Isaacs on behalf of the Turrbal People v State of Queensland

REASONS FOR JUDGMENT 1 Ms Ruth James and Ms Pearl Sandy have applied under s 84 of the Native Title Act 1993 (Cth) ("the Act") to be joined as respondents in these native title determination application proceedings being pursued by the Turrbal people. I will jointly refer to them hereunder as the respondent applicants. 2 As a precursor to their joinder application, the respondent applicants have filed an application under O 78 r 42A of the Federal Court Rules seeking the leave of the Court to be represented in these proceeding by Ms Katharine Wiltshire. I take that to mean to be represented in the joinder application and in the proceedings generally, if they are joined as respondents. 3 Ms Wiltshire is not a qualified legal practitioner, nor, so far as I am aware, does she have any legal training. 4 However, the respondent applicants rely upon s 85 of the Act, which provides as follows: A party may appear in person or may be represented by a barrister, a solicitor or, with the leave of the Federal Court, another person. 5 Mr Blackshield, on behalf of the Turrbal People, opposed the application for leave under s 85 of the Act, however he did not object to what was an obvious threshold issue, viz whether Ms Wiltshire should be permitted to represent the respondent applicants for the purposes of making the application for leave itself. In the absence of any opposition to that course, Ms Wiltshire proceeded to do so by default. In a sense, that proved fortuitous for Mr Blackshield's opposition to the leave application because, during the course of the hearing, Ms Wiltshire demonstrated to me that she is not a suitable person to represent the respondent applicants in either the joinder application, or in the proceedings generally. Before explaining why I have reached that conclusion, I will first refer to some decisions of this Court and others where the question whether to allow an unqualified person to appear for an unrepresented litigant, has been considered. 6 First, in Harrington-Smith on behalf of the Wongatha People v State of Western Australia [2002] FCA 871 ("Wongatha"), Lindgren J made the point that the grant of leave under s 85 does not occur as a matter of course, it is only granted to serve the interests of the administration of justice. His Honour said (at [20]): What should be clearly understood is that leave is required because it is not to be taken for granted that a person who is not a solicitor or barrister will be allowed to represent a party. Perhaps Dolly Walker thinks that leave is granted as a matter of course, just for the asking. This is not so and for good reason. Solicitors and barristers are qualified by education and training to represent parties and are subject to professional and curial disciplines and responsibilities. The requirement of leave is imposed for the reason that the Court must be satisfied that it is in the interests of the administration of justice in all the circumstances that a party be represented by a person who is not a solicitor or barrister. 7 Then, in Damjanovic v Maley (2002) 55 NSWLR 149; [2002] NSWCA 230 ("Damjanovic") Stein JA (with whom Mason P and Sheller JA agreed) exhaustively examined the authorities on this question: see at [37]-[87]. That decision involved s 43(1) of the District Court Act (NSW) which contained a provision similar to s 85 of the Act. Following his Honour's examination of the authorities, he set out six principles that emerged from them together with a summary of the effect of the authorities on each principle. Excluding most of the case references and the matters that are specific to that case, the principles and summaries were as follows: (a) The complexity of the case [70] Whether the case is one of complexity or minor or straightforward has often been seen as a discretionary factor. … … (b) Genuine difficulties of the unrepresented party [72] These include matters such as unexpected language difficulties and emergencies. An example of the latter was the absence of legal aid in a criminal appeal (Schagen at 501). Also, in that case, the appellant was deaf and virtually incomprehensible to the court reporters. The court permitted two law students to address the court. … … (c) The unavailability of disciplinary measures and a duty to the court by lay advocates [74] Almost every case mentioned these matters as protection for a client when a qualified lawyer represented a party but were protections which were not available where an unqualified lay advocate appears. … Abse also emphasised the duty of a legal practitioner of absolute probity. [75] In appropriate cases a legal practitioner may be ordered to pay costs. The position is far from clear in relation to a non party lay advocate. There may be extreme circumstances where the conduct of a lay advocate could attract an adverse costs order. [76] In my opinion, the overall duty of a barrister or solicitor to the court is an important consideration. It is a duty of candour and a practitioner must not knowingly mislead the court. The court is entitled to place reliance on that duty and expect it to be met. The disciplinary codes of the legal profession back up the overriding duty of a practitioner to the court. … [77] Training, qualifications and experience are also important. This is not to say that there are not incompetent lawyers, including some who seek to practice advocacy. For the most part, the market and the disciplinary codes account for them. But with unqualified and uninsured lay advocates, the court loses the benefit of the overriding duty and clients are at a distinct disadvantage. Apart from endeavouring to ensure that a lay person granted leave to appear obeys the rules, there is little a court can do except, in an appropriate case, withdraw the leave to appear. … (d) Protection of the client and the opponent [79] Lay advocates are unqualified, unaccredited and uninsured. This places a client at considerable risk. The point was made in Scotts Head that an unqualified advocate may cause loss to a party (at 3). A lay advocate does not owe the same duty to his client as does a lawyer. See also Abse at 546 highlighting the duty owed by a lawyer to assist the court in ensuring the end of the proper administration of justice. ... [80] One should also not lose sight of a lawyer's duty to his/her opponent, … None of these protections for the system of justice exist with an unqualified lay advocate. … (e) Lay advocates in inferior courts and tribunals [81] There are indications in some of the cases that Local Courts, given their jurisdiction and large numbers of unrepresented litigants, may be more likely to grant leave to unqualified persons. This is, one assumes, in straightforward uncomplicated matters where the party is under some disability in presenting his/her own case. This may also be the case with some specialist jurisdictions and tribunals. [82] The authorities however suggest that higher courts should be very chary at giving leave. … (f) The interests of justice [83] What runs through all of the authorities as the guiding principle in the exercise of the discretion is the public interest in the attainment of the ends of justice. The public has an interest in the effective, efficient and expeditious disposal of litigation in the courts. As a general rule this can best be achieved by parties employing qualified lawyers. [84] The reason for this was explained by Gleeson CJ in a speech given to the Supreme Court of Japan in January 2000 (Current Issues for the Australian Judiciary). The Chief Justice said that: "The adversary system assumes, in the interests of both justice and efficiency, that cases will be presented to courts by skilled professionals. To the extent to which that assumption breaks down, so does the system." [85] Representation by legal practitioners will not always be possible because of the high cost of legal services and restrictions on legal aid. There is therefore room for the discretion to be exercised in an appropriate case, as indeed the authorities make plain and in circumstances where the achievement of justice cannot be otherwise secured. [86] Nonetheless, the foundation for the general principle and limited room for the discretion to be exercised is, as Mahoney AP said in Scotts Head, the proper administration of justice and the protection of the parties. It is not a rule devised to protect a lawyer's privilege or monopoly. Access to justice is a difficult issue in an ever more complex society with constraints on public resources. It will therefore be understandable and appropriate that judges will from time to time be prepared to grant leave to an unqualified person. Advocacy before courts is however a difficult skill to acquire without formal qualifications, training and practice. Ultimately perhaps governments may take up some of the recommendations of the Access to Justice Report referred to earlier. 8 Finally, in Adnyamathanha People No 1 v The State of South Australia [2004] FCA 950 ("Adnyamathanha"), Mansfield J made some observations similar to those made by Lindgren J in Wongatha about s 85 operating in the interests of the administration of justice and, in that regard, added some important observations about the necessary capacities of the unqualified representative, as follows (at [10]): Section 85 contemplates leave being given to a party to be represented by another person where it is in the interests of the administration of justice in all the circumstances that a party be represented by such other persons. The interests of the administration of justice involve consideration of the capacity of the proposed other person properly to represent the party seeking leave to be so represented, and the interests of the other parties in the proceedings, as well as the efficient conduct of the proceedings. It is not simply a matter of an unrepresented person asserting an inability or inadequacy to present to the Court the matters which the unrepresented party wishes to represent that gives rise to leave to be represented by some other unqualified person. The other unqualified person must have the capacity to understand the nature of the Court's processes, and to serve the interests of the party that the unqualified person is proposing to represent. It must also appear that the other unqualified person will not unduly or unfairly disadvantage the interests of other parties by an inability to understand or conduct proceedings in a sensible and effective way. That is not to say that the other person must have all the skills of a legal practitioner. But it is to say that the proposed representation must be useful, in a real sense, in the conduct of the proceedings. 9 Consistent with all these observations (with which I respectfully agree) it may not be surprising to find that applications for leave under s 85 of the Act are usually unsuccessful. For example, in Wongatha, Lindgren J refused the application and in Adnyamathanha, Mansfield J allowed the application, but on quite strict conditions: see Adnyamathanha at [5]. Furthermore, in Adnyamathanha (at [11]) Mansfield J referred to two other decisions of this Court where leave had been refused, or withdrawn, by Stone J. 10 However, this application has to be considered on its merits, not upon a comparison of the success or failure of other similar applications. In considering the merits of this application, the authorities I have referred to show that, in determining whether to exercise my discretion to grant leave, the overriding consideration is the interests of the administration of justice. And, as Stein JA observed in Damjanovic, that primarily concerns the "effective, efficient and expeditious disposal of litigation in the courts": see at [83]. This terminology mirrors that of the overarching purpose of civil litigation in this Court expressed in s 37M of the Federal Court of Australia Act 1976 (Cth). Of course, that overarching purpose applies equally to native title litigation as it does to any other civil litigation in the Court. In this Court, the overarching purpose set out in s 37M, is largely achieved through the Court's case management procedures. That means in determining whether to exercise my discretion in this matter I should consider the case management procedures that I employed in this matter to achieve that efficiency and how the parties performed in relation to those procedures. 11 Before turning to consider those matters, I will briefly mention two of the other principles identified by Stein JA in Damjanovic that each counts against my exercising my discretion to grant the leave sought in this application. 12 First, there is no evidence before me to suggest that either Ms James, or Ms Sandy, or even Mr Sandy if leave is given to amend the joinder application to add him as an applicant (as to this aspect see at [15] below), will have any difficulty appearing as an unrepresented party in the joinder application, or in the proceedings, if they are joined as respondent parties. In her affidavits, Ms James says that she has not been able to obtain any legal representation from Queensland South Native Title Services, the native title representative body for the area concerned, or obtain funds from that body to employ lawyers to act for her. However, she does not say that she cannot afford to pay for that legal representation herself and, if that is so, she does not say what attempts, if any, she has made to obtain pro bono legal representation. There is also no evidence from her, or anyone else, that any of the respondent applicants suffers from any language difficulty, or any physical disability, or any other deficiency that would impair her or his (assuming Mr Sandy is added as an applicant) ability to appear in person in these proceedings. 13 Secondly, the complexity of these proceedings counts against my exercising my discretion to grant the leave sought. It hardly needs to be said that native title proceedings are complex. Among other things, they involve a unique interaction between traditional Indigenous laws and customs and the Australian legal system that of itself gives rise to complexity. Furthermore, the various procedures set out in the Act affecting native title determination applications such as this, are quite detailed and complex. This is exemplified in relation to a joinder application by Indigenous persons in circumstances such as this, where a distinction is drawn between becoming respondents in order to seek a determination of native title in their favour over parts of the land covered by an existing application, and becoming respondents in order to seek to protect the native title rights and interests they claim to hold in the land from erosion, dilution, or discount by the process of the Court determining the claims of the claimants in those existing proceedings. Furthermore, in the latter situation, the Indigenous person cannot act as a respondent in a representative capacity: see Bonner on behalf of the Jagera People #2 v State of Queensland [2011] FCA 321 at [15]-[19]. 14 I now return to the question of the case management procedures that were employed in this matter and how the parties performed in relation to them. The notice of motion for the joinder application was filed on 18 May 2011. It sought to have Ms James and Ms Sandy joined as respondents to these proceedings "on behalf of their family clans of the YUgarapul People". It was supported by affidavits of Ms James and Ms Sandy that were filed on the same date. On 8 June 2011, I ordered the respondent applicants to file and serve any further affidavits upon which they wished to rely by the close of business on 27 June 2011. I also ordered the Turrbal applicants and any other parties who wished to, to file and serve any affidavits upon which they wished to rely by the close of business on 8 July 2011. Finally, I ordered the parties to exchange written outlines of submissions by the close of business on 15 July 2011. 15 Significantly, the respondent applicants failed to comply with all of these directions. On 29 June 2011, two days out of time, they filed a further affidavit of Ms James and an affidavit of Mr Desmond Sandy. On the same date they filed an amended notice of motion which sought to strike out the reference to: "on behalf of their family clans of the YUgarapul People" (see at [14] above); and add Mr D Sandy as an applicant. 16 They did not seek any prior leave to make these amendments. 17 They did not provide any written outline of submissions by 15 July, or at all. 18 Then, on 21 July 2011, the day before the hearing of the joinder application, they filed four more affidavits. These included affidavits by two expert witnesses: Dr F Powell, an anthropologist, and Ms C Sharpe, a person claiming to have expertise in the Turrbal language. Plainly, if the respondent applicants wished to rely upon this expert evidence in support of their joinder application, they should have filed it by 27 June 2011, not the day before the hearing. The other affidavits were affidavits of Ms James and Mr Sandy both of which contained, among other things, further evidence in support of the joinder application. This, too, should have been included in the affidavits they were supposed to file by 27 June 2011. 19 No leave was sought to file any of this further material and no explanation was given as to why it was not filed and served by 27 June 2011 in accordance with the Court's directions. 20 Finally, during the hearing of the leave application on 22 July 2011, Ms Wiltshire sought to file an amended form of the affidavits of Ms James and Mr Sandy. While the amendments themselves were not significant, it was significant that Ms Wiltshire had made no attempt to provide copies of these amended affidavits to Mr Blackshield before she sought leave to file them in the Court. 21 In my view, these failures to comply with the Court's case management directions and, in the process, produce significant further evidence just before the hearing of the joinder application, thereby causing significant potential prejudice to the opponents to the joinder application were, at least in part, caused by Ms Wiltshire. I emphasise "potential" prejudice because I have not yet heard from the parties as to whether the respondent applicants should be allowed to rely upon this evidence in their joinder application. 22 I consider Ms Wiltshire was, at least in part, the cause of these failures because it became clear to me from what Ms Wiltshire told me during the hearing of this leave application about her role in preparing Ms James' affidavit, and also from what Ms James said in her various affidavits filed in support of the joinder application, about Ms Wiltshire's critical role in assisting the respondent applicants in this and other proceedings, that Ms Wiltshire was directly involved in preparing, filing and serving, this leave application, the joinder application and, most importantly, the various affidavits filed in support of both applications. 23 A particularly disturbing aspect of Ms Wiltshire's conduct during the hearing of this leave application was her responses to my questions about a statement in a paragraph of one of Ms James' affidavits about the date upon which she was served with the Turrbal applicants' materials. When Mr Blackshield challenged the assertion in the affidavit that the materials were served on 8 July, Ms Wiltshire accepted that the date stated was not correct and it should have been 1 July. Then, when I asked whether she had prepared the affidavit concerned she said: "To be honest, your Honour, I can't remember. There were so many things that I had to put together from emails from Ms James." Yet, when the same issue arose a little later and I asked her the same question, she initially gave the same answer, but when I pressed her on the issue she said: "I compiled it. I put it together so it could be filed in the right processes of court." 24 If, in similar circumstances, a legal practitioner's responses to my questions involved this sort of lack of candour, I would have seriously considered applying the "professional and curial disciplines and responsibilities" that Lindgren J mentioned in Wongatha: see at [6] above. 25 This incident demonstrates to me that Ms Wiltshire is not a suitable person to represent a party in proceedings before the Court. Furthermore, as well as this lack of candour, I do not consider she has the requisite understanding of the Court's processes as identified by Mansfield J in Adnyamathanha. In this regard, I consider her involvement in the failure of the respondent applicants to comply with the Court's directions shows that she does not understand, or perhaps respect, the importance of complying with such directions, or the importance of case management in the efficient preparation for the hearing of applications such as this. 26 As I have already observed above, if she were a legal practitioner acting for the respondent applicants I would have available to me various sanctions to deal with these failures to comply with the Court's directions. For example, if the late production of this material does eventually cause the hearing of the joinder application to be adjourned, I would then have to seriously consider whether I should ask her to show cause why she should not be ordered to personally pay the costs thrown away by that adjournment. 27 However, as Stein JA observed in Damjanovic, it is doubtful whether that power exists in relation to a non party lay advocate: see at [75]. This starkly demonstrates the problems that can arise when a non party lay advocate's lack of understanding of the court's processes, or the relevant law, adversely affects other parties in litigation before the court and there is no clear sanction available to address that situation. In saying this, I should not be taken as expressing a view as to whether the same doubt exists in relation to the sanctions contained in ss 37N and 37P of the Federal Court of Australia Act 1976 (Cth). 28 Nonetheless, whether or not the sanctions in those sections could be applied to non party advocates, I consider the safest course in this matter is to refuse this leave application and thereby, hopefully, prevent Ms Wiltshire being involved in creating similar problems in these proceedings in the future. Of course, this would not prevent her continuing to assist the respondent applicants behind the scenes. However, if that assistance were to result in them not complying with directions given by the Court, or not following the Court's processes, there is no doubt that the sanctions in ss 37N and 37P could be imposed on them as parties to the litigation. 29 For these reasons I do not consider it is in the interests of the administration of justice that I should exercise my discretion to give the necessary leave for Ms Wiltshire to represent the respondent applicants in their joinder application, or in the proceedings generally, should they be joined as respondents. 30 I therefore refuse the respondent applicants' application for leave under s 85 of the Act. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.