Applicant/Appellant v Respondent

Supreme Court of Victoria|2008-09-08|Before: Mandie J

PRACTICE AND PROCEDURE - appeal from Master - whether leave should be granted for lay person to represent appellant - McKenzie friend - scandalous and irrelevant affidavit taken from file - whether date should be fixed for hearing of appeal

1 An appeal has been brought from an order of Master Daly made 30 May 2008 in the circumstances set out below. The present reasons for judgment deal only with the interlocutory directions that ought to be made in relation to that appeal.

2 By originating motion filed 26 March 2008 the applicant, Vasiliki Apostolou, ("the appellant"), sought leave to appeal from a decision of the Victorian Civil and Administrative Tribunal ("VCAT") constituted by Deputy President McNamara ("Tribunal") in relation to duty payable upon two transfers of land under the Duties Act 2000 (Vic).

3 The grounds stated in the originating motion may be summarised as being that the Tribunal erred in law in deciding that the two transfers of land were dutiable and erred in affirming the decision of the State Revenue Office.

4 The originating motion and the supporting documents were endorsed as prepared by Mr A Vasiliou who apparently is the husband of the appellant. Mr Vasiliou swore an affidavit on 25 March 2008 in support of the application for leave to appeal. He deposed that VA Corporation of Aust Pty Ltd ("the Company") was a trustee of the VA Unit Trust under a deed of trust made 16 May 1987. It appears that the appellant's contention to the respondent and before the Tribunal was that the transfers of land which were from the Company to the appellant were simply occasioned by a change of trustee whereas the respondent considered, and the Tribunal found, that this was not so and duty was assessed accordingly.

5 After some adjournments the application for leave to appeal came on before Master Daly on 30 May 2008. The Master dismissed the application for leave with costs. The order records that the appellant appeared in person and in OTHER MATTERS it is stated:

"The application for leave to appeal is dismissed on the basis that there was no arguable error of law which could be the subject of an appeal. The Appellant is seeking to dispute the factual findings made by the Tribunal. The factual findings were open to the Tribunal having regard to the evidence before it."

6 It was from this order that the appellant appealed to a Judge in the Practice Court by notice of appeal filed 3 June 2008.

7 On 24 June 2008 the appeal was adjourned by Cavanough J, it being noted in the order that Mr Vasiliou, the appellant's husband, appeared as her "McKenzie friend".

8 On 1 July 2008, the appeal was further adjourned, Mr Vasiliou again appearing as the appellant's McKenzie friend. The appellant was also granted special leave to file a further affidavit exhibiting the documents that had been filed in VCAT in respect of the proceeding appealed from.

9 A further affidavit was sworn by Mr Vasiliou and filed on 2 July 2008 ("the further affidavit"). Paragraphs 1 to 9 of the further affidavit deal with the hearing before the Tribunal. Paragraphs 10 to 28 of the further affidavit together with one following unnumbered paragraph contain additional material. A final paragraph of the further affidavit exhibits the folder of documents that was before VCAT. The additional material in the further affidavit, in summary, asserts, without evidence, that the Tribunal was somehow influenced in reaching a "poisoned" "illegal" and "evil" decision, that somehow the State government, the Premier, and the Attorney-General were implicated in the making of this "corrupt" decision.

10 On 10 July 2008 the matter came before Hansen J in the Practice Court and it was ordered that the proceeding and appeal be referred to the Judge in charge of Victorian Taxation Appeals for hearing and determination or such other order as might be made. Again Mr Vasiliou appeared as the appellant's McKenzie friend on this occasion.

11 On 13 August 2008 the parties were notified by my Associate, at my direction, that the matter would be listed for directions before me on 29 August 2008 at which time the following matters would be considered:

(a) Whether Mr A Vasiliou should have leave to continue to appear and/or be heard as McKenzie friend for the appellant

(b) Whether the further affidavit of Mr Vasiliou should be taken off the file of the Supreme Court on the grounds that it contains scandalous and/or irrelevant matter

12 As a result, the matter came before me for directions on 29 August 2008. The appellant did not appear in person, but Mr Vasiliou was permitted to appear on her behalf. Mr R J McInnes appeared as solicitor for the respondent.

13 Mr McInnes said that the respondent neither consented to nor opposed the appearance of Mr Vasiliou on behalf of the appellant. However Mr McInnes pointed out that in a related proceeding in the Federal Court, concerning the sale of the property the subject of these transfers by a mortgagee, the appellant had legal representation. He added that it might be thought that it was in the best interests of the appellant that she be legally advised in the present matter.

14 In relation to Mr Vasiliou's further affidavit, Mr McInnes said that paras 1 to 9 and the last paragraph were relevant but the balance of the affidavit was irrelevant and scandalous. He submitted that all but paras 1 to 9 and the last paragraph should be struck out.

15 Mr Vasiliou said that he had been running the case and representing his wife from the beginning. He said that it would be inappropriate to bring other parties into the matter who would have no understanding of it. He said that the case was about a trust which he had set up and that the Tribunal had ruled that no such trust existed. He said that he was the real owner of the property and the real person behind the case.

16 Mr Vasiliou repeated some of the same allegations as to corruption that are made in his further affidavit. Mr Vasiliou said that the whole matter should accordingly be transferred to the Federal Court. I informed him that this could not be achieved because the Federal Court could not deal with an appeal from VCAT.

17 Mr Vasiliou said that the transfers in respect of which duty had been imposed were useless unless the Federal Court set aside the sale by the mortgagee and that he had been told by the Federal Court that it was most unlikely that such sale could or would be set aside. Mr Vasiliou said that if that was right, no duty was attracted. However, Mr Vasiliou said that he was concerned at the statement made "to the world" by the Tribunal that the VA Unit Trust did not exist. He could not abandon the appeal because it left a doubt as to who was the real owner of the property. It was a complicated matter. He knew everything because he was the actual settlor of the trust.

18 In the light of Mr Vasiliou's submissions, I asked Mr McInnes what the relationship was between the Federal Court proceedings and the imposition of duty on the transfers. Mr McInnes confirmed that, if the sale of the property by the mortgagee was not set aside, it was likely that the duty would be reassessed at nil because the transfers would therefore have been ineffectual.

19 I will deal first with the question whether Mr Vasiliou should be permitted to appear for the appellant in this matter.

20 It should be recalled that the role of a "McKenzie friend" has been described as follows:[1]

"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."

21 As an incident of controlling its own proceedings, a court has a discretion, in the interests of justice, to permit a lay person to appear on behalf of a party.[2] The relevant factors to be taken into account will vary from case to case. One of the important factors in most cases, if not every case, is that the conduct of a case by a lay person is not under the disciplinary control of the court (or other relevant professional and disciplinary bodies). Another important factor, in all but the simplest case, is that the court is unlikely to receive the skilled and learned assistance that it may expect from a professionally qualified representative. A further factor, often of importance, is that the represented party's interests may not be well served, indeed may be ill-served, by a lay representative. It seems to me that all of the foregoing factors are relevant in the present case.

22 In addition, it appears that Mr Vasiliou is the chief witness and protagonist and for that reason alone ill-suited to provide objective representation for the appellant. This is confirmed by what he said to the court and further illustrated by the colourful and scandalous allegations contained in his further affidavit.

23 Further it would seem that the appellant has been able to obtain legal representation in the Federal Court and it would thus appear that legal assistance may be available.

24 I am therefore inclined to conclude that leave should not be granted to Mr Vasiliou to continue to represent the appellant in this proceeding. However, for reasons which appear below, it is unnecessary to finally determine that question.

25 In relation to the further affidavit, Rule 27.07 provides that, where a document for use in the Court contains scandalous, irrelevant or otherwise oppressive matter, the Court may order that such matter be struck out or, if the document has been filed, that it be taken off the file. I am satisfied that the further affidavit, apart from paras 1 to 9 and the final paragraph, contains scandalous and irrelevant matter. In my view, the affidavit should be taken off the file and I will so order. The only legitimate purpose for the affidavit was in order to exhibit the VCAT folder and this was the purpose for which special leave was granted. If and when the matter proceeds, I would permit the appellant to tender that folder. There is thus no prejudice caused to the appellant by ordering that the affidavit be taken off the file.

26 The question arises whether a date should be fixed for the hearing of the appeal from the Master's order. In the circumstances, I am satisfied that the appeal need not be determined until the question of the mortgagee's sale has been resolved. It turned out to be common ground, I think, that this appeal from the Master's refusal of leave to appeal against the Tribunal's order was likely to be pointless unless the mortgagee's sale was set aside because the respondent would not otherwise be seeking to recover duty and would inevitably have to re-assess the duty at nil. So far as the Tribunal's finding that "no trust existed" (as Mr Vasiliou put it) is concerned, that was a finding (if it was a finding) made on the evidence before the Tribunal and made only for the purposes of the case before the Tribunal - it has no other legal impact.

This proceeding remain under the control of the Judge in charge of the Taxation Appeals List.
The appeal from the order of Master Daly dated 30 May 2008 is adjourned sine die.
The affidavit of Andrew Vasiliou sworn 2 July 2008 is to be taken off the file and returned to the appellant.
Costs reserved.

[1] See 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.

[2] See Damjanovic v Maley [2002] NSWCA 230; (2003) 195 ALR 256.

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Judgment (36 paragraphs)

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