23 Cristovao informed the Court that he was not in a position to present his case in a proper manner. He had language difficulties. He was a lay person, a butcher by trade, and did not feel equipped to conduct the proceedings himself. He had no money to engage a lawyer and no-one other than De Alwis could assist him. He indicated that he was allowed a McKenzie friend, namely De Alwis in the Family Court.
24 He stated that he was expecting De Alwis to address the Court on the law. This was confirmed by him during his submissions.
25 Cristovao relied upon an affidavit he signed on 15 May 2006 and two affidavits of Vijitha Gamini De Alwis signed on 17 May 2006 and 18 May 2006. I also heard oral submissions on three occasions. De Alwis spoke briefly on 18 May 2006.
26 It is necessary for courts to be extremely careful in allowing persons not entitled to engage in legal practice to address legal issues on behalf of another. A person not entitled to practice law may operate without professional constraints and obligations. Indeed, there may be undisclosed motives for wanting to appear. This has to be balanced with a Court affording an unrepresented party all reasonable facilities to exercise his right of audience.
27 Cristovao's command of the English language was imperfect but he was capable of making his points. Despite this it may be a case where a Mackenzie friend could be of assistance. However, it goes further than Cristovao having an open ended choice as to who is to fulfil that role. If the person is unlikely to advance the litigant's case in any meaningful or useful way but rather will lose track and draw out the proceedings unnecessarily the overall benefit is questionable.
28 I have considered a number of matters. De Alwis is a legal practitioner currently suspended from practice. I gain the impression from Cristovao and affidavits of De Alwis that he would want to address legal issues and not simply sit quietly and take notes or give advice. By his own statement he is suffering very poor health. Again, I form the view, from his own statement and affidavits that he is emotionally involved in the issues and as such has some interest in the outcome. He is unlikely to assist the Court in any material way. Indeed, his presence may be obstructive.
29 This is not such a "rare and exceptional" case in which the interests of justice require the Court to exercise its discretion in favour of allowing Cristovao to be represented by De Alwis in the manner sought. (Damjanovic v Maley [2002] NSWCA 230; (2002) 55 NSWLR 149, 151, 162-164).
30 The current matter for which it is sought that De Alwis act as a McKenzie friend is an interlocutory application for summary judgment. Cristovao has already filed his written submissions and the matter has been listed for a special appointment on 24 May 2006. To accommodate the matter the listing is of one day duration.
31 The Court is acutely aware of the difficulties facing any self-represented litigant. Guidelines have been enunciated in different jurisdictions, e.g. In the Marriage of F [2001] FamCA 348; (2001) 161 FLR 189 at 226-7, which may be of general applicability. These guidelines refer, in the main, to the trial process itself. However, common sense suggests that in any application before a court, there needs to be an awareness of the difficulties faced by a self-represented litigant and appropriate guidance and latitude given, although not at the expense of a legally represented litigant.
32 The application of Cristovao insofar as it relates to the appointment of De Alwis as a McKenzie friend is dismissed. If however, this matter is not resolved at the summary judgment stage and another more appropriate person is available to be appointed a McKenzie friend a further application can be made at that time.