Skrijel v Mengler - [2003] VSC 128

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

No. 5446 of 1993

MEHMED SKRIJEL	Plaintiff
v
JOHN CARL MENGLER	Firstnamed Defendant
COMMONWEALTH OF AUSTRALIA	Secondnamed Defendant
GARY WESTON COOK	Thirdnamed Defendant
STATE OF VICTORIA	Fourthnamed Defendant

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JUDGE:	NETTLE J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 April 2003
DATE OF JUDGMENTSENTENCERULING:	23 April 2003
CASE MAY BE CITED AS:	Skrijel v Mengler and Ors
MEDIUM NEUTRAL CITATION:	[2019] VSC 128

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M. Skrijel in person
For the Firstnamed Defendant	Mr M. Tovey QC with Mr P. Marzella	Hardham Dalton & Sunberg
For the Secondnamed Defendant	Mr B. Walters SC with Mr K. Mueller	Australian Government Solicitors
For the Thirdnamed Defendant	Mr J. Santamaria QC with Mr M. Gindberg	Victorian Government Solicitors
For the Fourthnamed Defendant	Mr R. Gipp	Ebsworth & Ebsworth

HIS HONOUR:

This is the 15th day of the trial. The plaintiff's case is close to completion. It remains only for the re‑examination of Mr Berthelsen to be undertaken and for one further witness, a Dr Kahn, to be called. There may also be a couple of documents in addition to those already tendered upon which the plaintiff will seek to rely.

This morning upon the hearing resuming at 10.30 a.m., application was made ore tenus by Mr Edwards, a solicitor on behalf of the plaintiff, for an order under Rule 15.03 of the Rules of Court that Mr Berthelsen be appointed as the plaintiff's litigation guardian and thus, as it was put, be entitled to appear for the remainder of the trial on behalf of the plaintiff. Reference was made in support of the application to what was said by the Full Court of the Family Court in Watson v. Watson[1] which concerned an application for the appointment of a next friend pursuant to Order 15, rules 14, 9 and 11 of the rules of the Family Court.
[1](2001) Fam CA 1470

There was also tendered in support of the application a medical certificate signed by a Dr W.D. McKenzie, in which Dr McKenzie wrote: "This man" ‑ which is to say the plaintiff ‑ "is suffering from extreme anxiety. This is not surprising considering the task he has undertaken. He is jeopardising his own welfare by continuing and should withdraw from the action. Fortunately he understands this advice."

Rule 15.03 of the Rules of Court provides for the appointment of a litigation guardian on behalf of a person under disability and a person under disability is defined to mean "a minor or a handicapped person". "A handicapped person" means "a person who is incapable by reason of injury, disease, senility, illness or physical or mental infirmity of managing his affairs in relation to the proceeding."

Whatever may be the effect of Dr McKenzie's certificate, in my opinion falls far short of establishing that the plaintiff is incapable by reason of injury or otherwise of managing his affairs in relation to the proceeding. It may be enough to…

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.

Continue reading Skrijel v Mengler

Details

AGLC: Skrijel v Mengler [2003] VSC 128
Case: [2003] VSC 128
Decision Date: 23 April 2003

CaseChat Overview and Summary

In the Supreme Court of Victoria, Mehmerd Skrijel brought an action against John Mengler and others. The court was tasked with determining whether to allow David Berthelsen, a close friend of the plaintiff, to act as a lay advocate on behalf of the plaintiff due to his inability to afford legal representation and his previous difficulties in retaining legal counsel. The defendants did not oppose the appointment, believing it to be in their best interests to conclude the matter without further delay or cost.

The court examined the inherent jurisdiction to allow a lay advocate to appear in exceptional circumstances, particularly considering the complexity of the case, the potential for increased costs and delays, and the interests of all parties involved. The court noted that while it is generally appropriate to insist on proper legal representation, there may be situations where allowing a lay advocate is justified, such as when the party cannot afford legal representation and the other parties consent.

The court concluded that this case was exceptional due to the plaintiff's financial constraints, the complexity of the issues, and the consent of the defendants. The court exercised its inherent jurisdiction to grant leave for David Berthelsen to represent the plaintiff, recognising the close relationship between the plaintiff and Berthelsen and the potential harm to the defendants if the matter were to continue without representation.

The court made an order allowing David Berthelsen to represent the plaintiff in the proceeding, noting that this would be authorised by the court under the Legal Practice Act 1996.

Orders