HRNG ADELAIDE, 20 April 1993 #DATE 20:4:1993 Counsel for plaintiff: Mr W J N Wells QC with

Mr J M Cudmore Solicitors for plaintiff: Ward and Partners Defendant Ainnorth Pty Ltd: Represented By Mr Garry Lovering Defendant Rigfi Eld No 2 Pty Ltd: No Attendance Defendant Garry William Lovering: In Person Defendant Gael Ann Lovering: Represented By : Mr Garry Lovering Defendant Sadie Hofer: Represented By Mr Brenton Lovering Defendant Damian Lovering: Represented By Mr Brenton Lovering Defendant Brenton Lovering: In person

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.