Sahore v Ahmad
[2022] ACTCA 53
•21 September 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Ahmad v Sahore (No 2) |
Citation: | [2022] ACTCA 53 |
Hearing Date: | 21 September 2022 |
DecisionDate: | 21 September 2022 |
Before: | McCallum CJ |
Decision: | (1) Refuse leave for Ms Judith Keys to appear for Mr Ahmad as a McKenzie friend in the proceedings; (2) Application in proceedings to issue a subpoena to the ACT Bar Association is dismissed; (3) The remaining applications in proceedings are stood over to 7 October 2022 at 9:00am before McCallum CJ. |
Catchwords: | PROCEDURE — MISCELLANEOUS PROCEDURAL MATTERS — Application to appear as a McKenzie friend for appellant —Importance of protecting parties – Undesirability of granting leave to an unaccredited, uninsured advocate — Where proposed McKenzie friend in a position of conflict due to involvement in the proceedings at first instance — Where proposed McKenzie friend has contributed to delay in proceedings and exposed appellant to adverse costs orders |
Legislation Cited: | Court Procedures Act2004 (ACT), s 65 Court Procedures Rules2006 (ACT), s 5436(3) Legal Profession Act2006 (ACT) |
Cases Cited: | Damjanovic v Maley [2002] NSWCA 230 McKenzie v McKenzie [1970] 3 All ER 1034 Sahore v Ahmad [2021] ACTSC 30 |
Parties: | Waqar Ahmad ( Appellant) Honey Sahore ( Respondent) Peter Glover (Proposed Second Respondent) |
Representation: | Counsel Self-represented ( Appellant) C Holloway ( Respondent) K Pattenden (Proposed Second Respondent) |
| Solicitors Aulich Civil Lawyers ( Respondent) United Legal (Proposed Second Respondent) | |
File Number: | ACTCA 28 of 2022 |
Decision under appeal: | Court: Supreme Court Before: Kennett J Date of Decision: 26 April 2022 Case Title: Sahore v Ahmad Court File Number: SC 325 of 2018 |
McCALLUM CJ:
This is an appeal from orders made by Kennett J by consent on 26 April 2022. The orders were entered by consent because the proceedings resolved on the first day of the hearing in circumstances to which I will return. The orders were as follows:
(1) That there be judgment for the plaintiff in the sum of $40,000;
(2) That the partnership between the plaintiff and the defendant is dissolved with effect from 9 September 2014;
(3) The defendant is to pay the plaintiff's costs as agreed or assessed.
Mr Ahmad was the defendant against whom that judgment was entered. He appeals from all of the orders made by Kennett J. Before the Court today are six applications in the appeal proceedings. Before identifying the issues raised by those applications, it is necessary to address a preliminary matter as to representation involving the role of Ms Keys.
Ms Keys has at various times either formally or informally assisted Mr Ahmad in the conduct of his proceedings, both at first instance and in the appeal. She was formally admitted as a legal practitioner and held a practicing certificate until the beginning of 2021. Since then, her participation in the proceedings has been somewhat chaotic. It may be seen from a published judgment of the Court that she is recorded as having appeared as Counsel for Mr Ahmad in proceedings before McWilliam AsJ, Sahore v Ahmad [2021] ACTSC 30, involving an application to set aside subpoenas in the proceedings at first instance from which this appeal is brought. According to the information before me, by that date Ms Keys had not renewed her practicing certificate. The question of her involvement in the proceedings in those circumstances was not addressed by McWilliam AsJ in the judgment.
Ms Keys also appeared at the hearing before Kennett J. She announced her appearance as amicus curiae. His Honour (appropriately, in my respectful opinion) sought to test that statement noting that amicus is a role ordinarily appointed by the Court. Ms Keys informed his Honour that the basis for her appearance on that occasion was simply to seek an adjournment. The adjournment having been refused, Ms Keys evidently accepted without equivocation that she could not proceed to conduct the hearing because that would involve her cross-examining witnesses and, as she frankly told his Honour, she did not hold a practicing certificate.
It is not clear when and how often Ms Keys has appeared in the appeal. She did not appear when an earlier application in proceedings came before Mossop J on 27 July 2022. On that occasion, Mr Ahmad is recorded as having appeared on his own behalf. However, this morning, when the matter was called, Ms Keys announced her appearance for the appellant. I questioned that on the strength of information that appeared on the top of the Court file, namely an email to the Court in which Ms Keys criticised the solicitor for the first respondent for having expressed doubt as to the role played by Ms Keys in the proceedings. The email said:
Finally, Ms Holloway states in paragraph 1 of her email that she “understands” I am “providing the appellant with legal assistance.” I do not know the basis for Ms Holloway's understanding but she is mistaken once again. I have represented the appellant under section 65 of the Court Procedures Act since the third callover on 18 August 2022 because the appellant has been unable to find a solicitor in Canberra who will accept instructions from him (despite his significant efforts).
The email goes on to complain about the conduct of another judge of the Court at earlier appearances in the proceedings.
Ms Keys' assertion in that email prompted me to think that she must be a legal practitioner holding a practicing certificate. However, I noticed that the applications in proceedings filed by the appellant are filed in his own name with no legal representative named. I searched the file in vain for a notice of appearance or any indication as to Ms Keys’ formally appearing. In due course I pressed Ms Keys this morning as to those matters, only to learn the information that had apparently been rehearsed in previous proceedings before other judicial officers as I have recited.
What is confounding is that, despite having recognised that she was not permitted to appear before Kennett J, Ms Keys now asserts an entitlement to appear in this Court ostensibly, as I have indicated, by virtue of the provisions of s 65 of the Court Procedures Act2004 (ACT). That section does not authorise a person who does not hold a practicing certificate to appear as a legal representative in legal proceedings. Although the section uses the word “lawyer”, it is plainly to be read in the statutory context in which it appears, which includes the provisions of the Legal Profession Act2006 (ACT). That Act in turn makes plain that a person is not entitled to operate as an Australian legal practitioner if he or she does not hold a current practicing certificate. So much is orthodox to any person fit to hold a practicing certificate.
The applications before the Court today reflect the difficulties. There are four applications that have been filed on behalf of the appellant. Three might properly be regarded as a single application that has been amended twice. I will list them for abundance of caution. First, there is an application in proceedings lodged on 10 August 2022. By that application, the appellant seeks to have further evidence allowed or admitted as further evidence in the appeal and, as a consequential order, to have Mr Peter Glover joined as a party to the appeal. I will return to explain his role in the proceedings.
The second is an amended application filed 2 September 2022 which, although described as an amended application, does not mark up the amendments but which goes further in seeking additional material to be allowed in the appeal as well as an application for the Court to receive fresh evidence. Next, there is a further amended application in proceeding lodged on 12 September 2022 by which, evidently in response to a complaint that she was causing delay in the proceedings, Ms Keys has drafted for Mr Ahmad an application to have the appeal set down for hearing pursuant to r 5436(3) of the Court Procedures Rules2006 (ACT) and to have leave to rely on a further additional piece of fresh evidence.
Finally on behalf of the appellant, and separately from those three applications concerning conduct of the appeal, there is an application in proceeding filed on 20 September 2022. This is perhaps the most curious of the appellant's applications. It is an application whereby the appellant purports to seek leave to issue a subpoena to the proper officer at the ACT Bar Association in connection with a letter sent by email from the President of the Bar to Ms Keys. The letter records that a complaint was made against her. In response to receipt of that letter, the subpoena seeks various material evidently seeking to go behind the complaint and to understand its provenance.
What issue in the appeal any such document might relate to escapes me. In response to my indication that I did not think Ms Keys was entitled to appear as Mr Ahmad's lawyer by the authority of s 65 of the Court Procedures Act, she sought to move on that last application indicating that she needed the documents that might be obtained in response to the subpoena in order to justify her entitlement to appear as a McKenzie friend. The history I have recited, I hope, gives the explanation for my refusing to embark upon that procedure.
The application for leave to issue the subpoena must be dismissed for the simple reason that, as I have indicated, the documents sought do not relate to any issue in the appeal. Separately, the history I have recited, I hope, gives the explanation for my conclusion that, as I indicated to Ms Keys at the conclusion of the argument, she should not have leave to appear as a McKenzie friend for Mr Ahmad. There are several reasons for that conclusion. It may be accepted that, as a matter of authority, the Court can allow a person who is not legally qualified or entitled to practice as an Australian legal practitioner to appear before it in the role described as a McKenzie friend after the case of that name: McKenzie v McKenzie [1970] 3 All ER 1034.
The respondents provided me with two helpful authorities in relation to that question. The first is a decision of the New South Wales Court of appeal in Damjanovic v Maley [2002] NSWCA 230; (2002) 55 NSWLR 149. In that decision at [69], Stein JA (with whom Mason P and Sheller JA agreed) summarised “themes or principles” relevant to the exercise of the discretion to grant or refuse leave to an unqualified person to appear on behalf of an unrepresented litigant. Those matters were the complexity of the case; genuine difficulties of the unrepresented party and the unavailability of disciplinary measures and a duty to the court by lay advocates; protection of the client and the opponent; competing considerations in favour of allowing lay advocates in inferior courts and tribunals; and, finally, the interests of justice. As I will explain, the consideration of those matters does not suggest that leave should be granted in the present case.
Secondly, the respondents relied on the decision of McWilliam AJ in Polleycutt v Aldcroft [2019] ACTSC 174 where her Honour acknowledged the inherent jurisdiction of the Court to allow an unqualified person to appear but said at [10]:
However, the exercise of the Court's discretion to depart from the ordinary course must be carefully controlled and the Court must be jealous to ensure that the safeguards which follow from proper legal representation are not eroded by allowing for representation by unqualified persons who do not have the responsibilities and duties of counsel.
The principal consideration in the present case, in my assessment, is the unavailability of disciplinary measures and a duty to the Court and the importance of protection both of the supposed client, Mr Ahmad, and the opponent, the respondents to this appeal. The need for protection may be seen to be acute in the present case. The following observations may be made about the participation of Ms Keys in the proceedings which point to the undesirability of her being granted leave to appear as a McKenzie friend.
The first requires me to return, as I said I would, to explain the circumstances in which the proceedings before Kennett J were resolved. The matter was listed for hearing. It had been listed for hearing for some time, since 30 September 2021. It was called on for hearing on 26 April 2022. As indicated, on that occasion Ms Keys announced her name and her appearance as amicus curiae.
Ultimately, as I have indicated, there was an application for an adjournment which his Honour rejected. The matter was then stood in the list for a short period of just under an hour on the basis that his Honour understood the parties had had some discussion and his apprehension that the decision he had made, that is to refuse the adjournment, may be something Mr Ahmad would need to contemplate and that there might be further discussions.
In due course when his Honour resumed the hearing, Mr Pattenden, appearing for the then plaintiff in the litigation, said:
Thank you, your Honour, for the time. I can advise the Court the parties have reached agreement to resolve the matter. Noting the circumstances that the defendant is unrepresented technically, although Ms Keys who you see is in Court and has assisted in the negotiations so he is informed, I propose, subject to your Honour, is that it should be read onto the record and then maybe it is appropriate that the Court confirms with the defendant. I am in your hands in that regard as to how you wish to do it.
Mr Pattenden then indicated the orders proposed which were as I have read at the beginning of this judgment. After confirming that those were the form of orders sought by the then plaintiff, the exchange continued:
HIS HONOUR: Yes, now, Mr Ahmad, you have been involved, have you, in some discussions with the other side this morning?
MR AHMAD: Yes, your Honour.
HIS HONOUR: And did you understand the orders that Mr Pattenden just read out to me?
MR AHMAD: Yes, your Honour.
HIS HONOUR: All right, so those will be made with your consent.
MR AHMAD: Yes, your Honour.
Kennett J then proceeded to make the orders. What may be seen from that transcript is that, to the extent that there is now a challenge to those orders made by consent, according to the record of the proceedings, Ms Keys assisted Mr Ahmad in the negotiations and was present when the orders were provided to the Court and made by the Court. The record does not expressly reveal that she was present when the agreement was reached. However, it seems likely that she drafted the notice of appeal which records in former ground 4(a)(iii) (since dismissed by Mossop J):
The appellant was compelled to consent to the orders prescribed by the respondents when the only alternative was to proceed unrepresented and the complexity of the case was beyond his capacity.
My point here is that the notice of appeal expressly acknowledges that the appellant did consent to the orders. The complaint is with the manner in which the agreement was reached. It is difficult to imagine a clearer illustration of a potential conflict between Ms Keys’ aspirational role as the McKenzie friend to conduct the appeal and her involvement in the settlement of the proceedings at first instance.
Secondly, in my assessment, Ms Keys would also have a conflict illustrated in the only remaining ground of appeal. I have alluded to the fact that ground 4(a) has since been dismissed by Mossop J. That occurred on 27 July 2022. At that stage, the respondents also sought to have ground 4(b) dismissed. His Honour concluded that that ground was weak but allowed it to proceed. The only remaining ground of appeal therefore is:
The appellant was denied the opportunity to be heard in connection with his defence of the first respondent’s claim filed 17 July 2018, because of the second respondent’s conduct described in (a) above.
Mossop J took the view that, because that ground raised an allegation of denial of procedural fairness, it ought to be allowed to be heard. The difficulty is that Ms Keys is inextricably connected with the circumstances in which any alleged denial of procedural fairness will need to be demonstrated. Hers was the decision to move towards the hearing with an adjournment application. Hers is the complaint that, once that was refused, she could not appear. Those circumstances undoubtedly contributed to any denial of an opportunity for Mr Ahmad to be heard.
Thirdly, Ms Keys, in my respectful opinion, has demonstrated by her conduct of the appeal that, far from assisting Mr Ahmad, she has contributed to delay in the proceedings and, more troublingly, exposed him to the risk of adverse costs orders. I have already explained why the fourth application in proceedings seeking leave to issue a subpoena to the ACT Bar Association is completely misconceived.
The other three applications are difficult to comment upon. What can be said, based on my exchange with Mr Ahmad this morning, is that he is not aware of having made those applications, he having confirmed to me that he simply relied on Ms Keys’ advice. The applications seek to introduce a whole raft of fresh evidence in a proceeding which itself is evidently misconceived; the proper remedy for setting aside an agreement or a settlement agreement reached in proceedings before the Court, where it is maintained that the agreement was reached as a result of some duress or unconscionability, is to file a suit in equity seeking to have the settlement agreement set aside. No error can be demonstrated in the making of orders by a judge who is told proceedings have resolved and that orders are sought by consent.
Finally, in my respectful opinion, leaving aside the conduct of the appeal, Ms Keys has demonstrated by her correspondence with the parties and with the Court a lack of insight into the extent to which she is not assisting Mr Ahmad in her conduct on his behalf of the appeal. I have already referred to the email which I saw as the first document on the Court file when preparing for the hearing today. Apart from the passage I have read, there are several other contentions and assertions in that email which are either mistaken or misconceived. They are highly critical of the diligent and careful Ms Holloway who, by contrast, has illustrated in her correspondence careful attention to detail and a proper approach to her responsibilities in the litigation.
Based on my exchanges with Mr Ahmad this morning, I have no confidence that he has seen any of the careful correspondence prepared by Ms Holloway, the contents of which appear to have been rejected with derision by Ms Keys. Those are the reasons for which I refused Ms Keys leave to appear as a McKenzie friend today.
To adopt the words of Kennett J when the same position was reached in the proceedings at first instance, that leaves Mr Ahmad in a pickle. He has, as I have indicated, brought four applications in proceedings which he does not appear to have known anything about. He can hardly be expected to argue those today. He also faces two applications by the existing respondent and the proposed second respondent, whom he has sought to join (although he is probably not aware of that fact), for security for costs. Those applications have considerable force because, as I have explained, the appeal itself seems to me to be misconceived.
After I had refused leave to Ms Keys to appear, I asked Mr Ahmad what he wished to do. He indicated that he would seek more time to obtain legal advice. On the one hand, he has had ample time to do that, and it is not fair to visit on the respondents any further delay or complication in the prosecution of this appeal.
On the other hand, such is the disservice that has been done to Mr Ahmad by the participation of Ms Keys in the proceedings that I am concerned he has had no opportunity to understand what he has launched and whether he would wish to extricate himself from it, or bat on facing the applications for security for costs brought by the two respondents.
Based on something recorded by Ms Keys, I had made inquiries about the possibility of obtaining the assistance of an interpreter for Mr Ahmad. However, he has indicated this morning that an interpreter is neither necessary nor appropriate. He has indicated that he understands English, he just does not understand the legal issues. I am concerned about his saying that he does not understand the legal issues especially as they have become so complex unnecessarily. I am very worried about his exposure to costs if he bats on and I am concerned to make sure he understands that before proceeding.
Because I distracted myself with the issue of an interpreter as a result of what was recorded in Ms Keys' correspondence, I have not asked the Registrar about the possibility of a referral for a pro bono representation. I would not have in mind that anyone should be asked to take on representing Mr Ahmad in the appeal but what I do think should happen is that someone other than Ms Keys should sit down with him and explain this judgment to him and then see what he wants to do about the applications in the proceedings.
The respondent would take the position that I should dismiss his applications today and make the orders for security, but I am worried about procedural fairness and I do think there should be one short opportunity for Mr Ahmad to sit down with someone to explain the implications of the rather speedy judgment that I have just given and to make a decision about what he does next.
I will stand the proceedings over for two weeks and see whether in that time I can secure a volunteer properly as amicus to explain this judgment to Mr Ahmad and then I will bring the proceedings back before me when that has occurred.
(Her Honour then addressed Mr Ahmad directly as follows):
Mr Ahmad, you said that you wanted an opportunity to have someone give you legal advice. I am just not particularly optimistic about that because that is something you were trying to do for a very long time and you were not able to get that advice. That is why I think perhaps a half-way house is to have a pro bono lawyer sit down with you and explain to you the judgment that I have just given and the implications of it.
At the moment, you have three applications before the Court which, as I understood this morning, you do not understand and therefore you can hardly be expected to argue them but it may be that when you sit down with someone, they can help you make a decision about those applications that is in your best interests.
You also face two applications by the other side. As I said, they say your appeal has no merit. If you want to run your appeal, you need to put up the money now. The sum they are asking for you to put up is a total of $70,000 in circumstances where, so far as the record shows, you have agreed to pay Mr Sahore $40,000. So you need to think about your position in relation to that equation and what you want to do.
If the Bar Association can offer me a barrister who is prepared to sit down with you and spend that time to explain the judgment to you, then I will bring it back on 7 October 2022 and I would very much like to be in a position then to deal with these applications that were before me today.
I make the following orders:
(1) Refuse leave for Ms Judith Keys to appear for Mr Ahmad as a McKenzie friend in the proceedings;
(2) Application in proceedings to issue subpoena to ACT Bar Association is dismissed;
(3) The remaining applications in proceedings are stood over to 7 October 2022 at 9:00am before McCallum CJ.
| I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: |
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