Practice and procedure - Interlocutory proceedings - Request to cross-examine

District Court of Western Australia Act 1969, s 39

Legal Practice Act 2003, s 123 & s 203

Damjanovic v Maley [2002] NSWCA 230; (2002) 55 NSWLR 149, 151, 162-164

Freehill Hollingdale & Page v Bandwill Pty Ltd & Anor [2000] WASCA 150

In the Marriage of F [2001] FamCA 348; (2001) 161 FLR 189

McKenzie v McKenzie [1970] 3 All ER 1034

Schagen v R (1993) 8 WAR 410

West Australian Construction Industry Redundancy Fund Ltd v Ortin & Ors [2002] WASC 185

Flowtech Engineering Pty Ltd v VA Tech Australia Pty Ltd [2005] WADC 68

In the matter of Whitemark Pty Ltd (1992) 7 WAR 54

Trinity Enterprises Pty Ltd v Drum Services (WA) Pty Ltd (1992) 7 WAR 587

1 CRISFORD DCJ: The plaintiff ("Cristovao") appeared before this Court as a self-represented litigant. A notice of motion filed 2 May 2006 sought, relevantly, an order:

"1. That Mr Viji De Alwis be granted leave to appear as amicus curiae to place my case before court in the interest of Justice and that the Court may dispense quality Justice (sic)."

2 After hearing argument on the return of the notice of motion on 11 May 2006 the matter was adjourned in order that a written judgment be prepared. In the meantime a further notice of motion was filed on 15 May 2006 seeking orders "under O 36, r 2(3) of the Supreme Court Rules". Cristovao sought that three solicitors be produced for cross-examination in relation to the issues raised in the notice of motion filed 2 May 2006.

3 David Gordon Dundas ("Dundas"), a solicitor in the firm of McCallum Donovan Sweeney had sworn an affidavit in opposition to the notice of motion dated 2 May 2006. Annexed to that affidavit was correspondence from Mr Bruce Goetze of Minter Ellison to Mr Ashley Macknay of McCallum Donovan Sweeney. Cristovao sought that all three be produced for cross-examination.

4 Order 36, r 2(3) is in the following terms:

"3. Subject to these rules, evidence may be given by affidavit upon any originating summons, originating motion or petition, and on any application made by motion or summons, but the Court may order the attendance for cross-examination of the person making any such affidavit, and if such person fails to attend his affidavit shall not be used in evidence without the leave of the Court."

5 The discretion to order the attendance for cross-examination is in general terms. This is to be contrasted to the more specific discretion found in O 14, r 4(4)(b) in the context of a plaintiff's application for summary judgment. Order 36, r 2(3) is not qualified by any "special circumstance" requirement.

6 McKechnie J in West Australian Construction Industry Redundancy Fund Ltd v Ortin & Ors [2002] WASC 185 at [7]- [9] set out as follows:

"(7) (Orders for cross-examination) are likely to be unusual. I am not sure that I agree with Cross LJ in Comet Products UK Ltd v Hawkex Plastics Ltd [1971] 2 QB 67 at 77 where he states:

'It is, I think, only in a very exceptional case that a judge ought to refuse an application to cross-examine a deponent on his affidavit.'

(8) Nor would I necessarily agree that a court should be slow to allow cross-examination on an affidavit in interlocutory proceedings as to do so cannot only prolong but cloud the issues to be resolved in such proceedings; see Master Adams: In the matter of Whitemark Pty Ltd (1992) 7 WAR 54.

(9) Rather, I think the proper view is that cross-examination on an affidavit should be permitted whenever the interests of justice require. Delay and clouding the issues are aspects of the interests of justice, not determinative of them."

7 Here only one of the persons sought to be produced for cross-examination is the deponent of an affidavit. The other two persons are the recipient of and writer of a letter attached to the affidavit. The letter details the history and status of De Alwis in relation to the Legal Practitioners Complaints Committee.

8 The relevant principles were also considered by the Full Court in Freehill Hollingdale & Page v Bandwill Pty Ltd & Anor [2000] WASCA 150. In a joint judgment the Court (Owen J, Steytler J and Miller J) made the following comment:

"There is ample authority for the proposition that the discretion to permit cross-examination in interlocutory applications will be sparingly exercised: Sullivan v Henderson (1973) 1 WLR 333 and In the matter of Whitemark Pty Ltd (1992) 7 WAR 54 at 56. This is even more so where there is a likelihood that cross-examination will cover broad issues raised in the action: Scanlan v American Cigarette Co (Overseas) Pty Ltd (No 1) [1987] VicRp 21; [1987] VR 261 at 274."

9 Having considered the authorities I have determined that this is not an appropriate matter to involve any cross-examination of the deponent of the affidavit and any other persons even if there was provision in the Rules to accommodate such cross-examination.

10 It is common ground that De Alwis is a legal practitioner currently suspended from practice. The background to this and the progress of his matter vis a vis the Legal Practitioners Complaints Committee is unlikely to assist the Court in its decision about the position of a McKenzie friend. It is likely to cause delay and to substantially cloud the issues. Having heard submissions from Cristovao on 18 May 2006 in this respect I have also formed the view that any such cross-examination would be likely to form a platform for De Alwis to agitate his own matters.

11 In any event I find I am able to determine the application to have De Alwis appear as amicus curiae without recourse to any affidavit material filed by the defendants, in particular to the affidavits of Dundas of 9 May, 9 February and 8 February 2006.

12 There resides in the Court a discretion in relation to the granting of leave for a party or parties to be represented as amicus curiae. In Seaman "Civil Procedure in Western Australia", par 18.6.22:

"The Court has the right to allow counsel to appear as a friend of the Court, to act as advisor to the Court and make suggestions as to matters appearing upon the record or in matters of practice but he has no rights in the matter, can not plead or lead evidence or move the Court and can not prosecute an appeal; Corporate Affairs Commission v Bradley (1974) 1 NSWLR 391 at 399. It will permit the appearance if good cause is shown and the Court thinks it proper; United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 522 at 536".

13 The discretion is usually exercised in circumstances where the outcome may affect the wider community or persons or groups of persons other than the parties immediately before a court.

14 I am of the view that the appointment of an amicus curiae in relation to the matter I am to determine, namely an application for summary judgment, is not appropriate in the circumstances of this particular case.

15 It appears that the appropriate order to seek is to have what has become known as a McKenzie friend appointed. I will deal with the application on that basis.

16 I am therefore required to consider whether Cristovao, as a self-represented litigant, has a requirement for a McKenzie friend and, if so, whether Mr Viji De Alwis ("De Alwis") is an appropriate person to fill that position.

17 Section 39(1) of the District Court of Western Australia Act 1969 provides that:

"A party to an action, cause or other proceeding may appear before the Court in person or by a certified practitioner (within the meaning of the Legal Practice Act 2003) or by any person allowed by special leave of the presiding District Court judge, in any case."

18 A McKenzie friend assists a party before the Court by, for example, making notes and giving suggestions or advice to the litigant in person but does not fulfil the role of an advocate or representative: McKenzie v McKenzie [1970] 3 All ER 1034.

19 It is only in rare and exceptional circumstances that a McKenzie friend is permitted to address the Court or otherwise take an active part in proceedings: Schagen v R (1993) 8 WAR 410 at 412 per Malcolm CJ.

20 Section 123 of the Legal Practice Act 2003 provides, relevantly, that:

"(1) A person must not engage in legal practice unless the person is a certified practitioner.

(3) Nothing in subsection (1) is to be construed as preventing a person from-

(c) appearing for a person before a court, or providing advice or other services, if that appearance or the provision of that advice or service is authorised by written law."

21 The public interest and the effective disposal of cases is best achieved by the use of qualified lawyers who are skilled in advocacy, experienced, and subject to a disciplinary and ethical code.

22 Section 203 of the Legal Practice Act 2003 provides:

"(1) A legal practitioner...suspended from practice is not entitled -

(a) to engage in legal practice until...the period of suspension has elapsed, ...;

(b) without limiting paragraph (a) to represent any person in a statutory tribunal or a court."

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.