Appellant v Respondent

PRACTICE AND PROCEDURE - Role of 'McKenzie friend' - Apostolou v Commissioner of State Revenue [2008] VSC 332; McKenzie v McKenzie [1971] P33, 38.

Mr R Giza, by leave, appeared on the question as to whether he should be permitted to represent the Appellant - but not otherwise

1 The appellant, Joseph Vella, owned a factory in Keysborough. The mortgagee sold the factory to the respondent by contract of sale dated 18 July 2012.

2 By deed dated 7 December 2012, the respondent agreed to purchase from Mr Vella an accessory unit adjacent to the factory used for car parking spaces. The agreed price for the sale of the accessory unit was $15,000 plus GST. Settlement was due on 20 December 2012.

3 The parties to the deed included Mr Vella, the respondent, Richard Giza and a company associated with Mr Vella and Mr Giza. Mr Giza and the associated company were joined as parties to the deed because of their interests in certain goods stored in containers at the factory, about which there was a dispute concerning storage costs. The deed included provisions to enable those goods to be collected in an orderly fashion by Mr Vella, Mr Giza and their company.

4 Mr Giza did not complete the contract of sale for the accessory unit. The respondent instituted proceedings in the Magistrates' Court of Victoria seeking specific performance. Mr Vella did not file a defence. Default judgment was entered on 24 June 2013 for specific performance.

5 On 19 November 2013, the Magistrates' Court again made an order for specific performance of the contract of sale. Mr Vella appeared at that hearing and his arguments were rejected.

6 Mr Vella did not comply with the orders for specific performance. In these circumstances, the respondent applied to the Magistrates' Court for orders that the Registrar of that Court execute a transfer of land to give effect to the contract of sale. The hearing was set down for 6 June 2014. By email dated 5 June 2014, Mr Giza advised that neither he nor Mr Vella were able to attend the hearing on 6 June and provided standard form medical certificates from a local doctor.

7 On 6 June 2014, the Magistrate determined to proceed with the hearing in the absence of Mr Vella or Mr Giza as his representive. In summary, the Magistrate determined that the following circumstances justified him in proceeding in their absence:

(1) the history of the matter was such that it was not in the interests of justice to further delay finalisation of the proceeding;

(3) Mr Vella had not complied with either of the orders for specific performance;

(4) based on his observations of Mr Vella on 19 November 2013, the Magistrate was satisfied that Mr Vella understood the implications of an order for specific performance;

(5) the two medical certificates were relevant but the Magistrate was not satisfied that it was unfair, or that there would be any injustice, if he proceeded with the hearing in the absence of Mr Vella; and

(6) Mr Vella had not sought to appeal either order for specific performance.

8 The 6 June orders of the Magistrates' Court authorised the respondent's solicitors to draw a transfer of land in registrable form in respect of the accessory unit, for a Registrar of the Magistrates' Court to execute the transfer of land on behalf of Mr Vella, for the respondent to pay the mortgagee the necessary fees to obtain a discharge of mortgage over the accessory unit, and for the respondent to pay the balance of the contract sum (after deducting costs ordered in favour of the respondent against Mr Vella) to the solicitors acting for a caveator over the accessory unit.

9 Mr Vella wishes to appeal against the Magistrates' Court orders. He does not have a solicitor or other legal representative. Nor does he wish to exercise his right to act on his own behalf. Instead, all of the court documents filed in respect of his proposed appeal bear the notation:

Prepared & Filed by: Richard Giza - Joseph Vella by his Attorney with the power of Attorney

10 The first directions hearing in the appeal came on for hearing before Lansdowne AsJ on 13 August 2014. Mr Vella did not attend. Mr Giza appeared and claimed that he was entitled to represent Mr Vella by reason of a general form of power of attorney given to him by Mr Vella in accordance with s 107(1) of the Instruments Act 1958 (Vic). The respondent objected to Mr Giza appearing for Mr Vella or acting on his behalf in the proceeding generally. Objection was taken because Mr Giza is not a legal practitioner, and thus he is neither authorised to institute proceedings on behalf of Mr Vella or to represent him in Court. Reliance was placed upon R v Leicester City Justices; Ex parte Barrow & Anor.[1]

11 Mr Giza relied upon the fact, as he put it from the Bar table, that the Magistrate had allowed him to speak on behalf of Mr Vella because 'Mr Vella has a very, very limited vocabulary because he is illiterate actually'.[2] Mr Giza also relied upon the fact that he was Mr Vella's business partner.

12 Lansdowne AsJ refused Mr Giza leave to appear on behalf of Mr Vella. She gave brief oral reasons, which were subsequently revised and reproduced in the 'other matters' section of her orders made on 13 August 2014 in the following terms:

1. Only a party in person or by legal practitioner has a right of appearance. It is not correct to assert, as does Mr Giza, that a person has a right to choose representation by other than a legal practitioner. In particular, a power of attorney does not confer any right on the donee of the power to appear for the donor of the power. The Court has power to grant leave to a person who is not a legal practitioner to appear for a party but that leave is rarely given.
2. In this instance, the principal factor relied upon is that the appellant is illiterate. Without hearing from Mr Vella in person, the Court does not consider his illiteracy (even if established) to be sufficient reason for the grant of leave to Mr Giza to appear for him. Illiteracy does not prevent a person dictating and adopting documents on those documents being read to him or her, or making oral submissions. The Court may also permit a litigant in person to be assisted by a 'McKenzie friend', but a 'McKenzie friend' has no right to make submissions.
3. The intent of order 2 (ii) is to confirm that the appellant authorises the commencement of proceedings in his name, with the usual consequences including liability for costs. This proceeding has been commenced by Mr Giza, in the appellant's name.

13 Mr Giza, on behalf of Mr Vella, seeks to appeal that decision under r 77.06 of the Supreme Court (General Civil Procedure) Rules 2005.

14 Before turning to the grounds of appeal, it is necessary to record that appeals from associate judges are no longer by way of rehearing de novo. Such appeals are rehearings in the ordinary sense, which require the applicant to show error on the part of the associate judge before appellate power may be exercised, and particular caution will be exercised in reviewing discretionary decisions on matters of practice and procedure.[3]

15 I gave Mr Giza limited leave to appear on the hearing of the appeal, for the purpose of arguing the sole issue as to his entitlement to represent and appear on behalf of Mr Vella. Mr Giza asked that he be assisted by another lay person, Stanislawa Bahonko, as a 'McKenzie friend'. In the unusual circumstances of the case, I gave limited leave to Mrs Bahonko to assist Mr Giza. She sat at the Bar table, assisted him with documents and the like, and made no submissions.

16 By the notice of appeal filed by Mr Giza on behalf of Mr Vella, Mr Vella seeks orders that Mr Giza is legally entitled to represent him in his appeal from the Magistrates' Court and that Mrs Bahonko, as Mr Giza's 'McKenzie friend', is 'entitled to speak in court upon request from [Mr Vella] or in the interests of justice'. This relief is sought upon a variety of grounds of appeal. The grounds of appeal are expressed in unsatisfactory terms and are repetitive. Based on my discussions with Mr Giza during the course of the hearing, the grounds of appeal may be summarised as follows:

(1) The reasons of Lansdowne AsJ were not 'judiciary reasons' because of the lack of reference to authority or statute.

(2) The general power of attorney granted by Mr Vella (as donor) to Mr Giza (as donee) gave Mr Giza an unqualified right to represent Mr Vella in the proceeding. Reliance was placed upon s 107(1) of the Instruments Act.

(3) Mr Vella's entitlement under ss 8 and 24 of the Charter of Human Rights and Responsibilities Act 2006, to recognition and equality before the law and to a fair hearing, informed the Court's discretion to allow a lay person to represent another person in legal proceedings. This is especially so in circumstances such as the present, where Mr Vella is illiterate, does not understand legal language and is incapable of representing himself.

(5) Lansdowne AsJ did not provide Mr Giza, as Mr Vella's attorney, with proper assistance as (in effect) a litigant in person.

17 I do not accept Mr Giza's contentions. As to the first contention, although her reasons were expressed briefly and without reference to authority, the associate justice's decision to refuse leave to represent Mr Vella disclosed a clear path of reasoning. The brevity of her Honour's reasons, and the lack of reference to authority, does not make the reasons inadequate.

18 Second, Mr Giza's reliance upon s 107(1) of the Instruments Act 1958 was misplaced. That section provides that a general power of attorney confers on the attorney 'authority to do on behalf of the donor anything (other than delegate his powers under the power of attorney) which he can lawfully do by an attorney'.[4] The emphasised words are important. In Waddington v Magistrates' Court of Victoria & Kha (No 2),[5] Emerton J considered a similar argument. In that case, it was contended that Mr McDonald was a person 'empowered by law' within the meaning of s 100(6) of the Magistrates' Court Act 1989 (Vic) to appear on behalf of Mr Waddington, who was a party to the Magistrates' Court proceeding. The power of attorney in that case apparently expressly authorised Mr McDonald to present Mr Waddington's case in the proceeding. Mr Waddington relied also upon the general principle of agency expressed in Halsbury's Laws of England, 5th Edition, as follows:

As a general rule whatever a person has power to lawfully to do can be done by him, her or it through an agent. There are exceptions including where a statute prevents it and where the power concerned is purely personal and therefore not capable of delegation.[6]

19 As Emerton J noted, there are restrictions upon an attorney appointed by an instrument such as that in this case. Both the Instruments Act and the general agency principles set out in Halsbury state that an attorney can only be lawfully appointed to do that which the donor of the power can lawfully do by an attorney.[7]

20 In this case, as in Waddington, there is a statutory prohibition upon persons who are not qualified as legal practitioners from representing a party to a legal proceeding. Section 2.2.2 of the Legal Profession Act 2004 (Vic) prohibits a person from '[engaging] in legal practice' unless the person is a legal practitioner. Section 2.2.2(2)(f) creates an exception to this rule where the person represents another person in a proceeding by another law of the jurisdiction or by leave of the relevant court or tribunal.

21 In Waddington, Emerton J held that Mr McDonald's proposed representation of Mr Waddington would amount to him unlawfully engaging in legal practice for the purposes of the Legal Profession Act.[8] That conclusion was expressly approved by the Court of Appeal in Waddington v Dandenong Magistrates' Court & Anor, where Nettle JA stated:

1. I do not consider that the judge erred in the manner alleged. Possibly, an occasional honorary appearance by a lay spokesperson on behalf of a party would not without more rise to the level of engaging in legal practice. There is some support for that idea in the observations by Gowans J in Hubbard that, so long as a lay spokesman did not purport to appear as a solicitor, he might not be said to be acting as a solicitor. But, as the judge said, the idea of 'engag[ing] in legal practice' is considerably broader than that of 'acting as a solicitor'. And that is borne out by the implication which derives from s 2.2.2(3) of the Legal Profession Act 2004 (Vic) that, but for its provisions, such an appearance could amount to engaging in legal practice within the meaning of s 2.2.2(2)(f).
2. Moreover, even if such an appearance did not rise to the level of engaging in legal practice, that would not avail the appellant in this case. It remains that a lay advocate has no right of audience other than is conferred by statute or in the exercise of the court's discretion. Accordingly, whether or not an appearance by an occasional lay advocate amounts to carrying on practice, that kind of lay advocate's entitlement to appear remains at the court's discretion.[9]

22 In this case, Mr Giza does not just seek to represent Mr Vella at oral hearings. He has purported to act as, in effect, his solicitor in the proceeding, notwithstanding he is not entitled to do so. Both forms of representation are prohibited by the Legal Profession Act.

23 Third, I do not accept that, as a matter of discretion, Lansdowne AsJ ought to have permitted Mr Giza to represent Mr Vella in the proceeding generally, or to appear on his behalf at the hearings. There was no evidence before Lansdowne AsJ as to Mr Vella's inability to represent himself on the basis of illiteracy and lack of understanding of legal concepts. There was only assertion by Mr Giza from the Bar table.

24 On the hearing of the appeal before me, Mr Giza filed (but did not serve) an affidavit sworn by Mr Vella the previous day. In that affidavit, Mr Vella confirmed that he had authorised Mr Giza to act on his behalf to commence the appeal from the Magistrates' Court decision, and the appeal from Lansdowne AsJ, 'as he finds it fit'.[10] On the question of his inability to represent himself, Mr Vella deposed that he 'cannot read or write and [has] problems in comprehending legal language'[11] and that he 'cannot agree or disagree with what has been read to [him] by [Mr Giza]' from an exhibit to the respondent's affidavit material.[12] Moreover, during the course of argument, Mr Giza confirmed that it was his position, on behalf of Mr Vella, that Mr Vella is illiterate, not able to understand legal language and incapable of representing himself.

25 In these circumstances, the evidence and submissions put forward to support Mr Giza's right to represent Mr Vella would, if accepted by the Court, demonstrate that Mr Vella is a 'handicapped person' within the meaning of r 15.01 of the Supreme Court (General Civil Procedure) Rules 2005, which provides:

handicapped person means a person who is incapable by reason of injury, disease, senility, illness or physical or mental infirmity of managing his or her affairs in relation to the proceeding.

26 On Mr Vella's own case, put through his attorney Mr Giza, he suffers from illiteracy and inability to understand legal language such that he is incapable of managing his affairs in relation to the proceeding. If that case is accepted, Mr Vella falls within the definition of 'handicapped person'. Accordingly, by r 15.02, he would be unable to commence a proceeding in this Court (such as his appeal from the Magistrates' Court) except by a litigation guardian who must act by a solicitor.

27 Moreover, having heard Mr Giza endeavour to represent Mr Vella's interests, I am well satisfied that he is an inappropriate person to represent Mr Vella at any hearing in the proceeding. He lacks any proper understanding of the legal process or the real issues in Mr Vella's case. While polite, he provided no useful assistance to the Court on the hearing of the appeal. The continuation of his representation of Mr Vella, however limited, would likely cause significant waste of Court time and resources, as I am not satisfied that Mr Giza would conduct Mr Vella's case in an orderly or responsible fashion. Further, allowing Mr Giza to represent Mr Vella would likely add to the respondent's costs of the proceeding. The amount in dispute does not justify that any unnecessary costs be incurred. The associate justice was right to refuse to exercise her discretion to grant Mr Giza leave to represent Mr Vella.

28 Fourth, I reject Mr Giza's bias ground of appeal. I have read the transcript of proceedings before Lansdowne AsJ and there is no basis for such an allegation. It should never have been put forward.

29 Fifth, I am not satisfied that Lansdowne AsJ did not provide Mr Giza with any assistance to which he was entitled. The objection to Mr Giza acting was properly made, during the course of a day on which Lansdowne AsJ had to consider a number of other matters. She dealt with the issue in an efficient way and reached the right result. Mr Giza was not seeking the assistance of the Court. He presented to the Court as a person who believed he had an absolute entitlement to represent Mr Vella as his attorney. He was wrong.

30 For the above reasons, the appeal will be dismissed. The appropriate course is for Mr Vella to appear in person at the next interlocutory hearing in his appeal and, if he wishes, to seek to be assisted by an appropriate McKenzie friend. Given his familiarity with the issues, Mr Giza may be the appropriate person to fulfil that role. It should be noted, however, that a 'McKenzie friend' does not have the right of audience. In Apostolou v Commissioner of State Revenue, Mandie J summarised the role of a McKenzie friend by reference to authority, in the following terms:

Any person, whether he be a professional man or not, may attend as a friend of either party, may take notes, may quietly make suggestions, and give advice; but no-one can demand to take part in the proceedings as an advocate, contrary to the regulations of the court as settled by the discretion of the justices.[13]

31 As can be seen, the role of a McKenzie friend includes taking notes and to 'quietly make suggestions and give advice', but not 'to take part in the proceedings as an advocate'.

32 Alternatively, an application should be made for the appointment of a litigation guardian to prosecute Mr Vella's appeal by a solicitor.

[1] [1991] 3 All ER 935, 947.

[2] Transcript before Lansdowne AsJ, pp8-9.

[3] Oswal v Carson [2013] VSC 355.

[5] [2013] VSC 340 ('Waddington').

[6] Ibid [30], referring to Spina v Permanent Custodians Ltd [2008] NSWSC 561, [101] (emphasis added).

[9] [2014] VSCA 12, [17]-[18].

[10] Affidavit of Joseph Vella sworn 9 September 2014, exhibit JV1.

[13] [2008] VSC 332, [20] citing Collier v Hicks [1831] EngR 686; (1831) 2 B. & Ad. 663, 669 per Lord Tenterden CJ cited in McKenzie v McKenzie [1971] P 33, 38.