JUDGE1
PERRY J
At the commencement of the hearing this morning, Mr David Howard,
who had been appearing for the second defendant, Rigfield No 2,
and the 5th,
6th and 7th defendants, that is to say, Sadie Hofer, Damien Lovering and
Brenton Lovering, indicated that his instructions
had been terminated. He
sought leave to withdraw from the proceedings, which I granted.
2. The defendant, Brenton Lovering, then
sought leave to represent himself
and also his brother and sister, the 5th and 6th defendants, that is Sadie
Hofer and Damien Lovering.
It appears that Mr Damien Lovering has returned to
Queensland where he resides. Sadie Hofer is both in employment and pregnant,
and does not wish to have the carriage of the proceedings on her own behalf.
She informed me that she wished her brother Brenton
Lovering to represent her
in the proceedings if I was prepared to give leave for him to do so. She saw
no conflict of interest,
and she said that the matter had been discussed
between the three defendants in question, and that there had been a common
resolution
that Brenton Lovering appear for them.
3. Mr Wells QC indicated that on his instructions the Court should not accede
readily to
the suggestion that Damien Lovering wished his brother Brenton
Lovering to represent him. He suggested that there is a division
between the
defendants and that this Court had, in effect, not been told the whole story.
4. Mr Brenton Lovering indicated that
he had spoken to Damien Lovering by
phone this morning, and he had been given clearly to understand that it is the
wish of his brother
Damien that he represent him. If I was otherwise disposed
to allow him to take the course which he now seeks to take, I would do
so on
the basis 2 that Damian Lovering confirm in writing the authority of Brenton
Lovering to represent him.
5. The matter, however,
poses a question of principle which must be
addressed. That is whether the Court has a discretion to permit a person
other than
a legal practitioner to represent other litigants and, if such a
discretion exists, whether it is proper in the circumstances of
this case for
the discretion to be exercised in favour of allowing the course which is
proposed.
6. The question is not without
some difficulty. In an endeavour to maintain
the passage of the trial without serious interruption, I have not taken so
much time
to look into the matter as might ideally have been the case.
7. It appears from Lawyers (Disney and others) (second edition 1986)
at 552
et seq, that according to the learned authors, there is a discretion to hear
non-legal representatives of parties. A number
of cases are cited which are
said to support such a principle.
8. The case which is perhaps most pertinent is the decision of the
Privy
Council in O'Toole v Scott (1965) AC 939. In that case, the Privy Council had
occasion to consider the right of unqualified representation under s.70(2) of
the Justices Act
(1902) of New South Wales. Although most of the advice
tendered by their Lordships in that case deals with a question of the
construction
of the statute, which is not germane to the task which I have in
hand in this case, their Lordships did make some general observations
which
are relevant to the question now at issue. In that case appears the following
passage (Reid, Morris, Pearce, Donovan and Pearson
LJJ (958):
3 "There remains for consideration the appellant's
alternative contention to the effect that, if the
magistrate
has a discretionary power to permit some
person, not being the informant or his counsel or attorney,
to conduct the case
for the informant, such power is
properly exercisable only on the facts of a particular case
where for some special reason
it is necessary for the
administration of justice that such permission be given.
There are two points involved, namely (1)
that the
discretionary power must be exercised specially in a
particular case and not by way of a general practice and (2)
that the discretionary power is properly exercisable only
when its exercise is necessary for the administration of
justice,
and not when it is merely desirable for convenience
and expedition and efficiency in the administration of
justice. There
is, however, no sound basis for either
point. There is no statutory limitation of the discretion.
The discretion is not
conferred by statute but is an element
or consequence of the inherent right of a judge or
magistrate to regulate the proceedings
in his court. There
is no reason in principle for limiting the discretion as
suggested. It can be exercised either on general
grounds
common to many cases or on special grounds arising in a
particular case. Its exercise should not be confined to
cases where there is a strict necessity. It should be
regarded as proper for a magistrate to exercise the
discretion
in order to secure or promote convenience and
expedition and efficiency in the administration of justice."
9. While in the last
sentence of that passage specific reference is made to
the position of a magistrate, it seems to me that the passage as a whole is
of
a wider application. In any event, it would be anomalous if an inferior Court
could exercise a power that this Court could not.
10. I have considered the provisions of the Legal Practitioners Act 1981. But
on the assumption that Mr Brenton Lovering is not
acting for fee or reward, I
am of the opinion that there is nothing in s.21 of the Act which would stand
in the path of me exercising
such a discretion.
11. It is true that s.51 of the Legal Practitioners Act deals in general
terms with rights of audience, but that
is in the 4 context of persons
entitled to practice, and that again carries with it a connotation of carrying
on a practice or business
or profession, which is not what Mr Brenton Lovering
in this case seeks to do. Even if I am wrong in that view, I would not read
s.51 as excluding the inherent discretion to allow representation other than
by a member of the classes of practitioner referred
to in the section.
12. I hold that I have a discretion to permit non-legal representation if in
the interests of justice that appears
to be necessary or convenient.
13. 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 MacKenzie's friend has
not, as I understand it, a right of audience, but only a right to advise and
assist.
14. The circumstances
of this case are unusual, however, in that the 5th, 6th
and 7th defendants are brothers and sister and have what appears to be a
common interest in the litigation. Their 5 legal representation has ceased,
as it were, mid-stream apparently due to a lack of funds
to pay for it. The
Court is already faced with the situation where three other parties are
represented other than by solicitors,
that is to say, Gary and Gael Lovering,
who are the 3rd and 4th defendants, who represent themselves, and the first
defendant Aimnorth
Pty Ltd, which is represented by Mr Garry Lovering as a
director pursuant to Rule 36.
15. It seems to me that in fairness to the
5th and 6th defendants, it would
be wrong to refuse to allow them to be represented by Brenton Lovering. It
would obviously be inconvenient
for Damian Lovering to come down again from
Queensland to see the litigation out, and equally inconvenient for Sadie
Hofer, in the
condition in which she is, to sit in Court to present her case.
16. While the situation is far from ideal, I am satisfied that the
particular
circumstances justify taking the unusual course of allowing Mr Brenton
Lovering's application. There will, however, be
a condition that Mr Damian
Lovering confirm today by fax that Brenton Lovering has unqualified authority
to act on his behalf for
all purposes in the litigation from now on, including
representation in Court.
17. I am satisfied by what Ms Hofer has said that
her authority is
unqualified and I see no reason why it needs to be reduced to writing.
18. There is a separate application by Brenton
Lovering to represent the
company Rigfield No 2 Pty Ltd, of which he is a director. That falls to be
determined in accordance with
the 6 requirements of Rule 36. That is not a
matter which I need go into now, but I will, in the course of the hearing,
allow him
to adduce evidence in accordance with the requirements of Rule
36.11.
19. I hold, therefore, that until further order Brenton Lovering
may
represent himself and Sadie Hofer, the 5th defendant, and Damian Lovering, the
6th defendant.
20. Mr Wells QC was anxious to
be given the right to make further submissions
on the point, on the footing that he had not had sufficient opportunity to
offer assistance.
I see no reason to hear further from him, but he is at
liberty if he wishes to put further authority before the court on the
question,
in case there is authority which I have overlooked and which should
be taken into account.