FEDERAL COURT OF AUSTRALIA
Slack v Bottoms English Solicitors, Steindls Solicitors & Miller Harris Lawyers [2003] FCA 1337
PRACTICE AND PROCEDURE – appeal - whether Federal Court should grant leave for bankrupt to be represented by a non-lawyer
APPEALS – Bankruptcy - where appellant sought to recanvass issues determined in other courts – where no basis for impugning the judgments on which bankruptcy notice and petition were based – no legal error in the making of sequestration order
Bankruptcy Act 1966 (Cth) s 308
Federal Magistrates Court Act 1999 (Cth) ss 44(1), 52(1) and (2)Federal Court Rules, O 4, r 14
International Alpaca Management Pty Ltd v Ensor [1999] FCA 72 cited
Sandell v Porter (1966) 115 CLR 666 followedRICHARD JOHN SLACK v BOTTOMS ENGLISH SOLICITORS, STEINDLS SOLICITORS and MILLER HARRIS LAWYERS
No Q 128 of 2003
SPENDER J
BRISBANE (heard in Cairns)
20 NOVEMBER 2003
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 128 OF 2003
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
RICHARD JOHN SLACK
APPLICANTAND:
BOTTOMS ENGLISH SOLICITORS
STEINDLS SOLICITORS
MILLER HARRIS LAWYERS
RESPONDENTJUDGE:
SPENDER J
DATE OF ORDER:
20 NOVEMBER 2003
WHERE MADE:
BRISBANE (heard in Cairns)
THE COURT ORDERS THAT:
The appeal is dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 128 OF 2003
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
RICHARD JOHN SLACK
APPLICANTAND:
BOTTOMS ENGLISH SOLICITORS
STEINDLS SOLICITORS
MILLER HARRIS LAWYERS
RESPONDENT
JUDGE:
SPENDER J
DATE:
20 NOVEMBER 2003
PLACE:
BRISBANE (heard in Cairns)
REASONS FOR JUDGMENT
This is an appeal from orders made by Federal Magistrate Coker on 12 August 2003, for the sequestration of the estate of Richard John Slack, the appellant.
The making of the sequestration order had been preceded by a long saga of litigation. The merits of that litigation and the facts underlining it have been the focus of the attention of Mr Slack on this appeal, and on other occasions by those who have acted on his behalf, who have conflated their complaints as to the results of litigation in Supreme Court proceedings, with the correctness of the making of the sequestration order against the estate of Mr Slack.
On the hearing of the appeal, one Sohail Laghaifar, a non-lawyer, sought to appear for Mr Slack. Mr Laghaifar had filed submissions on Mr Slack’s behalf. Mr Laghaifar sought to rely on an enduring power of attorney as providing authority for him to act on Mr Slack’s behalf in legal proceedings. Such a power of attorney does not provide a lawful basis for a non-lawyer to act for a party in litigation in a Federal Court.
Section 44 of the Federal Magistrates Act 1999 (Cth) deals with representation, and provides:
‘A party to a proceeding before the Federal Magistrates Court is not entitled to be represented by another person unless:
(a)Under the
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- Case
- [2003] FCA 1337
- Decision Date
CaseChat Overview and Summary
The Federal Court found that there was no provision in the Federal Court Rules that allowed a non-lawyer to represent a party in an appeal from the Federal Magistrates Court to the Federal Court. The Court also found that even if there was such a provision, it would not have been in Mr Slack’s best interests for Mr Laghaifar to represent him. This was because Mr Laghaifar had made scandalous allegations against the judges and lawyers involved in the case, without any evidentiary basis. The Court also found that Mr Laghaifar had wilfully disobeyed the Court’s directions, interrupted, interjected and disrupted the hearing of the appeal.
The Federal Court dismissed the appeal with costs. The Court found that the sequestration order was valid and that Mr Slack’s bankruptcy was properly established. The Court also found that the respondents were entitled to the costs of the appeal.
The Federal Court’s decision highlights the importance of legal representation in court proceedings. The Court found that it was not in Mr Slack’s best interests for Mr Laghaifar to represent him, despite the fact that Mr Slack had chosen to be represented by Mr Laghaifar. The Court also found that Mr Laghaifar’s conduct during the appeal was disruptive and disrespectful, which further undermined his suitability to represent Mr Slack. The Court’s decision also highlights the importance of evidentiary basis for allegations made in court proceedings. The Court found that Mr Laghaifar’s allegations against the judges and lawyers involved in the case were scandalous and without any evidentiary basis, which further undermined his credibility as a representative.
Orders
Orders of the court
The appeal is dismissed with costs.
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
Established by: SPENDER J
Despite this, Mr Laghaifar sought to appear on Mr Slack’s behalf at the hearing of the appeal. Order 4, rule 14 of the Federal Court Rules provides:‘14(1) Subject to sub-rule (2) and to Order 43 (which relates to disability), any person may proceed in the Court by a solicitor or in person.14(2) [Proceeding commenced by corporation] Except as provided by or under any Act, a corporation may not, without the leave of the Court, commence or carry on any proceeding otherwise than by a solicitor. …’Order 4, rule 14(2) provides that a court may give leave for a non-lawyer to act for a corporation. Order 4 is silent on any power of the Federal Court to permit a non-lawyer to act for a party to an appeal from a judgment of the Federal Magistrates Court to the Federal Court. Even if there were power in the Court to grant such leave, which I doubt, I would not have granted leave for Mr Laghaifar to act on Mr Slack’s behalf on the appeal. In the submissions filed by Mr Laghaifar on Mr Slack’s behalf, there were scandalous allegations made against Justice Jones of the Supreme Court of Queensland, Federal Magistrate Coker and the solicitor who acted for the respondents in the present appeal. Those submissions were replete with serious allegations of criminal conduct, without the slightest evidentiary basis. Further, when the appeal was called on, Mr Laghaifar persisted in wilfully disobeying directions of the Court, interrupting, interjecting and disrupting the hearing of the appeal. I concluded that, even if the Federal Court in the exercise of its appellate jurisdiction had power to grant leave to Mr Laghaifar to act on Mr Slack’s behalf, it would not have been in Mr Slack’s best interests, or in the interests of justice, for Mr Laghaifar to so appear. The same considerations would have been relevant to deny to Mr Slack any opportunity to have Mr Laghaifar assist him as a Mackenzie Friend. It is important to understand the basis for the making of the sequestration order, if only because it is quite clear that Mr Slack regards the question of the correctness of that order as being dependent on, or involving, the correctness of judgments in the Supreme Court with which Mr Slack has been involved. The bankruptcy notice which founded the creditors’ petition leading to the making of the sequestration order, the subject of this appeal, was issued by Bottoms English Solicitors (a partnership), Steindls Solicitors (a partnership) and Miller Harris Lawyers (a partnership), the respondents to this appeal. That notice was founded upon an order made by the Supreme Court of Queensland on 5 November 2001 by Justice Jones, that the appellant Mr Slack pay the costs of the proceedings of the second, third and fifth defendants in proceedings 50/2001, to be assessed. Those costs were assessed in the sum of $6,106.95 on 26 February 2002. That bankruptcy notice, issued by the respondents as joint creditors in respect of a single debt, was served on Mr Slack on 13 May 2002. On 3 June 2002 he applied to the Federal Magistrates Court for an order setting aside the bankruptcy notice, which application was dismissed by Federal Magistrate Coker on 2 August 2002. Mr Slack applied for an extension of time within which to file and serve an appeal against the decision of Federal Magistrate Coker dismissing the application to set aside the bankruptcy notice. On 20 November 2002 I dismissed that application, with costs.