evidence Act 2008 (Vic) (‘Evidence Act’).
Section 98 of the Evidence Act is not relevant to the present circumstances. The materials relied upon by the second and third respondents do not seek to rely on the similarity of events to suggest that it is improbable that those events occurred coincidentally.
Section 91 of the Evidence Act does not apply. The conduct of Dr Chopra as an advocate on his own behalf was not a ‘fact in issue’, in the various proceedings to which the second and third respondents refer.[5]
[5]Attorney General v Chan [2011] NSWSC 1315, [46]–[47].
As to s 97 of the Evidence Act, I think the appropriate characterisation of the evidence of Dr Chopra’s past behaviour as an advocate is that it is adduced to establish a tendency. However, in the circumstances of this case the evidence should be admitted. I do so having regard to the following:
(a)I am satisfied that this evidence would have significant probative value in relation to Dr Chopra’s suitability to act as McKenzie friend;
(b)the written submissions of the second and third respondents filed on this issue have given Mr Myers reasonable notice of the substance of the evidence on which they seek to rely; and
(c)to the extent that notice has not been given in accordance with the precise terms of regulation 8(b) of the Evidence Regulations 2019 (Vic), I regard it as appropriate pursuant to s 190 of the Evidence Act to waive compliance with s 99 of the Evidence Act to the extent it requires compliance with that regulation and have done so because:
(i)compliance with the provisions of regulation 8(b) would require unnecessary expense and delay;
(ii)the evidence is important in determining whether Dr Chopra is a suitable person to act as a McKenzie friend giving oral submissions on behalf of Mr Myers; and
(iii)the findings of VCAT and of this Court as to the conduct of a lay advocate have an inherent probative value as to the issues which might arise if that person were to be appointed a McKenzie friend acting as a lay advocate.
The following findings of VCAT regarding Dr Chopra’s conduct to which the third respondent referred in its submissions are particularly relevant:
Chopra v Department of Education and Training (Review and Regulation) [2019] VCAT 174 (P Quigley J):
[36]Overall, my observations are that throughout the almost 1 hour and 56 minutes of the hearing conducted by the presiding member …, which led to the reconstitution application, [Dr Chopra] displayed unacceptable behaviour towards the Tribunal. He constantly raised his voice, sometimes to a yelling pitch, talked over the presiding member, refused to accept rulings and directions made by the Tribunal and consistently sought to revisit rulings and directions several times after the presiding member had made clear that a ruling or direction had been made and asked [Dr Chopra] to move on.
[37]At one point during the proceeding, the presiding member stood the matter down because [Dr Chopra]’s behaviour had become aggressive. The audiotape and transcripts make clear that [Dr Chopra] was yelling, gesticulating and pointing despite being asked not to do so on a number of occasions by the Tribunal.
[38]In my view, the behaviour of [Dr Chopra] was harassing and intimidating, and the presiding member conducted himself with considerable restraint. The restraint he expressed was commendable in the circumstances. In my view, [Dr Chopra]’s behaviour was anarchical and fell well below the standard which I expect to be conducted by any person, self-represented or otherwise, in the Tribunal.
Chopra v Department of Education and Training (Review and Regulation) [2019] VCAT 1941 (SM Smithers):
[55][Quigley J’s] description of Dr Chopra’s behaviour could be applied equally to the hearing before me. Once again, his behaviour was anarchical. And it fell well below the standard which would be expected from any person, self-represented or otherwise, in the Tribunal. Dr Chopra did at one point apologise for raising his voice, but then his offensive behaviour resumed again.
Chopra v Department of Education and Training (Review and Regulation) [2020] VCAT 748 (SSM Jenkins J):
[15]It has become increasingly apparent that [Dr Chopra] has a propensity to disrupt and prolong hearings whilst also demonstrating disrespect to both [the Department] and the presiding member.
Also … [Dr Chopra]’s written submissions and correspondence with the Tribunal has frequently been unnecessarily, voluminous and repetitive and contained abusive and scandalous content of a totally unacceptable nature…I will not list any further directions hearings where procedural matters and interim applications can be appropriately determined on the papers…
[28]… [R]egrettably, I have witnessed some of the same belligerent and time-wasting behaviour [observed by Quigley J, Hampel J and Richardson J in other proceedings during three Directions Hearings].
Chopra v Department of Education and Training (Review and Regulation) (No. 2) [2020] VCAT 1035 (SSM Jenkins J):
[79]… [Dr Chopra] has frequently behaved in a loud, belligerent and disruptive manner during hearings including toward witnesses…
Chopra v Department of Education and Training (Review and Regulation) [2022] VCAT 152 (P Quigley J):
[47]Judge Jenkins displayed courtesy and forbearance notwithstanding [Dr Chopra] displayed querulous and disruptive behaviour on multiple instances throughout the hearing.
Chopra v Victorian Institute of Teaching (Human Rights) [2024] VCAT 136 (DP Wilson):
[63]What I observed from both listening to the directions hearing and from his submissions made to me is that Dr Chopra has a tendency to be argumentative and highly suspicious of people’s motives and is quick to impute bad faith and improper motive when decisions are made or instructions are given with which he does not agree.
[159]…Part of Dr Chopra’s difficulty in representing himself is that he displays the tendency of… (a) being argumentative; (b) talking over people; and (c) refusing to accept an answer or assistance.
The judgment of McLeish JA in Chopra v Department of Education and Training[6] recounts a history of extensive delays occasioned by Dr Chopra’s repeated requests for adjournments; Dr Chopra repeatedly asserting that appearing in Court would be detrimental to his mental health and a failed application that the judge recuse himself for bias. In the subsequent costs judgment McLeish JA noted:
The applicant filed an ‘eleventh affidavit’ on 29 April 2021. Contrary to the direction that the submissions be limited to five pages, this document ran to some 37 pages. Also contrary to the directions that were given, most of the document was not about costs. Instead, among other things, in highly intemperate terms descending often to sarcasm, the applicant renewed an application, already dismissed, that I recuse myself from the case. The applicant again sought to have the case heard by a panel of three judges. The affidavit also sought impermissibly to repeat arguments already rejected as to the merits of the case, and to complain about the disposition of the application for leave to appeal and the fact that the matter had not been referred to the pro bono scheme to provide the applicant with a barrister. This material was overwhelmingly repetitive of arguments previously raised.[7]
[6][2021] VSCA 36.
[7]Chopra v Department of Education and Training (No 2) [2021] VSCA 112, 10.
Mr Myers, in his reply submissions, sought to address these findings in various ways, none of which were compelling. Least compelling of all was the submission:
If they think [Dr Chopra] is bad, wait they get a load of me! I may be thrown out for my frustrated misbehaviour that will follow my ignorance as night follows day.
It hardly needs to be said that it is not an argument in support of an unsuitable person to act as a McKenzie friend to threaten to behave worse.
The balance of the matters in reply relating to Dr Chopra’s conduct consist for the most part of various attempts to explain away the above findings or to assert that they are simply wrong. I have had regard to that material and it is not persuasive. For some reason which is not plain the reply submissions devote several paragraphs to a costs dispute Dr Chopra is having with the third respondent and then annex more than 90 pages of bills of costs. Those portions of the reply submissions which deal with Dr Chopra’s conduct have evidently been prepared with his assistance. They exhibit some of the same tendencies as those noted above; they are overly long, intemperate and, at least so far as the costs dispute is concerned, irrelevant to the issues before me.

In light of the materials before me, had I been satisfied that Mr Myers had demonstrated the exceptional circumstances which are required for the appointment of a McKenzie friend to make oral submissions, I would, in any event, not have granted leave for Dr Chopra to make submissions on Mr Myers’ behalf.
For completeness, I note that I have reached the above conclusion without any reliance on the second respondent’s submissions as to Dr Chopra’s motive in agreeing to act as a McKenzie friend for Mr Myers and I make no finding in that regard.
Mr Myers’ application for Dr Chopra to act as a McKenzie friend making oral submissions on his behalf is refused.

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SCHEDULE OF PARTIES

S ECI 2023 00709
BETWEEN:
JOHN MYERS	Applicant
- v -
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL	First Respondent
OFFICE OF THE VICTORIAN INFORMATION COMMISSIONER	Second Respondent
DEPARTMENT OF EDUCATION	Third Respondent

[2024] VSC 412

15 July 2024