What do the authorities say?
37 It is useful to survey some of the authorities for guidance in the exercise of the discretion. The Full Court of Victoria discussed the issue of the court permitting audience to non-lawyers in Hubbard Association of Scientologists v Anderson [1972] VR 340. The judgment noted that the court could, as an incident of controlling its own proceedings, allow itself to be addressed 'in a proper case' by any person it considers appropriate, McGrath v Dobie (1890) 16 VLR 646 and O'Toole v Scott [1965] AC 939 at 952.
38 In O'Toole the Privy Council said that the discretion could be exercised on general grounds common to many cases or on special grounds confined to the particular case. It should not be confined to cases of strict necessity.
39 The Full Court of Victoria held in Hubbard that although too rigid a limitation should not be imposed on the discretion, 'it has long been regarded in the higher courts as proper to refuse to exercise the discretion in favour of allowing the appearance of non-qualified persons … when the assistance of qualified persons is available to give the courts help in the administration of justice'.
40 As to the contention that the court should abrogate its practice of allowing a corporation to appear through an unqualified agent, the court said (at 343):
These contentions raise matters of policy as to the appropriate procedure for the administration of justice. If the contentions were accepted, they could produce far-reaching consequences. They would open the way to a vast field of litigation, associated with companies, being conducted through untrained and unqualified advocates. They would not merely encroach on the established practice, but they would destroy that practice, and perhaps, if extended further to include agents for litigants who are natural persons, destroy the whole system of the administration of justice in these courts.
41 The court also referred to considerations adverted to by the House of Lords in Tritonia Ltd v Equity and Law Life Assurance Society [1943] AC 584, which drew attention to the importance of lawyers obeying the rules of their profession and being subject to a disciplinary code.
42 In R v E J Smith (1982) 2 NSWLR 608 the Court of Criminal Appeal commented on the dangers in permitting a McKenzie friend in a criminal trial. Street CJ drew attention to the difficulties for a court which had no direct access 'in a disciplinary and controlling sense' to a lay person. At 614 the Chief Justice said that:
- a person who may well, for one reason or another, be concerned to promote the case of the person whom he is advising by fair means or foul, by legal means or illegal, or by any device whatever, a person immune from disciplinary or effective control by the trial judge - is in my view fraught with the prospect of causing serious miscarriages in the orderly and regular conduct of criminal trials in this State.
43 The New Zealand Court of Appeal in Re G J Mannix Ltd [1984] 1 NZLR 309 examined the 'right' of a layman to represent a company in litigation.
44 Cooke J, as he then was, said that the rule that a company cannot appear to conduct a case, except by counsel or a solicitor, was as strongly demanded today [1984] as it ever was, 'if not more strongly, having regard to the increasing complexity of litigation'. His Honour also mentioned the possibility of media publicity as tending to increase the importance of responsibility in advocacy. His Honour reinforced the importance of advocates observing the rules of their profession and being subject to disciplinary codes (Tritonia, Hubbard and Re Education Pty Ltd and the Companies Act (1963) NSWR 1340).
45 Cooke J touched upon the argument that the rule achieves no useful purpose other than to protect the monopoly of lawyers. He quoted Hardie Boys J in Mihaka v Police [1981] 1 NZLR 54 at 58:
The denial of recognition to other than suitably qualified persons should not be regarded as protection of any privilege or monopoly. It surely gives effect to the fact that an unqualified and inexperienced person may do more harm than good to the person he assists: if only because of his ignorance of the law which may support that person's cause. In this age of complexity in the law and specialisation in its practice, this reason is perhaps more cogent that it has ever been.
46 His Honour noted what the Privy Council had stated in O'Toole v Scott and accepted that the discretion applied to superior courts, as well as inferior courts, although noting that Lord Pearson considered that the discretion would be exercised with 'rather more reserve' in the former.
47 In examining what factors might be relevant to the exercise of the discretion, Cooke J said (at 314):
In general, and without attempting to work out hard-and-fast rules, discretionary audience should be regarded, in my opinion, as a reserve or occasional expedient, for use primarily in emergency situations when counsel is not available or in straightforward matters where the assistance of counsel is not needed by the Court or where it would be unduly technical or burdensome to insist on counsel. Especially in minor matters, cost-saving could also be a relevant factor. A "one-man" company might be allowed to be represented by its owner if the Judge saw fit in a particular case. But it could not be right, for instance, to issue some sort of tacit continuing or general licence to an unqualified agent to appear in winding up or any other class of proceedings.
48 McMullin J considered as factors relevant to the discretion, the nature of the litigation, the complexities of the case, the extent of the dispute and the points upon which audience is sought. But he added that the grant of lay representation is likely to be the exception rather than the rule.
49 The third judge of appeal, Somers J emphasised the overriding duty to the court of barristers, and their duty also to the public and to the standards of the profession. Overall, while the discretion existed, its exercise to grant leave would likely be rare and the 'circumstances exceptional or at least unusual, and their content modest'.
50 In Abse v Smith [1986] 1 QB 536 the English Court of Appeal considered the rights of audience of solicitors in the High Court. In considering the public interest Sir John Donaldson MR referred to the requirement of absolute probity. His Lordship said (at 545 - 546):
The public interest requires that the courts shall be able to have absolute trust in the advocates who appear before them. The only interest and duty of the judge is to seek to do justice in accordance with the law. The interest of the parties is to seek a favourable decision and their duty is limited to complying with the rules of the court, giving truthful testimony and refraining from taking positive steps to deceive the court. The interest and duty of the advocate is much more complex, because it involves divided loyalties. He wishes to promote his client's interests and it is his duty to do so by all legitimate means. But he also has an interest in the proper administration of justice, to which his profession is dedicated, and he owes a duty to the court to assist in ensuring that this is achieved. The potential for conflict between these interests and duties is very considerable, yet the public interest in the administration of justice requires that they be resolved in accordance with established professional rules and conventions and that the judges shall be in a position to assume that they are being so resolved. There is thus an overriding public interest in the maintenance amongst advocates not only of a general standard of probity, but of a high professional standard, involving a skilled appreciation of how conflicts of duty are to be resolved.
51 In examining the authorities the Master of the Rolls referred to the recognition of emergency situations in which a court would have to permit others to plead and practice before it in order to prevent a failure in the administration of justice.
52 May LJ stressed in his opinion that it was essential that those who acted as advocates in the courts should be members of a profession subject to a strict code of discipline, thoroughly trained and practised in the skills of advocacy and in the proper and expeditious conduct of litigation [555 G].
53 With regard to what was said by May LJ, Part 1 rule 3 of the Supreme Court Rules may be noted. Subrule 1 provides that the overriding purpose of the rules is to facilitate the just, quick and cheap resolution of litigation. Subrule 3 provides that a party is under a duty to assist the court in furthering the overriding purpose and to participate in the processes of the court and compliance with directions and orders of the court.
54 Later in 1986 the NSW Court of Appeal had occasion to consider permitting the appearance of a legally unqualified agent on behalf of a corporation (Bay Marine Pty Limited v Clayton Country Properties Pty Limited (1986) 8 NSWLR 104). Samuels JA referred to Part 4 rule 4(2) of the Supreme Court Rules. He said (at 110):
Although from time to time, in matters of procedure or practice or not of great complexity, the Court has permitted a corporation to appear by an unqualified agent, the rule has in other respects been consistently and strictly applied. The reasons for the rule are many, amongst them that otherwise it might be open to an unqualified person to appear for a corporation without any authority, and as my brother Mahoney pointed out during the argument, to render it liable to large impositions for costs, again without authority.
55 His Honour approved of what Sir Robin Cooke had said in Mannix and added that, on the assumption that a discretion existed, it should only be exercised 'with the most meticulous care' in circumstances sufficiently exceptional as to justify the dispensation. Samuels JA also made reference to the case as being of 'some complexity'.
56 An example of the exercise of discretion to permit lay representation is to be found in Galladin Pty Ltd v Aimnorth Pty Ltd (1993) 60 SASR 145. Counsel appearing for a number of defendants at the trial was granted leave to withdraw since his instructions had been terminated. One defendant, who was content to appear for himself, sought leave to represent two other defendants. Perry J, referring to O'Toole v Scott, found that he had the discretion to permit non-legal representation if it was in the interests of justice that it appeared to be necessary or convenient. He said (at 147):
The situation is unusual, however, and I am not aware of any precedent in this Court. Certainly the exercise of the discretion must be carefully controlled, as the Court must be jealous to ensure that the safeguards which follow from proper legal representation are not eroded by allowing for representation by unqualified persons who do not have the responsibilities and duties of counsel. If a stranger to an action sought leave to represent a litigant, in ordinary circumstances it would be difficult to see how that could be entertained. It is true that occasionally somebody is allowed to give assistance to another lay person in the conduct of litigation by taking a role which has come to be described as that of a McKenzie's friend: see McKenzie v McKenzie [1970] 3 All ER 1034. But the McKenzie's friend has not, as I understand it, a right of audience, but only a right to advise and assist.
57 However, his Honour was swayed by the common interest of the parties in the litigation and the relationships of brothers and sister. Also, the legal representation had ceased in mid-stream in the trial due to lack of funds. Leave was granted. See also Stergiou v Citibank Savings Ltd (1988) 148 FLR 244 at 247.
58 In R v Schagen (1993) 65 A Crim R 500 the Court of Criminal Appeal in Western Australia gave two law students leave to address the court on the appellant's behalf after legal aid had been refused. The court made it plain that it would be 'a rare and exceptional case' in which a person other than a qualified lawyer would be so permitted. Malcolm CJ also noted that the court reporting service had found the appellant to be virtually incomprehensible and that this was compounded by a severe hearing problem.
59 In Molnar Engineering Pty Ltd v Herald & Weekly Times Ltd (1984) 1 FCR 455 at 458 Northrop J referred to the importance of the obligations of a legal practitioner to the court, quite apart from the acquired skills. His Honour also stressed that a lawyer is bound by ethical principles in the conduct of the case. These were absent when the company's agent was not a legal practitioner. See also Commonwealth Bank of Australia v Individual Homes Pty Ltd (1994) 119 ACTR 1 at 3 (reported in 122 ALR) per Miles CJ.
60 The most directly relevant case in this court is Scotts Head Developments Pty Ltd v Pallisar Pty Ltd (Unreported, Court of Appeal, 6 September 1994). The court refused leave to an unqualified person to appear for the appellant corporation although it received his written submissions filed on behalf of the company as the submissions of the appellant. Mahoney AP saw the circumstances when the court would permit a person not admitted to practice to represent a party in a proceeding before the court as 'limited'. His Honour remarked that Part 4 rule 4 (of the Supreme Court Rules), which states that, subject to certain exceptions, any person may proceed in the court by a solicitor or in person, represented the established law. Further, while the court had a discretion 'it has long adopted the general rule that it will not allow an appearance by a person who has not been admitted to practice before it'.
61 Mahoney AP noted that the rule of practice is not grounded in technicalities. He explained at (pp 3 - 4):
It has long been regarded as based on considerations central to the proper administration of justice and the protection of the parties in the litigation. First, the Court has emphasised the importance, for the administration of justice, of the fact, that those permitted to appear before it owe a responsibility to the Court to ensure that the Court is properly informed and not misled: see Meek v Fleming (1961) 2 QB 366. In Ex parte Browne : at 597; Pring J referred to the importance of having, as the party before the Court, a person 'who was responsible to the Court, responsible to his client and responsible to the other party to the litigation'. See also Ex parte WA Grubb Pty Ltd ; Re Johnstone and Anor at 226, Tritonia Ltd v Equity and Law Life Assurance Society .
Second, the Court has regard to the possibility of unqualified or untrained advocates interfering with the course of a proceeding before the Court and causing loss to the parties involved. Reference was made to considerations of this kind in Hubbard Association of Scientologists International v Anderson and Anor and in Abse and Ors v Smith and Ors . Experience has shown that a proceeding conducted by a person unskilled in advocacy tends to last longer and to cost more. In determining whether to allow such an advocate to appear, the Court must have regard not merely to the position of the party for whom he seeks to appear, but also to that of the other party. The interest of the defendant in having the proceeding dealt with without unnecessary delay and cost is one which, in my opinion, is to be borne in mind.
Third, there remains the public interest in the effective, efficient and timeous disposal of litigation. The administration of justice requires that full assistance be available to the Court in determining the issues of fact and law which come before it. The isolation of issues and the presentation of the consideration which support one answer rather than another are things best done by a person experienced in such matters.
62 His Honour added:
I am conscious of the high cost of legal services and of the difficulties which confront parties to litigation in the superior courts. Legal aid and pro bono legal services do not entirely remove these difficulties. Where parties represent themselves in superior courts, the cost, in terms of personal loss and public resources, is apt to be great. For reasons such as this, the power to allow representation by a person not admitted to practice has conventionally been seen as 'a reserve or occasional expedient, produced primarily in emergency situations when counsel is not available or in straightforward matters where the assistance of counsel is not needed by the court or where it would be unduly technical or burdensome to insist upon counsel': Re GJ Mannix Ltd .
63 Some recent English cases have considered the rights of audience of unqualified persons. R v Bow County Court, ex parte Pelling [1999] 4 All ER 751 concerned the position of a McKenzie friend. Lord Woolf MR reiterated that a McKenzie friend had no right to be an advocate (757 h). The case concerned a Dr Pelling, who had set himself up as a paid 'professional' McKenzie friend. The Master of the Rolls noted that at times Dr Pelling had difficulty in divorcing his campaign role on behalf of pressure groups from that as an assistant to litigants in person. Lord Woolf added another concern (at 758):
The second is that if a person chooses to regularly appear as a McKenzie friend, especially if he is also a clerk, because he is earning his living in this way, he must exercise considerable restraint or he will cease to conduct himself as an assistant and will indirectly run the case, using the litigant in person in the manner in which a puppet master uses a puppet. Such behaviour could provide a firm foundation for a judge not wising him to be present as a 'McKenzie friend'.
64 Paragon Finance plc v Noueiri [2001] 1 WLR 2357 in the Court of Appeal is an illustration of how abuse can creep into the system. Drawing on the judgments in Mensah v Islington London Borough Council (Unreported, 1 December 2000, Court of Appeal) Brooke LJ confirmed that any person who aspired to be an advocate should obtain the requisite qualifications and the court should be slow to permit those who are allowed to be present in court as a McKenzie friend to act as advocates. His Lordship said that nobody had a right to act as an advocate without leave of the court, which as part of its power to regulate proceedings, had a discretion to control those that addressed it.
65 Quoting from Lord Woolf MR in D v S (Rights of Audience) [1997] 1 FLR 724, Brooke LJ said that the discretion to grant audience to unqualified individuals 'should only be exercised in exceptional circumstances'. Lord Woolf had said that the courts should pause long before granting rights to individuals who made a practice of seeking to represent unrepresented litigants.
66 Part of what the Master of the Rolls had to say in D v S (at 728) is as follows:
[The 1990] Act does give a court a discretion [to grant advocacy rights]. In my view, it is quite clear from the terms in which the Act as a whole is written that it is given a discretion which is to be exercised only in exceptional circumstances … [The grant of advocacy rights in specific cases] is the responsibility of the courts who have been given that responsibility by Parliament. Those who have rights of audience are subject to very stringent requirements … The law must be administered fairly. If the position was otherwise than I have indicated, others can do exactly the same as [X] and that would be monstrously inappropriate having regard to the requirements that are laced upon those who have normal rights of audience.
67 Brooke LJ said that the court was satisfied that Mr Alexander, who had been granted leave to appear on a number of prior occasions, had not only succeeded in practising advocacy as an unqualified person in the courts in a manner never intended by Parliament, but that it was overwhelmingly in the public interest that the practice be stopped. The court regarded him as incompetent in Mensah and in Noueiri, where he repeatedly took hopeless points and advanced completely futile arguments. His Lordship said that the suggestion that Mr Alexander might have made a contingency fee agreement was another indication of the importance of the courts adopting a tough line with unqualified advocates who offer their services in the higher courts without the disciplines entailed by membership of an appropriate professional body.
68 The Access to Justice Report (1994) chaired by Professor Sackville QC, as he then was, discussed arguments for and against the reservation of legal work to lawyers. The Committee concluded that there may be benefits in opening legal services to non-lawyers in some areas. However, it would be necessary to identify the areas of law where it would be appropriate for paralegals to operate and the level of formal training necessary to maintain proper standards. However, the report stressed that the practice of law should not be opened entirely to untrained persons. Emphasis was placed on the need for ethical training concerning a paralegal's duty to clients and to the court. The report did not attempt to outline what areas of legal work might be suitable for paralegals. No direct reference was made to advocacy services by unqualified persons.
Principles from the cases
69 A number of themes or principles run through the cases which are relevant to the exercise of the discretion to grant or refuse leave to an unqualified person to appear on behalf of an unrepresented litigant. They may be briefly summarised as follows: