CIVIL PROCEDURE - representation - by unqualified persons
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CIVIL PROCEDURE - representation - by unqualified persons
Judgment (2 paragraphs)
[1]
REVISED EX TEMPORE Judgment
This matter is listed before me for the purposes of further hearing of the plaintiffs' motion filed on 14 April 2020. Mr Nevell, solicitor, appears for the plaintiffs. Ms Madormo, who says she is a business broker and financial consultant, purports to appear on behalf of the defendant.
The plaintiffs' motion was heard in part by Ierace J on 26 May 2020. I refer to his Honour's judgment of 27 May 2020: Secured Lending 1 Pty Ltd v Luvnlife Consulting Pty Ltd [2020] NSWSC 637. The background to the matter is set out in that judgment and I will not repeat it in detail.
On 3 May 2019, the plaintiffs filed a statement of claim seeking orders for possession of land in Glenhaven and seeking leave to issue a writ of possession in respect of that land.
The plaintiffs allege that the defendant failed to comply with a loan agreement which had been varied and the plaintiffs had issued a combined notice of default and demand, demanding payment of the debt pursuant to s 57 of the Real Property Act 1900 (NSW) and s 111(2)(b) of the Conveyancing Act 1919 (NSW).
As noted by his Honour, the statement of claim was personally served on the director and secretary of the defendant, Stephanie Ruiz-Diaz, on 18 May 2019. No defence was filed.
On 5 June 2019, the plaintiffs appointed receivers and managers. Thereafter, the plaintiffs and the defendant entered into another deed of forbearance with Ms Ruiz-Diaz as guarantor. As again noted by his Honour (at [6]), there is some uncertainty as to whether the second deed was in fact executed on the relevant date.
In any event, the deed made provision for the manner in which the defendant could satisfy the debt. The plaintiffs agreed to forbear from taking enforcement action against the defendant and the guarantor if the defendant complied with its obligations under the deed.
A consent judgment, signed by Ms Ruiz-Diaz, was annexed to the deed and dated 13 June 2019. That is, there were signed orders by which the defendant consented to the orders sought in the statement of claim if there was a fresh event of default in accordance with the deed.
The plaintiffs assert that there was a fresh event of default. However, by the time they came to file the previously signed consent orders, the statement of claim had been dismissed for want of due dispatch.
The plaintiffs thus filed their motion seeking, firstly, orders setting aside the dismissal of the proceedings; and, secondly, judgment for possession of the land in accordance with the consent orders previously signed by Ms Ruiz-Diaz.
The motion was then listed for hearing before Ierace J on 26 May 2020. As his Honour noted, there was no appearance on behalf of the defendant. His Honour made orders setting aside the original dismissal of the proceedings. However, his Honour declined to hear the balance of the motion, instead, giving the defendant a further opportunity to appear and be heard and adduce such evidence as it might wish to adduce in response to the plaintiffs' application.
The matter was then listed before the Registrar on 1 June 2020. The Registrar made orders for the defendant to file and serve any motion it wished to file and any evidence on which it wished to rely. The defendant has not complied with those orders, although there may be some issue as to notice of the orders.
According to Mr Nevell, on 9 June 2020, he received correspondence from a Ms Madormo who purported to be a friend of the defendant and in some way represent the defendant. As I understand the position, Ms Madormo, on behalf of the defendant, seeks to challenge the earlier orders made by Ierace J and also seeks to raise various allegations about the conduct of the plaintiffs and the plaintiffs' lawyers and wishes to have a further opportunity to put on evidence as to these matters.
Prior to the matter coming before the Court today, she indicated that the defendant sought further time and asked whether it would be possible for the matter to be listed on a suitable date such as 19 June 2020 so that evidence on which the defendant apparently seeks to rely could be served.
Both Mr Nevell and Ms Madormo appear only by telephone. That is understandable, having regard to the current restrictions. However, at the commencement of the hearing today, I asked Ms Madormo as to the basis on which she was appearing. She is not a solicitor. As far as I can ascertain, she is a business broker who is endeavouring to assist the defendant. She says that the defendant is at home - I take that to mean Ms Ruiz-Diaz - and is suffering from health issues.
In order to determine whether I should grant leave for Ms Madormo to appear, I asked her about the basis on which she was appearing and what she wished to say. She stated (I am not sure whether this is her assertion or an assertion of the defendant) that the defendant had been bribed by the plaintiffs and the plaintiffs' lawyers to enter into a new deed. She raised allegations about the conduct of the plaintiffs and their lawyers. She said she is referring or has referred the matter to ASIC.
I apprehend from what she said that the defendant wishes to raise very serious allegations about the conduct of the plaintiffs and their lawyers.
Mr Nevell, on behalf of the plaintiff, said he would not oppose a short adjournment to allow the defendant to serve its evidence.
In the circumstances, the further hearing of the plaintiffs' motion filed 14 April 2020 is adjourned until 19 June 2020 (being one of the dates requested by the defendant). Costs will be reserved.
Having said that, whilst I heard from Ms Madormo for the purposes of understanding what the defendant sought, I would not grant leave to Ms Madormo to appear on behalf of the defendant.
In general terms, it is necessary for the efficient and proper conduct of litigation that parties be represented by properly qualified practitioners or appear themselves. The reason for this is that legal practitioners are bound by certain ethical responsibilities and duties. The Court can generally be satisfied that statements made by legal practitioners to the Court are made with a proper foundation.
Of course, the Court has a discretion to control its own proceedings and can grant leave to a non-lawyer to appear on behalf of a litigant: Damjanovic v Maley (2002) 55 NSWLR 149; [2002] NSWCA 230 at [33] and [37] ("Damjanovic"); Abse v Smith [1986] QB 536. Further, as set out in s 14 of the Civil Procedure Act 2005 (NSW), the Court may dispense with any requirement of the rules of Court if satisfied that it is appropriate to do so in the circumstances of a particular case.
I accept that it may be appropriate to permit representation by a layperson in exceptional circumstances, particularly if it is necessary to ensure that all issues are properly brought before the Court and that the conduct of the case is undertaken in an efficient and expeditious manner. However, again, as was emphasised in Damjanovic, it is generally undesirable to allow a litigant to be represented by someone other than a legally qualified practitioner.
The reason that it is generally undesirable has been highlighted this morning. Without identifying any foundation for the statements, Ms Madormo has made serious allegations about the conduct of the solicitors for the plaintiffs and the plaintiffs. She has not distinguished between conduct which the defendant may attribute to the plaintiffs and their lawyers. At least on the face of the documentation I have seen, that is, the court file and the earlier orders and judgments, there is no basis for the assertion that the solicitors are involved in some form of bribery of the defendant.
Such a statement would not be permitted from a legally qualified practitioner, having regard to the duties of solicitors to the Court and their ethical responsibilities, unless the solicitor had satisfied himself of the existence of a proper evidentiary foundation for such a statement.
During the course of these reasons, Ms Madormo interrupted, threatening to terminate her telephone link, in essence, suggesting that she was not going to stay on the line and listen, that I was being unfair and that it was a one-way street and would be appealing immediately.
Indeed, during the course of this sentence, she again interjected, quibbling with my use of the phrase, "threatening to terminate the link" and expressing her views as to my observations.
Ms Madormo's conduct is a good example of why the Court should not generally permit non-qualified persons to appear, particularly in the current circumstances in which persons may appear by telephone.
In any event, as I have said, the matter has been adjourned until 19 June 2020. It will be a matter for the judge who hears the matter on that day as to whether leave should be granted to anyone (other than the defendant or a legal representative) to appear.
I would only strongly suggest to the defendant that if there is a basis on which it wishes to oppose the entry of the consent orders, and I hasten to add, I do not know whether there is, it seek proper legal representation or correspond directly with the solicitors for the plaintiff so that the matter may proceed in a proper manner on the next occasion.
[2]
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Decision last updated: 12 June 2020