P & R
[2002] FMCAfam 65
•6 March 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| P & R (No.1) | [2002] FMCAfam 65 |
| PRACTICE AND PROCEDURE – representation of a party by an unqualified person – whether leave should be granted to permit that representation. COSTS – payment of costs thrown away by a party by reason of the adjournment of a hearing to permit the other party to obtain legal representation. |
Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth), ss.66L, 117
Federal Magistrates Act 1999 (Cth), s.44
Federal Magistrates Court Rules 2001
Judiciary Act 1903 (Cth), s.78
Abse v Smith [1986] 1 All ER 350
Connelly v Dpp [1964] AC 1254
Ex parte Chambers [1969] 2 NSWR 272
Harris v Caladine (1991) 172 CLR 84
Hubbard Association of Scientologists v Anderson [1972] VR 340
Molnar Engineering Pty Ltd v Burns (1984) 3 FCR 68
Northern Homes Ltd v Steel – Space Industries Ltd (1975) 57 DLR (3d) 309
R v Visiting Justice; ex parte Walker [1975] VR 883
Re G J Mannix Ltd [1984] 1 NZLR 309
Watson & Watson [2001] Fam CA 1470
| Applicant: | B E P |
| Respondent: | S A R |
| File No: | ZP4403 of 2001 |
| Delivered on: | 6 March 2002 |
| Delivered at: | Parramatta |
| Hearing Date: | 6 March 2002 |
| Judgment of: | Driver FM |
REPRESENTATION
| Applicant Grandmother appeared in person |
| Counsel for the Respondent: | Mr M Kearney |
ORDERS
IT IS DIRECTED:
(1)THAT the hearing of the matter be adjourned to 10.00am on Monday, 6 May 2002.
(2)THAT any further affidavits and any accompanying material on which either party seeks to rely be filed and served on or before 19 April 2002.
IT IS ORDERED:
(1)THAT the applicant is to pay the respondent’s costs thrown away by reason of the adjournment of today’s proceedings, fixed at $2047.50, pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001, to be paid within 35 days of today’s date.
(2)THAT any primary dispute resolution between the parties is to be completed by 3 May 2002, and the parties have leave to approach the primary dispute resolution co-ordinator of this Court in Melbourne for assistance should they wish to do so.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
ZP4403 of 2002
| B E P |
Applicant
And
| S A R |
Respondent
REASONS FOR JUDGMENT
This matter came before me today for final hearing of an application by Mrs B E P (“the applicant”) for payment of “adult” child maintenance pursuant to s.66L of the Family Law Act 1975 (Cth) (“the Family Law Act”) in relation to R A R (“the beneficiary”), born 31 January 1984. The beneficiary is currently aged 18. The respondent father, S A R (“the respondent”) was paying child support as assessed under the Child Support (Assessment) Act 1989 (Cth) but the obligation to make those payments ceased when the beneficiary turned 18. The applicant is the grandmother of the beneficiary and seeks orders for maintenance of the beneficiary while she attends university. The mother of the beneficiary is deceased.
When this matter first came before me on 29 January 2002 the applicant was represented by her son, Mr J M P, who had previously assisted the applicant in proceedings before the Child Support Agency. There was no appearance for the respondent on that occasion and I gave leave for Mr P to appear. I made certain interlocutory orders which are not presently material.
The matter next came before me on 7 February 2002 when the matter was listed for final hearing for one day. On that occasion Mr P again sought to appear for the applicant but that was opposed by Mr Kearney, who appeared for the respondent. I adjourned the hearing until
6 March 2002and indicated that I would rule at that time on the question of whether Mr P would be given leave to appear.
At the commencement of the hearing today the applicant orally applied for leave for Mr P to appear as her advocate. Mr P is not a lawyer and is therefore not entitled to appear without leave. The application was strenuously opposed by Mr Kearney.
It is necessary first to consider the terms of section 44 of the Federal Magistrates Act 1999 (Cth) (“the Federal Magistrates Act”). That section provides that:
A party to a proceeding before the Federal Magistrates Court is not entitled to be represented by another person unless:
(a)under the Judiciary Act 1903, the other person is entitled to practice as a barrister or solicitor, or both, in a federal court; or
(b)under the regulations, the other person is taken to be an authorised representative; or
(c)another law of the Commonwealth authorises the other person to represent the party.
There are no relevant regulations and the Family Law Act, being the only other relevant legislation, does not authorise a non-lawyer to represent a party.
The issue of the entitlement of unqualified persons to appear in the Family Court (which for all relevant purposes is in the same position as this Court) was the subject of a paper written by the then Solicitor-General in 1990. In that paper the Solicitor-General noted that s.78 of the Judiciary Act 1903 (Cth) (“the Judiciary Act”) confers rights of audience on the parties to a proceeding and appropriately qualified legal practitioners: R v Visiting Justice; ex parte Walker [1975] VR 883 at p 889; Ex parte Chambers [1969] 2 NSWR 272 at p 278. The Solicitor-General went on to state that, subject to statutory, and constitutional or other limitations, the Family Court has an inherent jurisdiction to govern its practice and procedure (Harris v Caladine (1991) 172 CLR 84; Connelly v DPP [1964] AC 1254 at p 1347) which enables the Court in appropriate circumstances to permit any person, not otherwise so entitled, to appear: Hubbard Association of Scientologists v Anderson [1972] VR 340 at p 342; Abse v Smith [1986] 1 All ER 350 at p 358; Re G J Mannix Ltd [1984] 1 NZLR 309 at p 314; Northern Homes Ltd v Steel – Space Industries Ltd (1975) 57 DLR (3d) 309 at 315.
In my opinion this Court is in the same position as the Family Court. This Court enjoys an inherent power to permit unqualified persons to appear notwithstanding s.44 of the Federal Magistrates Act. Lest there be any doubt, I stress that this is a different question from that dealt with by His Honour Lindenmayer J in Watson & Watson [2001] FamCA 1470. In that case Lindenmayer J was faced with an application for appointment of a next friend under the rules of court made by the Family Court. His Honour distinguished the role of a next friend from that of a “McKenzie friend” who is permitted to sit at the bar table and offer quiet advice and assistance to a party, while not being an advocate. It does not appear that any application was made in that case for an unqualified person to be given leave to appear as an advocate, otherwise than as a next friend. The rules of this Court deal with the appointment of litigation guardians at division 11.2 which are the same as next friends. There is, however, no suggestion in this case that the applicant requires a litigation guardian. She simply seeks the services of an unqualified advocate who cannot appear without leave.
The power to grant leave to an unqualified advocate is used sparingly. There are good reasons why that is so. First, the general restriction of the right of appearance to parties and qualified persons seeks to ensure that the court has the assistance of either parties who know their case or qualified legal practitioners who can make informed submissions to assist the court. In addition, as was pointed out by Mr Kearney, legal practitioners have ethical duties both to their clients and to the court, while unqualified persons are not in the same position. Further, a legal practitioner can be expected to understand the difference between acting on instructions and acting without instructions. There is a real risk that an unqualified advocate will stray across the line and take over the running of a case.
The power to grant leave to unqualified persons has been used in the Family Court from time to time to permit articled and law clerks to appear in straightforward and routine matters. It may also have been used occasionally to permit a party to be represented by a friend or relative but, as was noted by the Solicitor-General in his paper, the grant of rights of audience in courts to unqualified persons is ordinarily regarded as exceptional and for use when legal representation cannot be obtained: Molnar Engineering Pty Ltd v Burns (1984) 3 FCR 68 at p 73; Hubbard [1972] VR 340 at p 343; Mannix [1984] 1 NZLR 309 at p 311; Abse v Smith [1986] 1 All ER 350 at p 353. Clearly, the discretionary power should not be exercised as a matter of course. It probably cannot be. This Court, like the Family Court, is a court exercising federal judicial power under chapter III of the Constitution. The exercise of a general discretion to permit unqualified persons to appear in this Court would extend the discretion beyond the boundaries that arise from s.44 of the Federal Magistrates Act and would unreasonably intrude into judicial organisation. However, as was noted by the Solicitor-General, leave to appear in routine, straightforward matters is a lesser intrusion into judicial organisation than the delegation to non-judicial officers upheld by the High Court in Harris v Caladine. Similarly, the granting of leave in exceptional circumstances in more substantial matters is not, in my view, an unreasonable intrusion.
The question then is whether I should exercise my discretion to grant leave for the applicant to be represented by her son, Mr P. The applicant submitted that she feels she needs the assistance of her son because he had assisted her before the Child Support Agency and she doubts her ability to present her case effectively herself. Put simply, the applicant is lacking in confidence. The applicant is an elderly lady and she has apparently had some health problems but these have not prevented her from attending Court on the three occasions that this matter has been before me. The applicant told me that, while cost was a factor in her decision not to seek legal representation to this point, she considered that there was no need for legal representation because her son could adequately represent her.
Mr Kearney submitted that there was nothing unusual or exceptional in the circumstances presented by the applicant and that I would clearly fall into error if I gave leave for Mr P to appear. I agree the difficulty confronting the applicant is no more nor less than the difficulty confronting hundreds of self-represented litigants in courts around Australia every day. In an ideal world, all parties would be legally represented. Where, however, a party chooses not to obtain legal representation or cannot, because of lack of funds and unavailability of legal aid, the party must do the best that he or she can on his or her own. Nothing has been put to me that could constitute an exceptional or even an unusual circumstance warranting the grant of leave to Mr P. In the circumstances I refuse leave.
The applicant then applied for an adjournment so that she could obtain legal representation. This application was also vigorously opposed by Mr Kearney, on the basis that his client had come to court for a final hearing and would be prejudiced by an adjournment. Nevertheless, I consider that I should grant the application for an adjournment. The applicant came to court today expecting a legal argument on whether she could be represented by her son but, as she had been represented by her son to this point she had a reasonable expectation that leave would be granted. She had no conception of the technical legal issues involved. It is unfortunate that this is the second occasion on which the final hearing of this matter has been adjourned but I have concluded that the applicant would be unfairly prejudiced if she were compelled to present her own case today.
Mr Kearney next sought an order for costs. Having heard him and the applicant I am satisfied that I should order the applicant to pay the respondent’s costs thrown away by reason of the adjournment of today’s hearing. The respondent has incurred legal costs in anticipation of having a hearing today. He also incurred legal costs at the adjourned hearing on 7 February 2002. Both parties knew that the issue of the applicant’s representation would be resolved today. While the applicant did not fully appreciate the risk she faced the respondent was entitled to expect that the substantive application would be heard today. The respondent would clearly be prejudiced by having to bear costs thrown away by reason of today’s adjournment. I have considered the matters set out in s.117(2A) of the Family Law Act but I have concluded that there is nothing in those considerations to outweigh the issue of prejudice. The applicant specifically submitted that her financial circumstances should be taken into account. The applicant tendered a bank account passbook for an account she holds jointly with her husband. That establishes that the amount held by the applicant in that account has been declining over time and currently stands at just under $2,000. I accept that the applicant is not a wealthy woman (and the respondent is not a wealthy man) but I am satisfied that she could meet an award of costs limited to the daily hearing fee thrown away today. For the purposes of rule 21.15 of the Federal Magistrates Court Rules 2001 I certify that it was reasonable for the respondent to employ an advocate to appear on his behalf today.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 6 March 2002
11
4
0