Cao v Liu

The application before me today 12Mr Goldsmith, on behalf of the plaintiff, has drawn my attention to the difficulties of proceeding in circumstances where not only is Mr Yu seeking to appear on behalf of his wife, but his wife is not in court today. 13Mr Yu tendered a medical certificate from his wife's general practitioner (Exhibit A), but all that this medical certificate says is that the defendant is not well enough to attend work today for some unspecified reason. Mr Yu stated that his wife suffered from migraine and this meant that she would be incapable of appearing in court at all to conduct these proceedings. However, there is no medical evidence to this effect. 14In considering whether or not I should grant leave to Mr Yu to appear for the defendant in these proceedings, I have been guided by decisions of the New South Wales Court of Appeal, notably Damjanovic v Maley (2002) 55 NSWLR 149; (2002) 195 ALR 256; [2002] NSWCA 230, as well as recent Supreme Court decisions such as JP Morgan Trust Australia Ltd v Hammond [2012] NSWSC 213, an authority relied upon by the plaintiff. These cases deal with the circumstances in which a person may represent a party in much the same role as a member of the legal profession would, or where an unqualified person is permitted to fulfil a role sometimes referred to as that of a "McKenzie friend" (McKenzie v McKenzie [1971] P 33; [1970] 3 All ER 1034; [1970] 3 WLR 472). 15In Damjanovic v Maley, supra, a person describing herself as a "family friend" sought to appear on behalf of the plaintiff in proceedings on the basis that the plaintiff's command of English was poor and he had a mistrust of lawyers. The plaintiff lost the case and appealed. One of the grounds of appeal was refusal to permit the "family friend" to appear on his behalf. (The "family friend" also sought to appear in the appeal, but was refused leave to appear.) 16Stein JA, with whom Mason P and Sheller JA agreed, dismissed both the complaint about failure to permit the appointment of an unqualified representative and the appeal generally. At [37]-[68] Stein JA reviewed the cases and at [69] drew a series of principles from those cases. The relevant factors for the court to take into account are as follows: (a)The complexity of the case - While the defence in these proceedings currently pleads a denial of publication, to describe defamation cases as anything other than complex would be erroneous. This is a relevant factor. (b)The genuine difficulties of the unrepresented parties - This includes language difficulties, emergencies, health problems and the like. In Damjanovic v Maley, supra, poor command of the English language was not considered a suitable reason to permit a representative who was unqualified to appear. Financial hardship may be reason for not retaining legal representation. However, Mr Yu told me he has "not yet" consulted any lawyer. (c)The unavailability of disciplinary measures and the question of discharge of the duty to the court by lay advocates - As Stein JA notes at [74], almost every case mentions these matters as protection for a client where a qualified lawyer represents a party, and as being absent where an unqualified lay advocate appears. This is a significant issue in a case such as the present. (d)The protection of the client and the opponent - Lay advocates are unqualified, unaccredited and uninsured, which means that the defendant is herself at risk. In addition, it may be that Mr Yu may be a witness. His ability to give objective advice when he is potentially a witness would be an issue of concern. (e)Lay advocates in inferior courts and tribunals - This is a factor in favour of the application. Lay advocates are more likely to seek to appear in the District and Local Courts. (f)The interests of justice - Stein JA noted in Damjanovic v Maley, supra, at [84] that the adversary system assumes that the case will be presented to courts by "skilled professionals". To the extent to which that assumption breaks down, so does the system. 17The presence of litigants in person in defamation actions, both as plaintiffs and defendants, is an increasingly common feature of defamation actions in Australia. The extent to which unrepresented litigants appear in defamation can be seen from the table set out at [60,590] Tobin & Sexton, Australian Defamation Law & Practice (LexisNexis Australia); litigants in person account for nearly a quarter of the defamation claims as plaintiffs, and also as high a proportion as defendants. In Ross v Hallam [2011] QCA 92 the Queensland Court of Appeal, in setting aside a judgment entered summarily against the defendant, noted at [13] the difficulty of ensuring fairness to all parties with the complexities of defamation law where one party is self-represented. 18Such problems are compounded where an unqualified person seeks to represent someone who would otherwise be a litigant in person. These include the nature and extent to which the person appearing should be entitled to speak on behalf of the unrepresented party: Markisic v AEA Ethnic Publishers Pty Ltd [2006] NSWCA 378 at [49]-[53]. 19In JP Morgan Trust Australia Ltd v Hammond, supra, the defendant's husband sought leave to appear in proceedings relating to mortgage default and seeking an order for possession of a property. He was not a party to those proceedings. As has been the case in the application before me, the defendant, Ms Hammond, did not attend the court on any occasion when the matter was listed. Her husband appeared, by leave, on a number of occasions both in the Supreme Court and the Court of Appeal. As was also the case in these proceedings, an objection was taken to his appearing on behalf of the defendant at the hearing of proceedings. When the matter was allocated to Johnson J, his Honour considered it appropriate to list the matter in advance of the hearing so that this problem could be addressed (at [10]), in much the same way I have done here. Ms Hammond did not appear, and her husband told the court she was "unwell and indisposed" (at [11]), providing a certificate from a general practitioner. 20After reviewing authorities such as Teese v State Bank of New South Wales [2002] NSWCA 219, Damjanovic v Maley, supra, and the application of these principles in a series of decisions in the Supreme Court, Johnson J stated that an order for representation by an unqualified person is "exceptional order, for which good grounds must be demonstrated" (at [20]). His Honour noted objections taken by counsel for the plaintiff, many similar to those raised by Mr Goldsmith before me today. 21Johnson J expressed a number of concerns similar to those I have raised with Mr Yu this morning. This included arguments on the merits of the case advanced by the defendant's husband which showed a lack of understanding of legal principles (at [36]), the potential for conflict of interest (at [36]) and concerns of the kind set out in Damjanovic v Maley, supra. 22Litigants in person have the right to appear in their own interests. That is Ms Liu's right here. There is, in addition, a right to be represented by a legal practitioner, but even a solicitor may be precluded from appearing in circumstances where, for example, there is a potential conflict of interest (see Chinese Australian Services Society Co-operative Ltd v Sham-Ho [2011] NSWSC 829). 23Taking all of the above factors into account, leave should not be granted for Mr Yu to appear as a lay advocate for the defendant at the hearing, and I decline the application. 24Mr Yu has told me that he would like to have an opportunity to consult a lawyer, but that he is unacquainted with any solicitors with expertise in the field of defamation. I have accordingly referred him to the NSW Bar Association's pro bono assistance scheme. I have made an order for mediation in these proceedings; I have indicated both to Mr Goldsmith and Mr Yu that these are matters which can be pursued, jointly, through the good offices of the NSW Bar Association. 25These proceedings have been stood over for further directions on Wednesday 13 March 2013 at 9:00am. Costs of today are reserved.

Orders (1)The plaintiff is to file an amended statement of claim particularising identification, extrinsic facts and the persons to whom those extrinsic facts were known, as well as details of the publications set out in paragraph 3 of the statement of claim, in 14 days. (2)The plaintiff is to serve statements (limited to publication only) in 14 days. (3)Mr George Yu's application to appear on behalf of the defendant (his wife) is refused. (4)Matter stood over for further directions to Wednesday 13 March 2013 at 9:00am. (5)The parties are directed to approach the NSW Bar Association to enquire about mediation (Ms Liu may require legal advice regarding representation as well).

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 February 2013