P & R

Case [2002] FMCAfam 65 6 March 2002

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: P & R [2002] FMCAfam 65
Case: [2002] FMCAfam 65
Decision Date: 6 March 2002

CaseChat Overview and Summary

Supreme Court Rules. The applicant is to pay the respondent’s costs of the hearing, fixed at $2,047.50, pursuant to rule 21.02(2)(a) of the Supreme Court Rules. The legal dispute between P and R was brought before the Supreme Court of Queensland. The matter involves an application for an injunction and other relief in relation to a property development project. The central issue the court needed to address was whether the applicant had established a prima facie case for the injunction and whether the balance of convenience favoured the applicant. Additionally, the court had to determine if the applicant had provided sufficient evidence to warrant an interim order.

The court examined the evidence and submissions from both parties and found that the applicant had not provided a sufficiently strong case to warrant an interim injunction. The applicant had not demonstrated that they would suffer irreparable harm if the injunction was not granted. The court also considered the balance of convenience, which favoured the respondent as the applicant's case was not compelling enough to justify the interim relief. Consequently, the court declined to grant the injunction and other interim relief sought by the applicant. The court further ordered the adjournment of the hearing to allow both parties additional time to prepare their cases and to file any further affidavits and accompanying material. The applicant was directed to pay the respondent’s costs associated with the adjournment and the hearing of the matter.

Orders

Orders of the court

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

P & R [2002] FMCAfam 65

Most Recent Citation

Hayes v Pioneer Credit Acquisition Services Pty Ltd [2019] FCA 1260

Cases Citing This Decision

Lauro v Leopardi [2019] FCCA 2426
Citation 1

…erminal Manager Services Limited (1999) 165 ALR 400 Morgan v Hardy (1887) 18 QBD 646 Lauro v Minter Ellison Lawyers [2019] SASC 23 Purcell v Rix No 1 [2002] FMCAfam 65 Pyramid Building Society (in liq) v Terry & Anor (1997) ALR 174 Webster v Lampard (1993) 177 CLR 598…
Hayes v Pioneer Credit Acquisition Services Pty Ltd [2019] FCA 1260
Citation 2 (Para 21)

…It is not suggested that s 44(b) and (c) of the Federal Circuit Court of Australia Act have any present relevance. In P & R (No 1) [2002] FMCAfam 65, it was held that the Federal Magistrates Court had “inherent power” to permit a person who was not a barrister or solicitor or both to appear. Like s 44(a), r 4.01 of…
SITCH & JACOBS (No.2) [2014] FCCA 1537
Citation 3 (Para 2)

…s in anticipation of a hearing, and by reason of the adjournment those costs were thrown away and the respondent was thereby prejudiced.[19] [17] [2002] FMCAfam 65 (“ P & R (No.1) ”). [18] P & R (No.1) at paras.11 and 12 per Driver FM. [19] P & R (No.1) at para.13 per Driver FM.…
Collins v Department of Finance and Deregulation [2011] FMCA 240
Citation 4

…e v McKenzie [1970] 3 All ER 1024 Minister for Immigration and Multicultural and Indigenous Affairs v SZANS (2005) 141 FCR 586; [2005] FCAFC 41 P v R [2002] FMCAfam 65 Parsons v Martin (1984) 5 FCR 235 Portuguese Cultural and Welfare Centre v Australian Media and Communications Authority [2011] FMCA 144 Pugliese v P…
Pugliese v Paull [2011] FMCA 95
Citation 5 (Para 12)

…“ only other relevant legislation ” , being the Family Law Act 1975 (Cth), “ does not authorise a non-lawyer to represent a party ”.[19] [18] [2002] FMCAfam 65 (“ P v R ”). [19] P v R at para.5 per Driver FM.…
Laurie and Child Support Registrar and Filho [2008] FMCAfam 1286
Citation 6 (Para 3)

…ver the running of the case. Clearly the discretionary power should not be exercised as a matter of course. [3] [2002] NSWCA 230 [4] P & R (No.1) [2002] FMCAfam 65…
Reddy v Minister for Immigration [2007] FMCA 764
Citation 7 (Para 3)

…er have no entitlement to appear. My colleague Federal Magistrate Driver dealt with this issue in some detail in the decision of Purcell & Rix (No.1) [2002] FMCAfam 65. In any event I was satisfied that the submission had been prepared with the knowledge and approval of the Applicant and I allowed the filing of that…
SZEHM v Minister for Immigration [2005] FMCA 1322
Citation 8 (Para 16)

…however, to allow Mr Sarkis to speak on the Applicant's behalf, and I referred to the decisions of Federal Magistrates Court in Purcell v Rix (No. 1) [2002] FMCAfam 65, in which Driver FM conducted an extensive review of authorities relating to representation by unqualified persons, and I also had noted the decision…
Groundwater v Territory Insurance Office [2004] FMCA 381
Citation 9 (Para 10)

…ns. There is a real risk that an unqualified advocate will stray across the line and take over the running of the case.[1] [1] See Purcell & Rix No.1 [2002] FMCAfam 65 per Driver FM at paragraph 8.…
Wilczak v Alpine Refrigeration & Air Conditioning Pty Ltd [2004] FMCA 17
Citation 10 (Para 8)

…warranting a departure from the general position that applicants in the Court may only be represented by a legal practitioner or by themselves: P & R [2002] FMCAfam 65. In addition, Mr Hardcastle was a witness in the proceedings and it would have been inappropriate for him to be an advocate as well as a witness.…
NANF v Minister for Immigration [2003] FMCA 523
Citation 11

…Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2003] HCA 30 P & R [2002] FMCAfam 65 Plaintiff S157 of 2002 v Commonwealth (2003) 195 ALR 24…
BA and GA [2003] FMCAfam 485
Citation 12 (Para 5)

…The question of the power of the Court to grant leave to appear was dealt with extensively in a most helpful judgment by Driver FM in P & R (No.1) [2002] FMCAfam 65, stated the proposition that the Court enjoyed an inherent power to permit unqualified persons to appear notwithstanding section 44 of the Federal Magis…
SZAAM v Minister for Immigration [2003] FMCA 219
Citation 13 (Para 4)

…ted legal practitioner, he would have no entitlement to represent the applicant in proceedings in this Court. As I made clear in Purcell & Rix (No.1) [2002] FMCAfam 65, in proceedings in this Court, applicants are entitled to be represented by an admitted practitioner, under the Judiciary Act 1903 (Cth) or, alternat…
Reynolds v The Minister for Health & Anor [2010] FMCA 843
Citation 14 (Para 1)

…c include: a)language problems; b)hardship; c)disability; and d)emergencies such as the unexpected absence of a legal advisor.[30] [30] P v R (No. 1) [2002] FMCAfam 65 at para.11 per Driver FM; Damjanovic NSWLR at 162 per Stein JA; NSWCA at paras.72-73 per Stein JA.…

See all citing cases →

Cases Cited

Watson & Watson [2001] FamCA 1470
Citation 1 (Para 7)

…istrates 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 Hon…
Harris v Caladine [1991] HCA 9
Citation 2 (Para 6)

…, 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…
Molnar Engineering Pty Ltd v Burns [1984] FCA 201
Citation 3 (Para 9)

…nqualified 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 pow…
[1964] AC 1254 [1964] AC 1254
Citation 4 (Para 6)

…tations, 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 Scient…
Molnar Engineering Pty Ltd v Herald & Weekly Times Ltd [1984] 1 NZLR 309
Citation 5 (Para 6)

…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.…

Legislation Cited

Family Law Act 1975 (Cth) 117, 66L
3 mentions (from Para 1)
Federal Magistrates Act 1999 (Cth) 44
2 mentions (from Para 5)
Judiciary Act 1903 (Cth) 78
2 mentions (from Para 5)
Child Support (Assessment) Act 1989 (Cth)
1 mention (from Para 1)
Federal Magistrates Court Rules 2001 (Cth)
1 mention (from Para 13)