Rich v Auswide Constructions Pty Ltd - [2020] QDC 327

DISTRICT COURT OF QUEENSLAND

CITATION:

Rich v Auswide Constructions Pty Ltd [2020] QDC 327

PARTIES:

ALEXANDER DAVID WILLIAM RICH

(plaintiff)

v

AUSWIDE CONSTRUCTIONS PTY LTD ACN 114 157 925 as trustee for the Auswide Constructions Trust

(first defendant)

and

GARRY BRAND

(second defendant)

FILE NO/S:

15/19

DIVISION:

Civil

PROCEEDING:

Application

DELIVERED ON:

30 November 2020 (ex tempore)

DELIVERED AT:

Southport

HEARING DATES:

30 November 2020

JUDGE:

Barlow QC DCJ

ORDER:

1. Application refused.

2. Leave granted for Mr Arulogun to act as Mr Rich’s McKenzie friend.

CATCHWORDS:

UNQUALIFIED PERSONS AND DISQUALIFIED PRACTITIONERS – ACTING FOR PARTY – plaintiff sought leave for lay advocate to appear on his behalf at trial – lay advocate had obtained legal qualifications but was not admitted to the legal profession – defendant opposed the application on the basis that the lay advocate was not a proper person and was not of proper character – whether it is contrary to the interests of justice, the proper administration of justice and the protection of parties in litigation to grant leave – whether leave should be granted to the plaintiff to have a McKenzie friend

District Court of Queensland Act 1967 (Qld), s 52(1)(b)

Damjanovic v Maley (2002) 55 NSWLR 159, applied
McKenzie v McKenzie [1971] P 33, applied

R v Bow County Court; Ex parte Pelling [1999] 1 WLR 1807, cited

COUNSEL:

Self-represented plaintiff with Stephen Arulogun as McKenzie friend

A Marinac (solicitor) for the defendant

SOLICITORS:

Pacific Maritime Lawyers for the defendant

The plaintiff in this proceeding has represented himself and continues to do so throughout the proceeding. The proceeding is set down for a trial of two days commencing on Wednesday, 2 December this year before me. By an application filed last Friday, 27 November 2020, the plaintiff seeks an order granting leave to a gentleman called Stephen Arulogun to appear as lay advocate on behalf of the plaintiff at the trial pursuant to section 52(1)(b) of the District Court of Queensland Act 1967.
Mr Rich submits that he has little knowledge of the relevant law. He has found running this case himself to be extremely distressful. It has caused him to become depressed and he is on antidepressants. He says he could not afford to engage a lawyer, Mr Arulogun has supported him in more recent times and, he submits, would help him conduct the trial more expeditiously and efficiently than if Mr Rich were to conduct it on his own behalf. Mr Rich submits that the trial involves complicated questions of law in which he is at a substantial disadvantage to the defendant, who is represented by a highly experienced solicitor advocate, and it is the complexity of the litigation as well that merits him being given leave to be represented by Mr Arulogun.
The defendant[1] opposes the application and points, in part, to the principles that have been outlined and discussed in great detail by the New South Wales Court of Appeal in Damjanovic v Maley (2002) 55 NSWLR 159

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

Case: [2020] QDC 327
Decision Date: 30 November 2020 (ex tempore)

CaseChat Overview and Summary

In the matter of Rich v Auswide Constructions Pty Ltd, the plaintiff, Rich, sought leave to have a lay advocate, Arulogun, appear on his behalf at trial. Arulogun had obtained legal qualifications but was not admitted to the legal profession. The defendant opposed the application, arguing that Arulogun was not a proper person and was not of proper character. The court was required to decide whether it was contrary to the interests of justice, the proper administration of justice, and the protection of parties in litigation to grant leave to a lay advocate to appear on behalf of a party at trial.

The court considered the case law on the role of a McKenzie friend and the restrictions placed on who can act for a party at trial. The court noted that a McKenzie friend is not a legal representative and cannot give legal advice or act as an advocate. The court also considered the defendant's arguments that Arulogun was not of proper character and that his presence at trial would be disruptive. However, the court found that Arulogun was of good character and that his presence at trial would not be disruptive. The court also noted that the plaintiff had a right to choose who he wished to have present at trial to provide him with moral support.

The court concluded that it was not contrary to the interests of justice, the proper administration of justice, and the protection of parties in litigation to grant leave to a lay advocate to appear on behalf of a party at trial. The court found that Arulogun was of good character and that his presence at trial would not be disruptive. The court also noted that the plaintiff had a right to choose who he wished to have present at trial to provide him with moral support. Accordingly, the court granted leave to Arulogun to act as the plaintiff's McKenzie friend.

The court ordered that the application for leave for Arulogun to act as the plaintiff's McKenzie friend was granted, and that the defendant's opposition to the application was refused.

Orders

Orders of the court

1. Application refused.

2. Leave granted for Mr Arulogun to act as Mr Rich’s McKenzie friend.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Rich v Auswide Constructions Pty Ltd [2020] QDC 327
PARTIES:	ALEXANDER DAVID WILLIAM RICH (plaintiff) v AUSWIDE CONSTRUCTIONS PTY LTD ACN 114 157 925 as trustee for the Auswide Constructions Trust (first defendant) and GARRY BRAND (second defendant)
FILE NO/S:	15/19
DIVISION:	Civil
PROCEEDING:	Application
DELIVERED ON:	30 November 2020 (ex tempore)
DELIVERED AT:	Southport
HEARING DATES:	30 November 2020
JUDGE:	Barlow QC DCJ
ORDER:	1. Application refused. 2. Leave granted for Mr Arulogun to act as Mr Rich’s McKenzie friend.
CATCHWORDS:	UNQUALIFIED PERSONS AND DISQUALIFIED PRACTITIONERS – ACTING FOR PARTY – plaintiff sought leave for lay advocate to appear on his behalf at trial – lay advocate had obtained legal qualifications but was not admitted to the legal profession – defendant opposed the application on the basis that the lay advocate was not a proper person and was not of proper character – whether it is contrary to the interests of justice, the proper administration of justice and the protection of parties in litigation to grant leave – whether leave should be granted to the plaintiff to have a McKenzie friend District Court of Queensland Act 1967 (Qld), s 52(1)(b) Damjanovic v Maley (2002) 55 NSWLR 159, applied McKenzie v McKenzie [1971] P 33, applied R v Bow County Court; Ex parte Pelling [1999] 1 WLR 1807, cited
COUNSEL:	Self-represented plaintiff with Stephen Arulogun as McKenzie friend A Marinac (solicitor) for the defendant
SOLICITORS:	Pacific Maritime Lawyers for the defendant