Portelli v Goh

COUNSEL : Mr Bruce White (McKenzie Friend for the plaintiff) SOLICITORS : Mr Liang Goh (Defendant) CATCHWORDS : Summary judgment - Appeal Local Court Supreme Court Rules - Part 13 r 5 LEGISLATION CITED : Local Courts (Civil Claims) Act 1970 (NSW) Justices Act 1902 (NSW) Judicial Review of Administrative Act 2nd ed at 180-181 Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 Air Services Australia v Zarb (NSWCA unreported, 26 August 1998) Dey v Victorian Railways Comissioners (1949) 78 CLR 62 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Webster & Anor v Lampard (1993) 177 CLR 598 Allen v Kerr & Anor (1995) Aust Torts Reports 81-354 CASES CITED : Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 O'Toole v Scott [1965] AC 939 McKenzie v McKenzie (1970) 3 All ER 1034 Collier v Hicks (1831) 2 B & Ad 663 Smith v R (1985) 159 CLR 532 Horbelt v Elliott & Turner (1995) 184 LSJS 31 Galladin Pty Ltd v Aimnorth Pty Ltd (1993) 60 SASR 145 Kioa v West (1985) 159 CLR 550 DECISION : (1) The notice of motion filed 18 March 2002 is dismissed; (2) The defendant is to pay the plaintiff's costs, if any.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

12861/2001 - PETER MARIO PORTELLI v SHUEH LIANG GOH

JUDGMENT (Summary dismissal - appeal: Local Court) 1 MASTER: This is a most unusual case. By notice of motion filed 18 March 2002 the defendant seeks firstly an order that the order made by the court on 18 February 2002 allowing leave sought by the plaintiff to permit Bruce Kerrin White to appear for the plaintiff be set aside; secondly, an order that Bruce Kerrin White not be allowed to sit at the bar table in these proceedings; and thirdly, an order that the current proceedings being the appeal from the judgment of the local court on 24 September 2001 be dismissed. The defendant relied on his affidavit sworn 18 March 2002. Mr Goh an admitted solicitor appears for himself. For the purposes of this application, I allowed Mr White to appear. Mr Portelli was not present in court, but was available to give evidence. As I understood it, Mr Portelli did not wish to present his case. He wanted Mr White to do so. 2 Mr White informed the court that he had been admitted as a barrister in 1976 but did not hold a current practising certificate. He is a longstanding friend of Mr Portelli. The appellant Mr Portelli is a motor mechanic. He is unable to afford legal representation and Mr White is not charging any fee. The role Mr White wishes to undertake is that of an advocate and not one confined to that of a "McKenzie" friend. (A "McKenzie" friend is explained later in this judgment). 3 The amended summons contains lengthy grounds of appeal. This appeal is currently listed for call-up for a hearing date of the appeal to be allocated. Meanwhile the defendant has filed a motion seeking to have the appeal summarily dismissed. The defendant referred to Part 13 r 5 of the Supreme Court Rules (SCR) which states: "(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings- (a) no reasonable cause of action is disclosed; (b) the proceedings are frivolous or vexatious; or (c) the proceedings are an abuse of the process of the Court, the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings." 4 In Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 the High Court held at 57 that:

"Ordinarily a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way." 5 According to their Honours, this is because:

"It would be wrong to deny a plaintiff resort to the ordinary processes of a court on the basis of a prediction made at the outset of a proceeding if that prediction is to be made simply on a preponderance of probabilities" (at 58). 6 Similarly, in Air Services Australia v Zarb (NSWCA unreported, 26 August 1998) Rolfe AJA found it useful to remind himself of the highly demanding test imposed on a party seeking summary judgment. His Honour referred to Dey v Victorian Railways Commissioners (1949) 78 CLR 62; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 and Webster & Anor v Lampard (1993) 177 CLR 598. I have reproduced some of the passages quoted in Zarb. 7 In General Steel Barwick CJ, who heard the application alone stated at 130: "Although I can agree with Latham CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed." 8 Barwick CJ also said at 129: "It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of cause of action - if that be the ground on which the Court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; 'be manifest that to allow them' (the pleadings) 'to stand would involve useless expense'." 9 In Webster Mason CJ, Deane and Dawson JJ reinforced the rigorous testing stating, at 602: "The power to order summary judgment must be exercised with 'exceptional caution' and 'should never be exercised unless it is clear that there is no real question to be tried."' 10 According to Rolfe AJA in Zarb at 15-16: "The demanding nature of the test is in no way lessened in circumstances where there are the potential for difficult factual and legal issues to arise. Rather, as the decision in Webster made clear, it is heightened: see also Wickstead & Ors v Browne (1992) 30 NSWLR 1 and Esanda Finance Corporation Limited v Peat Marwick Hungerfords (1997) 188 CLR 241." 11 The three main issues raised in the appeal are firstly, that there has been a denial of natural justice; secondly, leave was refused by the Local Court to join a third party; and thirdly, Mr White was not allowed to represent Mr Portelli at the hearing. 12 The appeal arises from the Local Court proceedings between Shueh Liang Goh as plaintiff and Peter Mario Portelli (first defendant) and Carl Blance (second defendant) seeking the sum of $40,000 plus costs, alleged due and owing from a lease agreement between Mr Goh as lessee and Messrs Portelli and Blance in partnership as lessor. Mr Blance has since died. Mr Portelli was having difficulty joining the estate of the late Carl Blance. On 24 September 2001 Mr Portelli was ordered to pay to the plaintiff a total of $51,939. 13 On 16 August 2001, in the Local Court, Mr Portelli filed a notice of motion seeking to file a third party notice against the estate of Carl Blance. There had been prior directions hearings. On 16 August 2001 the magistrate Garbutt LCM delivered judgment in which he confirmed the hearing date of 24 September 2001, dismissed the motion and awarded costs against Mr Portelli. 14 At the outset, it may be helpful to make some brief comments concerning the remedy pursued by the appellant/defendant. Section 69(2) of the Local Courts (Civil Claims) Act 1970 (NSW) permits a party who is dissatisfied with a judgment as being erroneous in point of law to appeal to this Court. The onus lies on the appellant to demonstrate that there has been an error of law. What is a question of law (as opposed to a question of fact) was considered, inter alia, in Allen v Kerr & Anor (1995) Aust Torts Reports 81-354 and Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156. 15 On 11 September 2001 Mr Portelli sought leave to appeal the decision of Garbutt LCM in this court. That appeal came before this court on 24 September 2001 before Levine J. On the same day the Local Court matter was also listed for hearing. In the Supreme Court Mr White appeared as amicus curie for Mr Portelli and Mr Goh was represented by Mr Wolf, solicitor. His honour adjourned the summons to 8 October 2001 and noted "If consequent upon proceedings in the local court today, the present plaintiff, Mr Portelli, chooses to amend the summons, he is to do so by no later than 4 pm Wednesday 3 October 2001." 16 After the Supreme Court matter was dealt with on the morning of the 24 September 2001, the parties returned to the Local Court. At that Local Court hearing Mr Portelli told the magistrate that he understood that the (Local Court) hearing date had been vacated. Mr Portelli requested that the hearing be adjourned. This was opposed by Mr Goh. The magistrate heard evidence from the list clerk which did not accord with Mr Portelli's version. Ultimately, the magistrate refused the adjournment. The magistrate decided to allow the plaintiff's case to proceed and stand the defendant's case over so that he could assemble his witnesses. Mr Portelli indicated that he was not able to cross examine the plaintiff's witnesses and left the precincts of the court. The reasons are fully set out in the transcript. The matter continued to be heard in Mr Portelli's absence. 17 At the outset of the hearing Mr White sought leave to appear for Mr Portelli. The magistrate asked the plaintiff's solicitor whether he had any objection to Mr White speaking on behalf of Mr Portelli. The plaintiff's solicitor told the magistrate that he did object. The following exchange took place: "WHITE: Well I've been a friend of him to Mr Reina's matter, I've been dealing with Mr Reina all the way through this and I'm surprised that he should object. I'd like to hear his reason for objection. Mr Portelli requested I should speak to him. BENCH: I don't know that there's any authority under the Civil Claims Act that allows unqualified people to appear on behalf of other people. Normally if people don't object then the court will allow it but if there is an objection Mr White you will need to point me to some authority whereby I can allow you to represent Mr Portelli. WHITE: I think there is provision in the rules there for you to allow it. I would like to hear Mr Reina's basis for objection. I think you should ask the same question. BENCH: No. Can you tell me what the rule is then? WHITE: Pass me the book and I will have a look. BENCH: No this is my book Mr White. Can you tell me what part of the rules it's in if you can't tell me the precise rule?

WHITE: Not off the top of my head. I didn't expect to answer this question today. I've just done an appearance in the Supreme Court on the same basis and they had no problems with it and there was no objection up there so I can't understand an objection here where there is no objection up there. BENCH: Mr Reina were you appearing in the Supreme Court? REINA: No your Worship. Counsel represented the defendant in those proceedings. BENCH: I'm going to look at part 37 of the rules which talks about representation by a solicitor. Well Mr White part 37 talks about representation by solicitors. As I said people can either appear in person or be represented by a solicitor. There's no provision that I know of in the Act or rules that allows for an unqualified person to appear on behalf of a defendant. And if you can't point me to any authority, given that Mr Reina objects, then I can't allow you to appear." 18 Part 37 of the Civil Claim Act is similar to Part 11 r 1 of the SCR. Part 11 r 1 states: "1. Appearance by solicitor or in person

Subject to rule 1A and subject to Part 63 rules 2 and 3 (which relate to disability), any person may enter an appearance and may defend proceedings by a solicitor or in person." 19 The magistrate stated that she did not mind if Mr White sat at the bar table and assisted Mr Portelli but that Mr Portelli would have to do his own representation. That is, she gave Mr White permission to appear as a "McKenzie" friend. 20 In O'Toole v Scott [1965] AC 939 the Privy Council considered the right of unqualified representation under s 70(2) of the Justices Act 1902 (NSW). Reid, Morris, Pearce, Donovan and Pearson LJJ at 598 stated: "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." 21 In McKenzie v McKenzie (1970) 3 All ER 1034 the Court of Appeal approved the statement by Lord Tenderden CJ in Collier v Hicks (1831) 2 B & Ad 663 at 669 where he said: "Any person whether he be a professional man or not, may attend as a friend of either party, may take notes, may quietly make suggestions, and give advice; but no one can demand to take part in the proceedings as an advocate, contrary to the regulations of the court as settled by the discretion of the justices." 22 In McKenzie, the "friend" was Mr Hangar who was a qualified member of the bar in Australia who sat quietly beside one of the parties at the bar table and gave him quiet advice or prompting. 23 Mr Goh referred to Smith v R (1985) 159 CLR 532 where the High Court stated: "The question whether an accused person should be allowed to have a "McKenzie friend" present at his trial is very much a matter of practice and procedure, and within the discretion of the trial judge to decide. It would be far too absolute to say that an application to have a "McKenzie friend" should always be refused. All the circumstances of the case must be considered in deciding upon the application. However, when the accused has been offered legal aid but has refused it, and nevertheless desires to have a barrister appear as a "McKenzie friend", it would be understandable if the judge regarded his application with some scepticism." 24 However as previously stated, it is not the "McKenzie" friend issue that was in dispute, rather it was whether Mr White could appear in the role of an advocate for Mr Portelli. Mr Goh also referred to Horbelt v Elliott & Turner (1995) 184 LSJS 31 where Olsson J stated: "15. A perusal of the judgments of their Lordships in McKenzie v McKenzie (1970) 3 All ER 1034 and in R v Leicester City Justices, ex parte Barrow and Anor (1991) 3 All ER 935 readily reveals that the concept of a "McKenzie friend" envisages permitting a lay person to attend the trial and take notes, quietly make suggestions to the litigant in person and give advice to that litigant. It certainly does not extend to acting as a lay advocate and/or speaking on behalf of the litigant. Moreover, it is a matter of discretion of the Court, in the particular case, as to whether it is appropriate for a "McKenzie friend" to be involved at all (Smith v R (1987) 71 ALR 631). 16. It is to be noted, by way of contrast, that section 38(4) of the Magistrates Court Act, 1991 expressly confers a right in a litigant in the Minor Civil Actions jurisdiction "to be assisted by a person who is not a legal practitioner" on an honorary basis. However, in the other jurisdictions of the Magistrates Court, the situation rests on the authorities above referred to.

17. The learned magistrate was plainly correct in refusing the request made to him, in the terms in which it was made. Moreover, it is apparent, both on Mrs Horbelt's affidavit and a report obtained by me from the learned magistrate, that she was permitted to (and did) act as a "McKenzie friend" in the true sense of the relevant concept, albeit that she complains that she was not permitted actually to sit alongside him at the bar table and says that she was stressed' and uncomfortable'. The nature and manner of participation of the appellant's wife was essentially a matter for the discretion of the learned magistrate and I fail to see any proper ground of complaint." 25 However, in another South Australian Supreme Court matter of Galladin Pty Ltd v Aimnorth Pty Ltd (1993) 60 SASR 145 Perry J allowed one defendant to represent another two defendants, his brother and sister. Perry J referred to O'Toole v Scott and the inherent power of the court. After taking into account the unusual circumstances of the case he acceded to this request. 26 Thus there are differing views as to whether a person can appear as an advocate for a litigant. The plaintiff's motion seeks that the order made on 18 February 2002 be set aside. The judgment records: "There is a dispute relating to the costs of today. It is said that the new proposed amendments should have been prepared by today and I think there is force in that submission. Mr White, whom I have given leave to represent Mr Portelli, gave what he purported to describe as reasons why he should not pay the costs thrown away for today's proceedings. The only one he gave of substance was there was a foreshadowing of the desire to make the amendments. In those circumstances, I think the appropriate order is that the costs of today should be the defendant's costs in the proceedings." 27 It is my view that Grove J's leave to Mr White to appear before him was confined to that day. Hence it is not appropriate to set that order aside. Denial of natural justice 28 In relation to natural justice, Professor S A de Smith, Judicial Review of Administrative Act, 2nd ed., pp 180-181 has stated: "Natural justice generally required that persons liable to be directly affected by proposed administrative acts, decisions or proceedings be given adequate notice of what is proposed, so that they may be in a position: (a) to make representations on their own behalf; or (b) to appear at a hearing or inquiry (if one is to be held); and (c) effectively to prepare their own case and to answer the case (if any) they have to meet." 29 In Kioa v West (1985) 159 CLR 550 the High Court held that the duty to accord natural justice is a duty to act fairly. In the normal course, a party to judicial proceedings (as are those in a tribunal) could expect to be apprised of the nature of the case sought to be made against it, and of the date and time fixed for hearing such as to give it a reasonable opportunity to meet that case and to advance its own. These statements are similar to those expressed by Professor de Smith and referred to earlier. Brennan J (as he then was) at 628 stated: "A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interest which the repository of the power proposes to take into account in deciding upon its exercise." 30 In relation to procedural fairness, Mason J stated in Kioa that the law had now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. Procedural fairness is a notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case (pp 454 and 455). 31 It is my view, particularly in light of the opposing South Australian decisions and O'Toole v Scott, that it is arguable that the court had a discretion to allow Mr White to present the case for Mr Portelli. I might add that so far this court has been prepared to allow Mr White to speak for Mr Portelli. The commencement of the hearing was the first time that Mr Portelli, the defendant, was informed that Mr White could not present his case. There were two proceedings listed on the one day in two separate courts. In order to determine whether there had been a denial of natural justice the court needs to examine whether there has been procedural fairness. The pre-existing appeal against an interlocutory decision of the Local Court has not been determined. The magistrate proceeded on the basis of Garbutt LCM's earlier decision. While the appellant's case on appeal may be weak, it cannot be said to be hopeless. The nature of this matter namely a denial of natural justice is not one which lends itself to summary judgment. The notice of motion filed 10 March 2001 is dismissed. Costs are discretionary. Costs follow the event. The plaintiff is to pay the defendant's costs. However Mr White has indicated that he is not charging any fee. 32 I make the following orders:

(1) The notice of motion filed 18 March 2002 is dismissed.

(2) The defendant is to pay the plaintiff's costs, if any. **********

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