Portelli v Goh

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT 1 HIS HONOUR: This is an appeal by way of summons pursuant to s69 of the Local Courts (Civil Claims) Act 1970 against a decision given by a magistrate in the Local Court. 2 The appeal with which I am now dealing is one which seeks to set aside a judgment made in favour of the respondent by Magistrate Sweeney on 24 September 2001. Originally the appellant sought to appeal against an earlier decision of Magistrate Garbett when that magistrate declined to add a defendant on the motion of the appellant before her. However events have overtaken the matter and the appellant no longer wishes to pursue the appeal against the order made by Magistrate Garbett on 16 August 2001. 3 The subject of the hearing before Magistrate Sweeney on 24 September 2001 involves a claim made by the present respondent for monies allegedly owing under a lease between the present appellant and another and the present respondent. In the event, her Worship entered a judgment in the sum of $51,939 which judgment sum included the claim for monies owing under the lease, interest, solicitors costs, subpoena expenses and disbursements. 4 In an amended summons bearing the filing date of 28 September 2001 the appellant set out the following grounds of appeal: "2. In respect of the judgment given in the Local Court on 24th September 2001. The magistrate was wrong in law on the question of representation for the appellant in the Local Court on 24th September. The appellant requested the magistrate to allow his friend to appear for him. The magistrate determined the request by referring to Pt37 of the Local Court (Civil Claims ) Rules. The magistrate was told but did not acknowledge that an inherent discretion exists for the magistrate to allow appearance by a person other than a solicitor or barrister. The magistrate asked the solicitor for the plaintiff if he objected to the defendant being represented by his friend. The solicitor for the plaintiff said he did object but gave no reasons. The magistrate refused to ask the plaintiff's solicitor the reason for his objection and refused the appellant's request. The magistrate was wrong in law because either. a) The magistrate did not believe she had a discretion outside the Rules and a discretion does exist despite Part 37 of the Civil Claims Rules . b) If the magistrate did exercise a discretion when she refused the appellant's request to be represented by his friend then the discretion was not properly exercised because the magistrate let the decision be made by the plaintiff's solicitor.

2. In respect of the judgment in the Local Court on 24th September 2001. Section 107(5) of the Justices Act 1902 provides that application for leave to appeal does not stay proceedings in the Local Court. Specific application for a stay must be made in the Supreme Court. In the Summons filed on 11th September 2001 the appellant asked the Supreme Court to stay the action pending the result of the Summons. The Supreme Court made no orders at the hearing on 24th September 2001 and adjourned until 8th October 2001. Section 107 is part of a new legislative scheme for appeals in civil matters from the Local Court to the Supreme Court. Under the previous legislation, it was the practice of the Local Court to consider the issue of the stay of proceedings pending appeal to the Supreme Court. Under the new legislation the request for a stay must be made to the Supreme Court. It was wrong for the Local Court to give final judgment knowing the request for a stay is shortly to be considered by the Supreme Court. The Local Court has exercised the jurisdiction given to the Supreme Court.

3. In respect of the judgment of the Local Court on 24th September 2001. The appellant has been misled by the Local Court. The information provided by the List Clerk that the trial was cancelled was accepted and acted upon by the appellant. On 24th September 2002 the magistrate took evidence from the list clerk and found that the information provided by the list clerk was wrong and misleading to the appellant. The plaintiff's solicitor was aware from 11th September 2002 that the appellant believed the trial cancelled and did not inform the appellant until 7:30 pm on Sunday 23rd September 2001 that the action was proceeding in the Local Court on 24th September 2002. The appellant was misled by the Local Court and the solicitor for the plaintiff. The Local Court placed unfair pressure on the appellant by denying representation and proceeding with the trial immediately knowing the appellant was not prepared. The judgment given by the Local Court on 24th September 2001 was a default judgment. Natural justice has been denied to the appellant within the terms explained in Jones v National Coal Board (1957) 2 QB 55. 'There is one thing to which everyone in this country is entitled and that is a fair trial at which he can put his case properly before the Judge…No cause lost until the Judge has found it so: and he cannot find it without a fair trial, nor can we affirm it'(p67)"

5 It is trite law that an appeal pursuant to s69 of the Local Courts (Civil Claims) Act 1970 is confined to the ground that the judgment of the Local Court is erroneous in point of law see Pace v Reid [2000] NSWSC 823 and Carr v Neil [1999] NSWSC 1263. 6 I turn to the grounds of appeal and shall deal with them seriatim ..- 1. That the magistrate in declining to allow Mr Bruce White to appear for the appellant failed to exercise any discretion in so refusing. 7 The transcript of the proceedings before Magistrate Sweeney on 24 September 2001 reveals the following:- "BENCH: Your name is? WHITE: Bruce White BENCH: Mr Reiner do you have any objections to Mr White speaking on behalf of Mr Portelli? REINA: Yes I do your Worship. BENCH: Mr White you are not a solicitor? WHITE: No. BENCH: What basis are you seeking to represent Mr Portelli? WHITE: Well I've been a friend of him to Mr Reiner's matter, I've been dealing with Mr Reiner all the way through this and I'm surprised 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 Reiner's basis for objection. I think I 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 problem 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 Reiner 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 Reiner objects, then I can't allow you to appear." 8 In the present appeal I granted leave to Mr White to appear. As may be seen from my reasons delivered on 8 October 2002 I did so on a very narrow ground - namely, that because of the physical malady presently suffered by the appellant Mr Portelli, I believed that justice demanded that Mr White be given leave to represent him. In so doing, I applied the decision of the Privy Council in O'Toole v Scott (1965) AC939. 9 I should note that my reasons of 8 October 2002 were given ex tempore. I had not time to research the matter in any depth. However, since reserving the present matter, my research has revealed that the question of allowing representation of a person who does not hold a practising certificate in this state has been dealt with by the Court of Appeal in two matters. The first being Damjanovic v Maley [2002] NSWCA 230 which was delivered on 19 July 2002 and the second Teese v State Bank of New South Wales [2002] NSWCA 219 which was delivered on 4 July 2002. I should add that at the time that Teese was delivered Damjanovic was reserved. In both Teese and Damjanovic the Court of Appeal confirmed that courts have a discretion to allow unqualified people to appear as advocates. However, the Court of Appeal stressed that the exercise of a discretion to allow an unqualified person to appear as an advocate is one which should be exercised with great care. 10 In Damjanovic, Stein JA reviewed the authorities on the topic in detail. In particular His Honour underscored the principles adumbrated by Mahoney AP in Scotts Head Developments Pty Ltd v Pallisar Pty Ltd (Unreported, Court of Appeal, 6 September 1994). There, Mahoney AP in dealing with this question stressed:- "1. The overall duty of a barrister or solicitor of the court is of important consideration. The court is entitled to place reliance on that duty and expect it to be met. The absence of a disciplinary code and duty to the court underlies the inappropriateness that permitting unqualified persons to appear apart from an exceptional case. 2. The protection of the client and the opponent is an important discretionary factor to consider, for example an unqualified advocate may cause loss to a party. 3 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." 11 In Damjanovic, Stein JA indicated that emergency situations can give rise to the leave being granted. See R v Schagen (1993) 65 A Crim R 500. In the appeal before this court it was the emergency situation arising from the appellant's physical disability which led me to give Mr White leave to appear in the matter. In Teese, Ipp AJA in delivering the majority judgment for the court observed as follows:- "The general rule in regard to the representation of parties involved in litigation that obtains in this country is that, where a litigant is not self-represented, he or she should be represented by a solicitor or barrister who is duly admitted, who holds a practising certificate or its equivalent, and is a member of the relevant professional body such as the Law Society or the Bar Association. There are very strong policy reasons that underly this practice. An admitted solicitor or barrister who appears on behalf of a litigant is an officer of the Court and as such is subject to the discipline of the Court. If such a person holds a practising certificate and is a member of the Law Society of the Bar Association, he or she is subject to the requirements as to professional conduct imposed by statute and the disciplinary regimes of those professional bodies. The power that the Court is then able to exercise over such a person, directly and indirectly, is foundation of the proper functioning of the administration of justice. If a person who is not subject to these disciplinary constraints is allowed to represent a litigant, this important procedural safeguard will be lost. There is another important policy reason underlying the rule that, ordinarily, only a person, admitted as a barrister or solicitor and a member of the relevant professional institution, holding the relevant practising certificate, should be allowed to represent a party in legal proceedings. That is the need for such a person to be objective and to be removed from the emotions that generally arise in the heat of litigation. Practising barristers are trained to deal with and to control these emotions. Restraint of this kind is applied by barristers in the daily course of their professional lives. This quality of objectivity in the practice of law is an essential part of the proper representation of clients by lawyers in the courts. Mr White does not fall into the category of persons who by training and experience have the quality." 12 It may thus be gleaned from this extract from Teese and the principles as reviewed by Stein JA in Damjanovic that the court's discretion to allow leave to appear by an unqualified advocate is one which will be very sparingly exercised. 13 It is of course of interest that in Teese the unqualified advocate who was not allowed to appear in the matter was none other than Mr White himself. In the submissions he made to me he made no mention at all of Teese's case even though it had only been delivered by the Court of Appeal on 4 July this year. This omission underlines the importance of those appearing before the Court as advocates being subject to the discipline and ethics of a professional body. In Mr White's case his failure to refer to Teese's case would, in the case of a duly qualified advocate, ex facie, involve a serious ethical breach. 14 However, the point that Mr White sought to make in this case is that the magistrate not only failed to exercise her discretion properly but in fact did not exercise any discretion at all. 15 As may be seen from the extract from the transcript before her Worship which I have set out above, her Worship did ask Mr White to point to authority which would allow him to appear in the matter. Mr White provided Her Worship with no such authority. 16 It should also be noted that Mr White did not reveal to the magistrate that he in fact had been admitted as a barrister. He merely sought to justify his appearance on the basis that he was a friend of the present appellant and had been dealing with the solicitor for the respondent during the proceedings. In Teese's case, Mr White had disclosed to the Court of Appeal that he was admitted as a barrister, albeit that he did not hold a practicing certificate. 17 The manner in which an appeal involving an allegation that a discretion had been wrongly applied in a court below, is subject of an unchallenged statement by the High Court of some sixty six years standing. In House v The King (1936) 55 CLR 499 at 504 - 505, Dickson, Evatt and McTiernan JJ said:- "The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonably or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the direction which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred…". 18 Here, even though it is arguable that the magistrate in fact failed to exercise a discretion but rather relied upon the Local Court Rules in disallowing an appearance by Mr White, the fact is that there was no material before her Worship which in light of the authorities I have cited, should have caused her to have exercised her discretion in favour of allowing Mr White to appear. For instance, there was nothing before her Worship which indicated an emergency situation had arisen (as it had before me) or that the appellant was so impecunious that he could not afford legal representation. As I have already noted, the only matter that Mr White put to the Local Court was that he was a friend of the appellant and that he had been assisting him throughout the proceedings. It follows from what fell from the Court of Appeal in Damjanovic and Teese that these factors would not be sufficient to cause a court to exercise its discretion in favour of allowing the appearance of an unqualified advocate. Accordingly, I am of the view that no error has been demonstrated on this ground and that therefore this ground of appeal must fail. 19 The second ground of appeal as contained in the summons is, as I understand it, that it was an error on the part of the Local Court to give final judgment in the matter, in a situation where a request for a stay relating to the earlier appeal (which has now been abandoned) was to be made shortly before the Supreme Court. In my view, no argument of merit was advanced to substantiate this ground and I am thus of the view that it like the first ground of appeal must fail. 20 Finally, the summons contains a ground that the appellant had been misled by the Local Court. As may be seen from the transcription of the ground above, the ground claims that the magistrate had taken evidence from the list clerk of the court and had found that the information provided by the list clerk was wrong and misleading to the appellant. In fact, what her Worship held is revealed by the transcript of her remarks:- "On the issue of whether the defendant had been misinformed that today's hearing has been vacated I took evidence from the list clerk who said that she had a conversation with Mr White who is assisting Mr Portelli and she did not tell him that the hearing had been vacated although she said that she thought that the Supreme Court matter which was due for mention today and was mentioned today as I understand it, would take precedence. No application was made before today to vacate the hearing date. Miss Potter was not cross-examined about her statement of the conversation with Mr White. Mr White has given evidence on the adjournment application that he believed that the hearing today would be vacated and as a result of that he did not organise witnesses. He spoke with Mr Reiner, the solicitor for the plaintiff, last night who said that so far as he was concerned as I understand it, the hearing was to go ahead today. The defendant has still not organised his witnesses. He said that they are busy people with jobs. That to me does not seem quite sufficient. It seems that some effort could have been made and no effort was made at all." 21 After making this finding the magistrate then announced that she would be prepared to take the evidence of the respondent's witnesses on that day and then give the appellant an adjournment, in order that he might call any witnesses which he wished to. Not only did the appellant decline her Worship's suggestion but, shortly afterwards, walked out of the court. 22 The magistrate then in my view quite properly proceeded to hear the matter ex parte. 23 In determining the matter ex parte, the learned magistrate had recourse to an affidavit of debt. There is no suggestion made before this court by Mr White or that that affidavit of debt was either incorrect or technically inadmissible, nor could there be. In other words her Worship followed the appropriate course of action in relation to what had become an ex parte application . It follows then that no error of law has been demonstrated on her behalf in relation to the third ground. 24 It follows that for these reasons the appellant has failed in his appeal before this court. The order of the court is that there will be judgment entered for the respondent plus costs. **********

Last Modified: 11/14/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.