Rimac and Rimac (No 2)
[2020] FamCA 919
•2 November 2020
FAMILY COURT OF AUSTRALIA
| RIMAC & RIMAC (NO. 2) | [2020] FamCA 919 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Summary Dismissal – Adjournment – additional orders – Where the husband has made an Application for a summary dismissal of wife’s Application for Final Orders, an Application for all Orders made in the proceedings to be dismissed, an Application to enforce orders made by the Supreme Court of New South Wales, an Application to dismiss an Application for divorce, an Application for investigations to be initiated against the wife, an Application for caveats on real property, an Application for the wife’s solicitors to be removed from acting, an Application for orders for further disclosure and for the husband to be represented by his non-legally trained brother, and an Application for an adjournment of the final hearing set down in this matter – Where the wife opposes all Applications – Applications dismissed – Adjournment granted. FAMILY LAW – COSTS – Where the wife has made an Application for indemnity costs in respect of the husband’s Applications – Orders made for the husband to pay the wife’s costs on an indemnity basis in a fixed sum within 28 days. |
| Family Law Act 1975 (Cth) Pt VIII, Family Law Rules 2004 (Cth) r 12.13, Ch 13 |
| Batey-Elton & Elton (2010) 43 Fam LR 62 Karlsson and Karlsson [2020] FamCAFC 207 Price v Underwood (Divorce Appeal) (2009) 231 FLR 308 Stoian & Flemming (Costs) [2014] FamCA 944 |
| APPLICANT: | Mr Rimac |
| RESPONDENT: | Ms Rimac |
| FILE NUMBER: | SYC | 1540 | of | 2014 |
| DATE DELIVERED: | 2 November 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland DCJ |
| HEARING DATE: | 16 October 2020 |
REPRESENTATION
| COUNSEL FOR THE RESPONDENT: | Mr C Rimac, with leave to appear as a McKenzie friend to address the Court; The Respondent by telephone. |
| SOLICITOR FOR THE RESPONDENT: | Mr M Taylor of Hughes & Taylor |
Orders
Mr Rimac’s (“the husband”) Application in a Case filed 9 September 2020 and further Application in a Case provided to the Court on 1 October 2020 are dismissed.
Within 28 days, the husband is to pay the costs of Ms Rimac (“the wife”) in and in relation to the proceedings heard by the Court on 16 October 2020 in the sum of $4,500.
The hearing dates of 24, 25 and 26 November 2020 are vacated.
This matter is listed for a defended hearing for a period of five (5) days commencing 3 May 2021.
By close of business on 15 March 2021, the parties are each to make updated disclosure to the other parties pursuant to the Family Law Rules 2004 (Cth).
By close of business on 29 March 2021, each of the parties file and serve an updated financial statement.
By close of business on 29 March 2021, each of the parties shall file and serve one (1) consolidated affidavit which addresses the property matters under the following headings:
(a)Assets, liabilities, resources and superannuation as at the date of cohabitation.
(b)Financial contributions made the period of cohabitation.
(c)Non-financial contributions made during the period of cohabitation.
(d)Contributions made as a homemaker during the period of cohabitation.
(e)Assets, liabilities, resources and superannuation as at the date of separation.
(f)Contributions of any kind made post cohabitation.
(g)Additional evidence upon which the party relies in support of any adjustment pursuant s 75 (2) of the Family Law Act 1975 (Cth).
(h)Any other fact that is relevant to the Court’s exercise of discretion.
The practitioners for the parties are each to file and serve electronically to ... by no later than seven (7) days prior to the hearing, setting out the following:
(a)a concise set of Orders to be sought if different from those already filed;
(b)a list of the applications and affidavits to be read out and if not the whole affidavit, the relevant paragraphs relied upon;
(c)a joint chronology;
(d)an updated balance sheet; and
(e)a bullet-point summary of argument in relation to the issues in dispute.
In the event that any party becomes aware of any matter that would prevent the proceedings commencing on the first date allocated or continuing to conclusion on the last date allocated, that party is to forthwith restore the proceedings to the list on 48 hours’ notice to the Court and to each other party.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rimac & Rimac has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 1540 of 2014
| Mr Rimac |
Applicant
And
| Ms Rimac |
Respondent
REASONS FOR JUDGMENT
Introduction
This decision concerns an Application for various orders filed by Mr Rimac (“the husband”) including, most significantly, an order that the Application for Final Orders in respect of property distribution filed by Ms Rimac (“the wife”) on 29 May 2015 be summarily dismissed. The wife’s Application for final property orders is currently listed for four (4) days of final hearing commencing on 24 November 2020.
For reasons which I set out below, I have found that the husband’s Application to be wholly without merit. I have, however, acceded to an Application to adjourn the currently allocated November hearing dates primarily as a result of the delay, which has already occurred, in the husband obtaining legal advice and the unlikelihood of the husband obtaining legal assistance prior to that hearing. The husband’s participation in those proceedings without such legal advice would result in those proceedings being conducted without an appropriate logical framework that addresses the statutory criteria that the Court is required to consider pursuant to Pt VIII of the Family Law Act 1975 (Cth) (“the Act”). I am further concerned that the husband’s participation without appropriate legal representation would result in those proceedings continuing for an unacceptable length of time which would have the real potential of adversely impacting upon other litigants before the Court.
While recognising the adverse impact that an adjournment will have upon the wife, who has been waiting for a period in excess of five (5) years for this matter to be heard, I have determined that the adjournment is necessary to provide the husband with the time he has sought to properly prepare his case. That is, I have adjourned the proceedings for a period of six (6) months from 21 August 2020, being the period of time that the husband’s general practitioner certified was a period during which the husband would be unable to properly conduct legal proceedings.
This decision is made in circumstances where the only realistic alternative to the husband obtaining appropriate legal advice would be for the Court to consider the appointment of an independent case guardian to represent the interests of the husband. That course of action would itself result in several months of delay and was a course of action strongly opposed by the husband who contends that he will be in a position to properly conduct his case once he recovers from an epileptic episode which occurred in early July 2020.
Background
As I noted in my decision dated 18 August 2020,[1] the parties were married for a period of 11 years and have been litigating this matter for five (5) years.
[1] [2020] FamCA 675
The hearing was initially set down to proceed on 12 August 2020 and 13 August 2020 on an undefended basis as ordered on 9 April 2020. Those Orders were made for the case to proceed on an undefended basis on that day, pursuant to r 12.13 of the Family Law Rules 2004 (Cth) (“the Rules”), as a result of the husband not appearing at that Court event and as a consequence of the husband also not appearing at an earlier Callover on 2 March 2020. This was despite email notifications being sent to the husband to an email address which he identifies as one that he currently uses although, he attests, that he rarely accesses.
Early in the afternoon, on 11 August 2020, the husband sent, directly to my Chambers an email advising the Court that he had been unable to undertake necessary preparations for the hearing and would not be able to appear at the hearing as a result of health issues, including the fact that he had been admitted to the K Hospital in the period between 2 July 2020 and 5 July 2020 after suffering an epileptic seizure.
The husband did not attend the online hearing of the matter on that day but was, instead, represented by his brother, Mr C Rimac, who was given leave to appear for the purpose of making the adjournment Application on behalf of his brother. He was assisted by a Country N interpreter.
Despite concern regarding the absence of adequate medical evidence regarding the nature of the husband’s condition that had resulted in him being admitted to the K Hospital on 2 July 2020, in order to ensure procedural fairness to the husband, on 12 August 2020, I made the following Orders:
ORDERS MADE ON 12 AUGUST 2020:
1.These proceedings are adjourned for further hearing over three (3) days commencing on 24 November 2020 at 10.00am, with the fourth day, being 27 November 2020, also reserved if required.
2.The Respondent husband pay the costs of the Applicant wife, of and incidental to costs thrown away as a result of the adjournment Application, in the sum of $4,400, including GST, within 28 days of the date of these Orders.
3.Within 28 days of the date of these Orders, the Respondent husband file and serve an Affidavit explaining the reasons for his non-attendance at the hearing listed today and tomorrow, attaching a medical report from either or both Dr F or Dr G explaining:
a.The reason for his attendance at K Hospital on 2 July 2020;
b.The treatment provided by K Hospital and the treatment that has been provided subsequently;
c.The prognosis of the Respondent husband and, in particular, whether it is the case, in the opinion of those medical officers, that he was not capable of adequately conducting or giving adequate instructions for the conduct of the case today, 12 August 2020 and 13 August 2020; and
d.The prognosis of the medical officer(s) in respect to the future ability of the Respondent husband to conduct litigation in the Family Court of Australia or give adequate instructions for the conduct of his case in this Court in the future, including the hearing dates that have been set for three (3) days commencing 24 November 2020.
4.In the event of the Respondent husband seeking orders for the case listed on 24 November 2020 to proceed on a defended basis, he must, within 28 days of the date of these Orders, file an appropriate Application in a Case seeking to set aside the Orders made by this Court on 9 April 2020, together with a supporting Affidavit setting out the reasons why he contends that such an order should be made.
5.Within seven (7) days of the date of these Orders, the Respondent husband file and serve an updated Notice of Address for Service setting out any email or contact address which may be used to contact him.
6.In the event of the Respondent husband failing to file and serve an updated Notice of Address for Service, all further Notices served upon him by the solicitor for the Applicant wife or the Court shall be served upon the address details, including the email address, provided in his existing Notice of Address for Service filed on 5 November 2018.
7.This matter is listed for further directions at 9.30am on 24 September 2020 by video hearing via Microsoft Teams.
8.Judgment is reserved.
THE COURT NOTES THAT:
A.At the directions hearing on 24 September 2020, the parties are advised that orders made by the Court may include the following possible orders:
I.Confirming that the matters will proceed on an undefended basis for three days commencing 24 November 2020;
II.In the event that the Respondent husband files an Application to set aside the Orders made on 9 April 2020, orders for a timetable for the parties to file additional Affidavit material and to comply with their obligations of disclosure; and
At the directions hearing on 24 September 2020, the husband again attempted to be represented through his brother in respect to an Application in a Case which the husband had filed on 9 September 2020 seeking various orders and which included an Application for the proceedings to be summarily dismissed. Due to concerns regarding litigants before the Court being exposed to the current COVID-19 virus that directions hearing was to proceed by way of electronic means. Shortly after the proceedings commenced, on 24 September 2020, it became apparent that it was simply impossible to comprehend the nature of the case that the husband was attempting to make through his brother including attempting to identify the documentation that the husband was seeking to rely upon in support of his Application. Accordingly, at the directions hearing on 24 September 2020, I made the following Orders:
THE COURT ORDERS THAT:
1.The husbands Application in a Case dated 9 September 2020 for summary dismissal is adjourned for hearing to 16 October 2020 at 11am for a face to face hearing.
2.THE COURT NOTES that the Application in a Case includes:
a.An Application for summary dismissal of the entire proceedings;
b.In the event that Application is unsuccessful, an Application to set aside orders made on 9 April 2020 for the matter to proceed by way of an undefended hearing; and
c.By way of notification in an Affidavit filed by Mr Rimac on 9 September 2020, an Application for an adjournment of the hearing listed for four (4) days commencing 24 November 2020.
3.Mr Rimac, unless he is legally represented on 16 October 2020, is required to appear in person.
4.The costs of today’s proceedings are reserved.
THE COURT FURTHER NOTES THAT:
A.Mr Rimac intends to proceed with his Application in a Case based on:
a.His Affidavit sworn on 9 September 2020 which attaches to it Appendix A, B, C, and D and a supplementary Affidavit also sown on 9 September 2020 which is 14 paragraphs in length; and
b.An Affidavit dated 21 September 2020.
B.THE COURT NOTES that particularly in respect to the husbands Application for summary dismissal that he is potentially exposed to an order for costs and the Court strongly recommends that he obtains legal advice before proceeding with that Application.
C.In circumstances where no application has been made to appoint a case guardian and in circumstances where the interests of the husband have been represented by his brother, Mr C Rimac, and in circumstances where the Court is not satisfied that Mr C Rimac is competent to properly represent the interests of his brother, the Court will decline any further Application by Mr C Rimac to represent the interests of his brother.
The husband did not physically attend Court on 16 October 2020 but again sought to be represented by his brother. I permitted that representation to occur for the limited purpose of submissions being made on that day in circumstances where, if such leave had not been granted, the husband would have been without any representation. This would have resulted in a further adjournment and the wife incurring further unnecessary legal fees.
Applications
By Application in a Case filed on 9 September 2020, the husband sought the following orders, as expressed in the first person according to that Application:
I Mr Rimac Disability and Brain Injury am seeking to set aside the Orders made by this Court on 09.04.2020 together with my Affidavit these Orders were brought against me without my knowing at a time when my health is bed [sic].
I want this Court to dismiss all Order it has made against me since 2015.
Dismiss Application filed 29.05.2015 by [the wife] and Hughes and Taylor [the wife’s solicitors] For this Court to inforce Orders on [the wife] and Hughes and Taylor to fulfill Orders of Supreme Court 23.12.2014
For this Court to dismiss Application filed for Divorce by [the wife] and Hughes and Taylor as it was done without my knowing without my disputing documents.
In an unsealed Application in a Case provided to the Court on 1 October 2020, the husband seeks the following orders, again as expressed in the first person:
1.I am seeking an Order for an Ivestigation on Ms Rimac [the wife] (Ms L) for the Origin of her Estate since 1999 until today That Investigation should be done with the help of ATO, Ombudsman office and the Police. I seek for a Caveat on all Estate in Ms Rimac [the wife’s] name as well as D Street, Suburb B where I am rightfully 50% owner, that caveat should stayin place until the Investigation is completed. [sic]
2.I seek an Order for Ms Rimac to release all document, Bank statements, Diary books, other bellongings and all Loan Applications for Propertyes in her name and joint names. [sic]
3.I seek an Order for Hughes & Taylor [the wife’s solicitor] to release all documents they hold for the period while acting for me and Ms Rimac, including all documents and comunications from dealing with O.P.C. now N.S.W.T.G in my name and in the name of Ms Rimac.
4.I seek an Order for for [sic] Hughes & Taylor to stop acting immediately on behalf of Ms Rimac for the reasons of Conflict of Interest as they acted for me and Ms Rimac in the past for years and were involved grearly [sic] in all my affairs.
5.I seek an Order for this Court to allow me Mr Rimac a person with Disability & Brain Injury the right to be represented- assisted with whom I choose by my own free will.
Evidence
The husband relies upon the following documents:
a)Affidavit of the husband filed and sealed 9 September 2020 including annexed documents and Application in a case filed 9 September 2020 attaching a further Affidavit of the husband (marked ‘Exhibit A’ in the proceedings);
b)Affidavit of the husband filed 21 September 2020 and sealed 24 September 2020 including annexed documents (marked ‘Exhibit B’ in the proceedings); and
c)Financial statement filed 24 September 2020 and attaching documents.
The wife relies upon the following documents:
a)Affidavit of the wife filed in the substantive proceedings dated 21 July 2020;
b)Financial statement of the wife filed 20 July 2020;
c)Affidavit of Ms Lyn Marie Hughes filed 15 October 2020;
d)Affidavit of Mr Michael Taylor filed 11 August 220; and
e)Letter to the husband from the wife’s legal representatives dated 24 September 2020 (marked ‘Exhibit C’ in the proceedings).
Consideration
Representation
It is convenient to initially consider proposed order 5 of the husband’s unsealed Application provided to the Court on 1 October 2020. During the course of the proceedings, it was made clear that the purpose and intent of that proposed order was to enable the husband to continue to be represented in the substantive hearing by his brother, Mr C Rimac. As noted, Mr C Rimac appeared on behalf of the husband on 16 October 2020. Mr C Rimac is not legally qualified. The circumstances in which a party may be given leave to be represented by another, who is not legally qualified, was set out in Batey-Elton & Elton (2010) 43 Fam LR 62. In that decision, the Full Court (May, Boland and Strickland JJ) stated at [19]-[24]:
[19] We propose only briefly to canvass the issue of Mr B’s right of audience before us. That issue has been the subject of determination by at least two separately constituted Full Courts of this Court, and on each occasion the application for Mr B to appear as advocate for the wife has been refused.
[20] We commence our discussion of the wife’s application that Mr B be permitted to appear on her behalf by setting out s 55A and s 55B of the Judiciary Act 1903 (Cth) which provide as follows:
SECT 55ARight of barristers and solicitors admitted in federal courts to practise in those courts
A person who has been admitted to practise as a barrister or solicitor, or as both, under rules made in pursuance of paragraph (ga) of section 86 of this Act is, subject to those rules, entitled to practise in any federal court as a barrister or solicitor, or as both, as the case may be.
SECT 55B Right to practise as barrister or solicitor in federal courts and courts exercising federal jurisdiction
(1) Subject to this section, a person who:
(a) is for the time being entitled to practise as a barrister or solicitor, or as both, in the Supreme Court of a State; or
(b)is for the time being entitled, under a law (including this Act) in force in a Territory, to practise as a barrister or solicitor, or as both, in the Supreme Court of that Territory;
has the like entitlement to practise in any federal court.
(2) A person is not entitled to practise in a federal court as a solicitor by reason of paragraph (b) of the last preceding subsection unless:
(a)he or she has been admitted to practise as a solicitor or legal practitioner by the Supreme Court of the Territory; or
(b)he or she practises as a solicitor in the Territory and his or her sole or principal place of business as a solicitor is in the Territory.
(3) A person is not entitled to practise as a barrister or solicitor in a federal court by reason of subsection (1) unless his or her name appears in the Register of Practitioners kept in accordance with the next succeeding section as a person entitled to practise in that capacity.
(4) A person who is, under subsection (1), entitled to practise as a barrister or solicitor, or both, in any federal court has a right of audience:
(a)in any court of a State in relation to the exercise by the court of federal jurisdiction; and
(b)in any court of an internal Territory in relation to the exercise by the court of federal type jurisdiction.
(5) The Chief Justice of the Supreme Court of a State or an internal Territory may direct the Registrar or other proper officer of that Supreme Court to keep a Register of Practitioners for the purposes of subsection (4) and, where such a Register is kept in a State or Territory, a person is not entitled, in a court of that State or Territory, to the right of audience referred to in subsection (4) unless he or she is registered in that Register.
(6) Where a Register is kept in a State or Territory in accordance with subsection (5), a person who satisfies the Registrar or other officer keeping the Register that he or she is a person referred to in subsection (4) is entitled to be registered in that Register.
(7) Where it is proved to the satisfaction of the Supreme Court of a State or Territory constituted by 2 or more Judges that a person who is registered in the Register kept in that State or Territory in accordance with subsection (5) has been guilty of conduct that justifies it in so doing, the Supreme Court may order that person's registration be cancelled or be suspended for a specified period, but the Supreme Court may, at any time, order that the registration of the person be restored or that the suspension be terminated.
(8) The Registrar or other proper officer of the Supreme Court shall make such alterations and notations in a Register kept by him or her as are required by reason of orders of the Supreme Court under subsection (7).
(9) Notwithstanding subsection (6), where the registration of a person has been cancelled in accordance with subsection (7) and has not been restored, or is for the time being suspended, that person is not entitled again to be registered in the Register except pursuant to an order under subsection (7).
(10) In this section:
“federal-type jurisdiction, in relation to a court of an internal Territory, means jurisdiction conferred on the court by or under a law of the Commonwealth, but does not include jurisdiction conferred on the court under an Act providing for the acceptance, administration or government of that Territory.”
[21] The role of, and limitations placed on, a person acting as a McKenzie Friend are clearly explained by Lindenmayer J in Watson v Watson (2001) 28 Fam LR 481 ; 166 FLR 299 ; [2001] FamCA 1470. His Honour explored the history of the role emanating from the UK decision of McKenzie v McKenzie [1971] P33 ; [1970] 3 All ER 1034 at [18] of his reasons as follows:
[18] The first point which I think it important to make is that the application here is for the appointment of a “next friend”, not for the leave of the Court to employ the services of an assistant of the kind which has become known, throughout the Common Law world, as a “McKenzie friend”, following the decision of the English Court of Appeal in McKenzie v McKenzie [1970] 3 All ER 1034 ; [1971] P 33. That decision was to the effect that a litigant who appears before a Court in person is ordinarily entitled, if he or she so wishes, to have the assistance, in the Court, of a friend or assistant who may sit beside the litigant at the bar table for the purpose of taking notes, handling or cataloguing documents or exhibits, making quiet suggestions to the litigant as to how best to conduct the case, and generally being of assistance to the litigant in presenting his or her case to the Court, provided that that person does not disrupt the proper conduct of the proceedings. However, an important limitation upon the role and functions of a “McKenzie friend” is that he or she may not (except, perhaps, in the most exceptional cases, and with the express leave of the Court) act as an advocate for the litigant in the proceedings. That limitation has been recognized at least since a statement was made to that effect by Lord Tenterden CJ in Collier v Hicks (1831) 2 B & Ad 663 at 669; 109 ER 1290 at 1292, and has recently been reaffirmed by the Full Court of this Court (Kay J, with whom Holden and Mullane JJ agreed) in KT v KJ and TH (2000) 26 Fam LR 289 ; (2000) FLC 93-032 ; [2000] FamCA 831 at [11]. .
[22] The cases dealing with the issue of a non-practitioner appearing on behalf of a party in other superior courts are comprehensively reviewed by Stein JA (with whom Mason P and Sheller JA agreed) in Damjanovic v Maley (2002) 55 NSWLR 149; (2002) 195 ALR 256 ; [2002] NSWCA 230 and the applicable principles are summarised at [69]-[86] of his Honour’s reasons. We adopt the principles espoused therein which we now set out:
Principles from the cases
[69] A number of themes or principles run through the cases which are relevant to the exercise of the discretion to grant or refuse leave to an unqualified person to appear on behalf of an unrepresented litigant. They may be briefly summarised as follows:
(a) The complexity of the case
[70] Whether the case is one of complexity or minor or straightforward has often been seen as a discretionary factor: see for example, Scotts Head, per Mahoney A-P (at 4); Re G J Mannix (at 311, 314 and 316); Bay Marine, per Samuels JA (at 110–11); Hubbard (at 343); Abse (at 549); and Miles CJ (at 3) in Commonwealth Bank v Individual Homes.
[71] In the instant case Judge Dent referred to the case as a complex one having regard to the pleadings. This was a relevant factor well open to be concluded by the judge.
(b) Genuine difficulties of the unrepresented party
[72] These include matters such as unexpected language difficulties and emergencies. An example of the latter was the absence of legal aid in a criminal appeal (Schagen (at 411-412)). Also, in that case, the appellant was deaf and virtually incomprehensible to the court reporters. The court permitted two law students to address the court: see also Re G J Mannix (at 314, 316, 317); Scotts Head (at 4); Abse (at 549); Galladin (at 147–8); and Stergiou (at 247).
[73] The case before the court does not fall into an emergency situation nor one where the appellant experienced unexpected language difficulties in conducting his own case. Mr Damjanovic was probably always going to need an interpreter. If he gave evidence, as he would need to in order to establish his case, Ms Vukic could not interpret for him. Doing so would obviously conflict with her position as his advocate: see, for example, Pacific Air Freighters (Qld) Pty Ltd v Toller (2000) 171 ALR 519 ; [2000] FCA 343 at [6]-[10]. That the appellant had previously been dissatisfied with interpreting services is beside the point. To be able to present his own case, the appellant would need an accredited interpreter of the Country N language. That the appellant has poor command of the English language is no reason to grant Ms Vukic leave to appear as his advocate.
(c) The unavailability of disciplinary measures and a duty to the court by lay advocates
[74] Almost every case mentioned these matters as protection for a client when a qualified lawyer represented a party but were protections which were not available where an unqualified lay advocate appears: see Re G J Mannix (at 311, 316); Scotts Head (at 3); Hubbard (at 343); Abse (at 546, 555); Bay Marine (at 110–11); R v Smith (at 614); Tritonia (at 587); and Paragon (at 2371) referring to Woolf MR in D v S. Abse also emphasised the duty of a legal practitioner of absolute probity.
[75] In appropriate cases a legal practitioner may be ordered to pay costs. The position is far from clear in relation to a non-party lay advocate. There may be extreme circumstances where the conduct of a lay advocate could attract an adverse costs order.
[76] In my opinion, the overall duty of a barrister or solicitor to the court is an important consideration. It is a duty of candour and a practitioner must not knowingly mislead the court. The court is entitled to place reliance on that duty and expect it to be met. The disciplinary codes of the legal profession back up the overriding duty of a practitioner to the court. (See D A Ipp, “Lawyers’ Duties to the Court” (1998) 114 Law Quarterly Review 63).
[77] Training, qualifications and experience are also important. This is not to say that there are not incompetent lawyers, including some who seek to practise advocacy. For the most part, the market and the disciplinary codes account for them. But with unqualified and uninsured lay advocates, the court loses the benefit of the overriding duty and clients are at a distinct disadvantage. Apart from endeavouring to ensure that a lay person granted leave to appear obeys the rules, there is little a court can do except, in an appropriate case, withdraw the leave to appear.
[78] All of the above is not to say that Ms Vukic has not obeyed the rules of court when she has been granted leave to appear. In the court’s experience she has been unfailingly courteous and polite. However, the absence of a disciplinary code and duty to the court underlines the inappropriateness of permitting unqualified persons to appear apart from an exceptional case.
(d) Protection of the client and the opponent
[79] Lay advocates are unqualified, unaccredited and uninsured. This places a client at considerable risk. The point was made in Scotts Head that an unqualified advocate may cause loss to a party (at 3). A lay advocate does not owe the same duty to his client as does a lawyer. See also Abse (at 546) highlighting the duty owed by a lawyer to assist the court in ensuring the end of the proper administration of justice. On the same issue see also Paragon and D v S.
[80] One should also not lose sight of a lawyer’s duty to his/her opponent, Scotts Head (at 3). None of these protections for the system of justice exist with an unqualified lay advocate. In this case, Mr Damjanovic has none of the protections although he can afford a lawyer. As I have said, it is difficult to accept that he cannot find a competent and trustworthy Country N or non-Country N lawyer.
(e) Lay advocates in inferior courts and tribunals
[81] There are indications in some of the cases that Local Courts, given their jurisdiction and large numbers of unrepresented litigants, may be more likely to grant leave to unqualified persons. This is, one assumes, in straightforward uncomplicated matters where the party is under some disability in presenting his/her own case. This may also be the case with some specialist jurisdictions and tribunals.
[82] The authorities however suggest that higher courts should be very chary at giving leave. See Re G J Mannix (at 314); Hubbard (at 343), Bay Marine (at 111); Scotts Head (at 3–4); and D v S (see Paragon (at 2369)).
(f) The interests of justice
[83] What runs through all of the authorities as the guiding principle in the exercise of the discretion is the public interest in the attainment of the ends of justice. The public has an interest in the effective, efficient and expeditious disposal of litigation in the courts. As a general rule this can best be achieved by parties employing qualified lawyers.
[84] The reason for this was explained by Gleeson CJ in a speech given to the Supreme Court of Japan in January 2000 (Current Issues for the Australian Judiciary). The Chief Justice said that: “The adversary system assumes, in the interests of both justice and efficiency, that cases will be presented to courts by skilled professionals. To the extent to which that assumption breaks down, so does the system”.
[85] Representation by legal practitioners will not always be possible because of the high cost of legal services and restrictions on legal aid. There is therefore room for the discretion to be exercised in an appropriate case, as indeed the authorities make plain and in circumstances where the achievement of justice cannot be otherwise secured.
[86] Nonetheless, the foundation for the general principle and limited room for the discretion to be exercised is, as Mahoney AP said in Scotts Head, the proper administration of justice and the protection of the parties. It is not a rule devised to protect a lawyer's privilege or monopoly. Access to justice is a difficult issue in an ever more complex society with constraints on public resources. It will therefore be understandable and appropriate that judges will from time to time be prepared to grant leave to an unqualified person. Advocacy before courts is however a difficult skill to acquire without formal qualifications, training and practice. Ultimately perhaps governments may take up some of the recommendations of the Access to Justice Report referred to earlier.
We think in this case the matters espoused in paragraphs [74]-[77] are of particular importance, as are those set out in the following two paragraphs [79] and [80]. We would also emphasise the importance of the matters referred to in paragraphs [83]-[86]. (See also Melaleuca of Australia & New Zealand Pty Ltd v Duck [2005] FCA 1481 per Bennett J where her Honour discussed both the right of audience before a Federal Court and the role of a McKenzie Friend).
[23] While we note it was proposed that Mr B would offer an undertaking to this Court to behave in a professional manner, we perceive inherent difficulties if he breached this undertaking to the Court. Of greater relevance however are the principles espoused in the cases to which we have referred, and in particular the emphasis on the duties imposed on members of the legal profession in their capacity as officers of the Court, the fact such persons are required to conform with professional obligations governing their admission and right to practice, the need for such persons to be insured, and that they may be subject of disciplinary procedures under the relevant legislation.
[24] Nothing was advanced to us by the wife which demonstrated any different fact or circumstance from matters advanced to previous Full Courts by the wife that we should take into consideration. It was for this reason, and adopting the reasons of the earlier Full Courts, particularly the reasons of Warnick J in the decision reported as Batey-Elton & Elton (No 2) [2008] FamCAFC 202 (Batey-Elton (No 2)), that we permitted Mr B to act as a McKenzie Friend but denied him a right of audience before us. We would add that in attempting to understand the reason the wife asked that Mr B be permitted to appear as an advocate we canvassed with her the reason she thought this was necessary. The wife did not establish any reasons different from those of most litigants in person. In particular we raised with her whether it was necessary for a Case Guardian to be appointed on her behalf. She strongly resisted such a suggestion.
In this case, the husband similarly has strong opposition to being represented by a case guardian. That fact is not, however, justification for him to be represented by a non-legally qualified person. This is in circumstances where the evidence filed in these proceedings establishes that the husband has an amount of approximately $1.4million in a bank account and can easily afford to pay for his own legal representation.
Moreover, the conduct of the husband’s brother, Mr C Rimac, in these proceedings has satisfied me that he is an entirely unsuitable person to represent the interests of his brother. In these proceedings, he has conducted himself in a most unprofessional manner. The husband’s brother’s submissions were, with respect, rambling and illogical. He made no attempt to identify relevant legislative criteria, let alone attempt to present an argument that addressed any relevant legislative criteria that underpins the Court exercising jurisdiction. Despite being requested not to do so, he continued to purport to provide evidence from the bar table much of which was inflammatory and included making imputations against the wife which can only be described as scandalous. At one point in the proceedings, Mr C Rimac bent down to retrieve, from a plastic bag, a pair of old sandals before turning around to shout at the wife, who was sitting in the body of the Court, alleging that they were evidence that she had failed to properly care for the husband when they lived together as a couple.
This occurred despite the significant indulgence given to Mr C Rimac by the solicitor for the wife who consented to Mr C Rimac appearing on 16 October 2020.
Having regard to those circumstances, Mr C Rimac will not be permitted to appear as an advocate in any proceedings before me again.
Proposed order 5 of the orders sought by husband is otherwise otiose and will be dismissed. This is because the husband has every right to be represented by whomsoever he chooses, providing that person is an appropriately qualified legal practitioner. Indeed, as was made abundantly clear to the husband, who was listening in to the proceedings by telephone on 16 October 2020, the Court strongly encourages him to obtain legal representation. He has the financial means to do so and it is in his interest to engage a qualified legal practitioner as expeditiously as possible, indeed he should have engaged legal representation prior to 16 October 2020
Summary dismissal Application
In circumstances where it would dispose of the proceedings, I will next consider the husband’s Application for the wife’s primary Application for Final Orders to be summarily dismissed. As noted, the husband’s Application, in that respect, is expressed as follows:
3. Dismiss Application filed 29.05.2015 by [the wife] and Hughes and Taylor [the wife’s solicitor]
In Karlsson & Karlsson [2020] FamCAFC 207 at [38]-[41], Ainslie Wallace J helpfully summarised the principles relating to the summary dismissal of an application, as follows:
[38] The power to summarily dismiss an action must be rarely and sparingly used (see Pelerman v Pelerman (2000) FLC 93-037). The Full Court discussed the power of the court to summarily dismiss proceedings in Bigg v Suzi (1998) FLC 92-799 at 84,974–84,975 and adopted the articulation of the principles of Kirby J in Lindon v The Commonwealth (No 2) (1996) 70 ALJR 541 (“Lindon”) at 544-545, which may conveniently be summarised thus:
• it is a serious matter to deprive a party of access to the courts and the power to do so should be rarely and sparingly used;
• the party seeking summary dismissal must show that it is clear on the face of the other party’s documents that the other party lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious;
• that a case appears weak and unlikely to succeed is of itself not sufficient to satisfy summary dismissal;
• if there is a serious legal question to be tried, then it should ordinarily be determined at a trial of the issues;
• where, notwithstanding a defect in the pleadings, if it appears that a party may have a reasonable cause of action which has not been put in proper form, a court will ordinarily allow that party to reframe the pleadings; and
• the “guiding principle” is doing what is “just”. In Lindon, Kirby J said at [545]:
If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the Court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.
[39] Her Honour proceeded to consider the question of summary dismissal pursuant to s 45A of the Act and noted that the court may order summary dismissal where it is satisfied that the claim has “no reasonable likelihood of success”.
[40] Indeed, recent authority has preferred to apply the test of “no reasonable likelihood of success” rather than “doomed to fail” (see Spencer v Commonwealth of Australia (2010) 241 CLR 118 where the High Court discussed the “bound to fail” test and Bretton & Bondai [2013] FamCAFC 168 at [59] –[60] ).
[41] That is not to say that the power should not, as Lindon said, be exercised sparingly and rarely, but that it will be exercised where it is clear that there is no real question to be tried (see Lysaght Building Solutions Pty Ltd(t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) 42 VR 27 at [35] ).
In circumstances where this matter had been listed for an undefended hearing, the wife has filed an Affidavit and a Financial Statement relevant to her Application for Final Orders, those documents make it clear that the wife has an arguable claim for relief pursuant to s 79 of the Act and the husband’s Application for summary dismissal of that claim is without merit and will itself be dismissed.
Application to dismiss all Orders made in the proceedings to date
Other than in respect to the Orders made on 9 April 2020 setting this matter down for an undefended hearing, this Application is misconceived.
Interim Orders are made pending further orders of the Court. Insofar as the husband has found difficulty with Orders previously made by the Court, his remedy is to file an appeal against those Orders which the husband has done on one occasion.
For reasons which I set out below, in setting this matter down for further hearing, I will make it clear that, subject to the husband complying with relevant trial directions, the matter will be heard on a defended basis.
Application to enforce orders made by the Supreme Court of New South Wales
The husband’s Application to enforce Orders made by the Supreme Court of New South Wales appears to relate to an Order made on 23 December 2014 (case number 2012/…) revoking a management order, made under the Protected Estates Act 1983 (NSW), for the Protective Commissioner (now called the New South Wales Trustee & Guardian) to appoint a financial manager for the husband.
The husband has not established the existence of a jurisdictional basis for this Court to make any such order and it is otherwise difficult to perceive the purpose of his Application. The solicitor for the wife has attempted to speculate that the purpose of the husband’s Application to enforce the Orders made on 23 December 2014 by the Supreme Court of New South Wales, the husband perceives that those Orders have the practical effect of determining the issue in these proceedings before this Court. I respectfully agree with the submission of the solicitor for the wife that the Orders made by the Supreme Court of New South Wales do not have that effect. In any event, it is not the role of this Court to speculate as to the purpose and intent of an Application in circumstances where a party fails to present an argument justifying the relief they seek and the jurisdictional basis upon which the Court could grant such relief. Accordingly, this aspect of the husband’s Application will also be dismissed.
Application to dismiss the “Application for divorce”
This aspect of the husband Application is also misconceived. There is no application for divorce currently before the Court. The evidence before the Court establishes that an Order for divorce was made by Deputy Registrar Ryan on 13 May 2014.
Section 93 of the Act provides that, “An appeal does not lie from a divorce order after the order has taken effect”. Nonetheless in Price v Underwood (Divorce Appeal) (2009) 231 FLR 308, the Full Court (May, Boland and Ryan JJ) held at [209] as follows:
·A divorce order which has taken effect (“a final divorce order”) is generally to be regarded as inviolate particularly if relied upon by third parties.
·Section 4(1) provides specific power to make a declaration in respect of a divorce order. The provision is not limited to overseas divorce orders or decrees.
·If a final divorce order has been made, a declaration as to its validity may be sought under s 113.
·Section 113 does not itself enable the court to make consequential orders if the court finds a final divorce order invalid, but the court, albeit a creature of statute, may make necessary consequential orders (to set aside the divorce order) as part of its implied powers to control its own processes.
·The ratio in Brennan should be read in context of the facts which pertained in that case, the specific legislation (s 28) and with some reservation, because of the High Court’s discussion of the English Authorities.
·A final divorce order will be void if there is a fundamental flaw in the exercise of jurisdiction — where the flaw is fatal to the validity of the decree.
·If the facts on which a party seeks a declaration that a final divorce order should be set aside suggest the divorce order is voidable, the divorce order may, in the exercise of discretion, be set aside.
(Citations omitted)
Even if the husband’s Application was in the appropriate form, it is wholly without merit. There is no evidence of a fundamental flaw, procedural irregularity or denial of natural justice that justifies the Court exercising it discretion to declare that the divorce Order to be invalid.
The wife’s Application for divorce was served on Somerville Legal who were then acting on behalf of the husband under the authority of the then Protective Commissioner. This is made clear in annexure “V” to the Affidavit of the husband filed 24 September 2020 which includes a letter from Somerville Legal addressed to the husband in which they acknowledge possession of “your divorce documents with respect to your marriage to [the wife]”.
Accordingly, this aspect of the husband’s Application will also, therefore, be dismissed.
Application for the Court to make an order for investigations to be conducted into the wife’s affairs by the “ATO, Ombudsman office and the Police”
There is no jurisdictional basis for this Court to make any such order and the husband’s Application, in that respect, is therefore dismissed.
Applications for caveats on real property
The husband’s Application for a caveat to be imposed on real property pending completion of the proposed investigation by the Australian Taxation Office, the Ombudsman and the New South Wales police force, was not pressed on 16 October 2020 and, accordingly, that aspect of the husband’s Application will not be further considered in this decision.
Application for further disclosure by the wife
As noted, the wife has filed an Affidavit in preparation of her case being determined at the hearing that was to take place in August 2020.
Both parties are under an existing and continuing obligation under Ch 13 of the Rules to provide disclosure in respect to all relevant documents and information that are relevant to these proceedings. The trial directions that I make will confirm that obligation.
At the hearing on 16 October 2020, Mr C Rimac stated that the documentation sought by the husband includes “daily books, bank statements” from the time that husband “came to Australia in 1987 until he had his car accident in 2004.” It was not made clear, however, whether the Application is made in respect to the wife’s bank statements or the husband’s bank statements.
Moreover, the husband has not established how, even if such documents are in the possession of the wife, those documents are relevant to the proceedings before this Court in circumstances where the parties separated in 2011. Accordingly, that aspect of the husband’s Application will also be dismissed.
Application for production of documents by the wife’s solicitor
The Court does not have power to make an order for disclosure against a person or entity who is not a party to the proceedings.
The mechanism to obtain documentation from a third party is for an application to be made for leave to issue a subpoena to that third party. No such application has been made in this case. Accordingly this aspect of the husband’s Application will also be dismissed.
Application for orders compelling the wife’s solicitors to cease acting for her
The Affidavits filed by the husband in these proceedings contain assertions that the solicitors for the wife are conflicted from acting on her behalf.
The husband has not presented any evidence to suggest that the wife’s solicitors are conflicted in continuing to act for her as a result of any association they have had, in the past, with the husband.
Mr Taylor, a partner at the firm of solicitors acting on behalf of the wife, has only been acting for the wife in the period subsequent to the parties’ separation in 2011. No conflict arises in respect to the period in which Mr Taylor has been acting for the wife.
Mr Taylor’s partner, Ms Rimacynne Marie Hughes, has filed an Affidavit in these proceedings, dated 15 October 2020, responding to the allegations made by the husband that the solicitors for the wife are conflicted.
Having regard to the content of that Affidavit, I am satisfied that the only work performed by that firm that marginally related to the husband was a representation made on behalf of the wife to the Office of the Protective Commissioner in the period between July 2006 until September 2006. That representation, as explained by Mr Taylor in these proceedings, related to concerns by both the wife and the husband regarding what they perceived to be some delay on the part of the Office of the Protective Commissioner in dealing with monies which had been transferred to their care under a financial management Order that had been made by the Supreme Court of New South Wales earlier in that year.
Significantly, Ms Hughes attests that, “At no time have [she] ever received any information regarding [the husband] which could be classed as confidential”. No information has been provided to the Court to challenge the veracity of that assertion.
Accordingly, the evidence presented by the husband to the Court has not satisfied the Court that the wife’s solicitors are in any way conflicted in continuing to act on behalf of the wife in these proceedings. That aspect of the husband’s Application will also, therefore, be dismissed.
Application for an adjournment
While not included as a proposed order in either the sealed or unsealed Applications in a Case filed and lodged by the husband in this matter, the content of his Affidavit filed 9 September 2020 makes it clear that he seeks an adjournment of the proceedings which have been listed for hearing commencing on the 24 November 2020.
That Application was, understandably, opposed by the wife in circumstances where she has been waiting for five (5) years for her Application for Final Orders to be heard and determined by the Court. The Court has previously accepted the possibility that the husband may not have received notices of Court events which occurred in March and April of this year and, in circumstances where he was hospitalised in July 2020, the Court has previously adjourned the hearing dates which had been set for 12 and 13 August 2020.
Attached to the husband’s Affidavit filed 9 September 2020 is a report provided by the husband’s treating general practitioner, Dr F, dated 21 August 2020, in which Dr F stated:
1 The reason for [the husband’s] hospitalisation in K Hospital was due to Focal Motor seizure with resultant Todds paralysis, disorientation, aphasia and difficulty moving right limbs and weakness of right limbs.
2 He was treated in with Intravenous clozazepam and anticonvulsant and hospitalised for continuing treatment.
They conducted many CT scan, Blood test and EEG (brain wave)
The diagnosis was Post Todd Seizure. He is to continue the anticonvulsant medication and all his cardiac medications.
3 He was not capable of adequately conducting or give adequate instructions for the conduct of the case on 12/08/2020.
4 Prognosis in respect to the future ability of [the husband’s] court attendance- He should be given 6 months off for any court appearance or any issue to do with the case as he is still gradually recovering from this severe epileptic attack. So the case for 24th November 2020 should be postpone. Increasing stress with trigger off another attack and also precipitate heart attacks which he had before (three times)
The solicitor for the wife contends that the Court should give little weight to the report of Dr F in circumstances where he has not set out the relevant facts nor the basis of his reasoning to conclude that the husband is unfit to participate in legal proceedings for a period of six (6) months following the date of his report. There is, with respect, some force in that submission.
I further note that the clinical notes produced by the K Hospital include a discharge summary confirming that the husband had been admitted to the hospital on 2 July 2020 and discharged on 4 July 2020. The discharge plan records “patient is not to drive for six months”.
The clinical notes record a “similar presentation” in 2018 and that the husband had previously had “generalised convulsions in 2011, 2016 and 2018”.
The solicitor for the wife notes that, despite experiencing those previous episodes, the husband was able to participate in proceedings before this Court including commencing an Appeal in 2018.
Accordingly, I am not satisfied that, as a result of the fact that the husband has experienced epileptic seizures, as noted in the clinical notes, he is unable to participate in proceedings before this Court save to the extent that the Court has strongly recommended that the husband obtain professional legal representation in circumstances where he clearly has the means to do so.
The question becomes; what is an appropriate period of time to enable the husband to recover from the epileptic seizure that he had in July 2020? As noted, the discharge summary stated that the husband should not drive for six (6) months however, Dr F indicated that the husband would not be fit to participate in proceedings for a period of six (6) months from 21 August 2020.
To ensure that the husband has what he perceives to be a proper opportunity to present his case, I will therefore further adjourn the proceedings to a date after a period of six (6) months from 21 August 2020.
The orders will therefore provide for this matter to be set down on a defended basis for a period of five (5) days commencing 3 May 2021. That will allow a sufficient period of time for the husband to fully recover from his epileptic seizure experienced in July 2020 and include time for him to prepare his case.
As foreshadowed on 16 October 2020, the Orders I make will also include usual trial directions including setting a timetable for the filing of affidavits that each party intends to rely upon in the proceedings.
Costs
In my decision in this matter dated 18 August 2020, I set out at [40]-[48] the basis upon which this Court considers an application for costs including an application for indemnity costs.
I have, in this matter, determined that the Application in a Case filed by the husband on 9 September 2020 and the orders sought in the husband’s further unsealed Application in a Case sent to the Court on 1 October 2020, to the extent that those orders were pressed at the hearing of this matter on 16 October 2020, were wholly without merit.
Insofar as I have acceded to an Application for the November hearing dates to be adjourned and for the matter to proceed on an undefended basis, those aspects could have conveniently and expeditiously been dealt with by the Court at the listing of this matter on 24 September 2020 without the need for the 16 October listing.
In terms of s 117(2A)(a) of the Act, I note that the husband’s Financial Statement shows that he holds cash in a bank account in the sum of $1,400,000.
In terms of s117(2A)(c) of the Act, I have determined that the husband’s Application is wholly without merit and I am satisfied that it would be unfair for the wife to be out of pocket in respect to any costs that she has incurred in meeting the husband’s Application.
In so finding, I recognise that the nature and form of the orders sought by the husband have, in large part, been due to the fact that he has been without legal representation. However, as I have noted, the husband has the financial means to obtain legal representation and the fact that he has failed to do so should not prejudice the wife.
Finally, in terms of s 117(2A)(g) of the Act, I note that by letter dated 24 September 2020 the solicitor for the wife set out why the husband’s Application filed on 9 September 2020 was fundamentally flawed and giving notice that, if the husband proceeded with his Application for the proceedings to be summarily dismissed, the wife would seek an order for indemnity costs.
Accordingly, for all of those reasons, I make an order for the husband to pay the wife’s costs in respect to the proceedings heard on 16 October 2020 on an indemnity basis.
I am satisfied that those costs incurred by the wife totalling $4,500 are logical, fair and reasonable in terms of Stoian & Flemming (Costs) [2014] FamCA 944 as referred to in my decision dated 18 August 2020, and I will make an order for husband to pay the wife’s costs in that amount within a period of 28 days.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 2 November 2020.
Associate:
Date: 2 November 2020
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