These are proceedings under ss 39 and 40 of the Local Court Act 2007 (NSW) in which the Plaintiff, Mr Sinanovic, appeals from aspects of a decision of the Local Court on 11 July 2024 in which judgment was given against him for $65,246.85, including interest and court costs.
On 26 July 2024, the Local Court made a costs order against Mr Sinanovic.
The Local Court proceedings were brought against Mr Sinanovic by his former landlord for unpaid rent, an occupation fee which accrued after the lease came to an end but whilst Mr Sinanovic remained in possession, and approximately $5,000 to make good the apartment when he eventually left. Mr Sinanovic disputed his liability to the landlord, in large part because of a claim for an abatement of rent under a previous lease said to have arisen from water damage, which claim was rejected by the Local Court.
In the proceedings before this Court, Mr Sinanovic also seeks leave to appeal from other aspects of the Local Court decision which presumably is required given the very limited rights of appeal in s 39(1) of the Local Court Act 2007.
Mr Sinanovic is unrepresented. He was also unrepresented in the Local Court proceedings which entailed two full hearings interspersed with a successful appeal to the Supreme Court. Before that, Mr Sinanovic was unrepresented in proceedings before NCAT which his landlord brought to evict him from the apartment.
Sinanovic v Bone [2025] NSWSC 144 | Case summary | Zoe
On each occasion Mr Sinanovic was assisted before the Court by Maria Sinanaj who styles herself as a "lay advocate". There is no evidence that Ms Sinanaj has any legal training. Trained or untrained, she is not a "solicitor" as that term is used in the Uniform Civil Procedure Rules 2005 (NSW) r 7.1(1).
At each prior hearing before a court or tribunal, Ms Sinanaj has appeared for Mr Sinanovic with leave.
A grant of leave is necessary for Ms Sinanaj to represent Mr Sinanovic. The ability for one person to represent another in proceedings before a court is governed by the UCPR. UCPR 7.1 relevantly provides:
7.1 By whom proceedings may be commenced and carried on
(1) A natural person may commence and carry on proceedings in any court, either by a solicitor acting on his or her behalf or in person.
(1A) Despite subrule (1), but subject to subrule (5), the court may order that proceedings commenced by a natural person acting on behalf of another person pursuant to a power of attorney be carried on, on behalf of that other person, by a solicitor.
…
(6) A solicitor who is a person's solicitor on the record must hold an unrestricted practising certificate.
Special provisions are made for the representation of a person who is under a legal incapacity, which includes a person who is incapable of managing his or her affairs. UCPR 7.14 provides:
7.14 Proceedings to be commenced or carried on by tutor
(1) A person under legal incapacity may not commence or carry on proceedings except by his or her tutor.
(2) Unless the court orders otherwise, the tutor of a person under legal incapacity may not commence or carry on proceedings except by a solicitor.
An important aspect of having a tutor appointed to represent a person under a legal incapacity is that the tutor is formally a party to the proceedings and is potentially liable for the costs of the proceedings like any other party: Stokes v McCourt [2014] NSWSC 63 at [7] (McDougall J).
The tutor's potential liability for costs ensures that the costs implications of litigation may inform the decision to commence and carry on the proceedings and each forensic decision made in that process, including the allegations to be made against the other side. There is no application by Ms Sinanaj to be appointed as Mr Sinanovic's tutor. There is no application for any other person to be appointed as his tutor.
At the commencement of the hearing today, Ms Sinanaj made an application for leave to appear as a lay representative for Mr Sinanovic. The application was made orally. In support of the application, six Affidavits, or parts thereof, were read. The deponents of these Affidavits were, in equal measure, Mr Sinanovic and Ms Sinanaj. In addition, a one-page document was tendered. It is dated 28 December 2000 and entitled "Authority to Act". It contains the following text:
"Authority to Act
In the State of New South Wales
I, Hakija Sinanovic do hereby give my authority to Maria Sinanaj (whose
signature appears below) to act on my behalf in the matter of 2020/00215194
and any other related legal matters within the Courts of New South Wales."
Ms Sinanaj referred to a general power of attorney, apparently from Mr Sinanovic to her, but no such document was adduced into evidence. It matters not, because Ms Sinanaj accepted in her Written Submissions that a power of attorney did not give her a right to appear that she does not otherwise have.
The first thing to say about the six Affidavits is that they do not comply with the rules. Under s 17(3) of the Civil Procedure Act 2005 (NSW), a document that is filed with the Court is to be in the approved form where a form has been approved by the Uniform Rules Committee. Form 40 has been approved for affidavits. Form 40 requires the affidavit to state at the outset the deponent's address and occupation. Ms Sinanaj's Affidavits state that her address is "withheld". The Form 40 pro forma references to the deponent's occupation has been completely deleted. Mr Sinanovic's Affidavits are similar.
These are not trivial matters. The information goes to the identity of the witness in circumstances where the witness gives an oath or affirmation to the Court upon which the Court may be asked to rely, no less and perhaps especially in an interlocutory context.
The burden of the six Affidavits, which feature some repetition, is that Mr Sinanovic is in need of assistance to conduct these proceedings. Paragraph 2 of Ms Sinanaj's Affidavit dated 11 October 2024 is typical. It states:
"I am assisting the Plaintiff Hakija Sinanovic due to his impairment to prepare and represent himself in his matter as he has a disability with Parkinson's Disease, impaired hearing, illiteracy in the English language and an inability to use computer technology."
For the purposes of the application the landlord accepted that Mr Sinanovic has been diagnosed with Parkinson's disease. Other matters stated in the Affidavits, or parts of the Affidavits, which were read on the application for leave, include:
1. Registrars, Magistrates and a Justice of this Court have previously granted leave for Ms Sinanaj to appear for Mr Sinanovic;
2. Ms Sinanaj is Mr Sinanovic's former wife; and
3. Ms Sinanaj has an in-depth knowledge of the case.
On 10 February 2025, Ms Sinanaj filed Written Submissions in support of the application that she be granted leave to represent Mr Sinanovic at this hearing. It is a 12-page document. It gives a history of leave being sought and granted in proceedings relevant to this dispute. Of course, the fact that leave has been sought and previously granted, without knowledge of the precise circumstances and without any information about the evidence upon which those applications were made, does not assist me to decide this application today. It is to be decided in accordance with the relevant principles on the evidence that is before the Court.
Ms Sinanaj relies on Hodgson JA's judgment in Teese v State Bank of New South Wales [2002] NSWCA 219 essentially for the proposition that a non-lawyer may make an application for leave to represent another person.
Ms Sinanaj further submits that Mr Sinanovic has a need for representation which is consistent with the Affidavit evidence to which I have referred above. There are submissions about Mr Sinanovic's reliance upon Ms Sinanaj, including in relation to her knowledge of and previous assistance in this dispute. Ms Sinanaj asserts that she has been of assistance to the Court in the past. There is reference in the Written Submissions to some legal propositions, including some appropriate concessions.
Ultimately there is a list of 11 reasons why a grant of leave is appropriate in this case, as set out in paragraph 17 of Plaintiff's Written Submissions:
'Matters for the Court to consider in granting Maria Sinanaj leave as a Lay Advocate:
1. Maria Sinanaj was granted leave to appear and represent the Plaintiff at both Local Court of NSW hearings in case No. 2020/00315194 (being the Court below) with the Rehearing being the subject of this appeal. Ms Sinanaj was granted leave of the Court to appear as a Lay Advocate in the Plaintiff's First Summons Appeal hearing in case No. 2022/00101645.
2. The Plaintiff's disability (Parkinson's Disease) and his Special Needs. He has hearing difficulties. Without assistance his disability would impact his capacity to self represent and fairly present his case.
3. The Plaintiff is illiterate in the reading and writing of the English language. The Plaintiff is not knowledgeable in the use of computer technology.
4. The Plaintiff was not in a position to prepare his case himself. The Supreme Court of NSW was informed of this and thus allowed Ms Sinanaj as a Lay Advocate to appear with Leave at all the Mentions and prepare the case on his behalf.
5. The Plaintiff is not knowledgeable in the law.
6. The Lay Advocate (Ms Sinanaj) has in-depth knowledge of the case which would assist the Plaintiff and the Court given she has prepared, filed and served the necessary documents with relevant laws and cases.
7. The Defendant's lawyers at ClarkeKann Lawyers and their respective appearing Counsels have raised no objection to allow Ms Sinanaj to appear with Leave of the Court to assist Mr Sinanovic.
8. The Local Court of NSW and the Supreme Court of New South Wales have both granted Maria Sinanaj leave to appear for the Plaintiff at all the Mentions and Reviews during the legal processes.
9. Ms Sinanaj in her capacity appearing as a Lay Advocate has not brought any proceedings into disrepute.
10. If leave was not granted, the Presiding Justice would need to extend assistance to the self represented Plaintiff when required whilst maintaining his or her role of impartiality and the proper administration of justice.
11. If leave was not granted~ the Court would need to consider as to whether or not the Plaintiff is capable to proceed without a lay advocate and be satisfied the Plaintiff remembers what has been read to him and be in a proper position to be proceed with his matter.
Before turning to the principles which govern this application, the following two matters are to be emphasised: First, there is no suggestion that Mr Sinanovic cannot afford a solicitor. There is not a single line in the evidence adduced on the application to make good that suggestion were it to be made. There is nothing in the Written Submissions filed by Ms Sinanaj for Mr Sinanovic which relies upon impecuniosity as a reason why leave ought to be granted. The list of 11 matters does not refer to any such difficulty. The Written Submissions do refer, in paragraph 16, to the limited resourcing of Legal Aid but there is no suggestion (let alone any evidence) that Mr Sinanovic has sought Legal Aid or pro bono assistance.
It should also be observed that the underlying dispute as recorded in the reasons of the Local Court from which this application for leave to appeal is brought arose out of the non-payment of rent for a harbour-side apartment which was leased for $1,500 per week, or $1,300 per week (depending upon the underlying issue). The cost of making good the apartment arose from damage to the walls which occurred (or did not occur depending upon the underlying issue) when Mr Sinanovic removed his art collection at the end of the tenancy. Little can be inferred from these matters, but it is not to be assumed that the Plaintiff could not have legal representation if he chose to retain some lawyers.
I asked Ms Sinanaj during her oral submissions why Mr Sinanovic does not have legal representation. In response, she said:
"…Mr Sinanovic has had a lot of problems with lawyers. He's had terrible experiences of what lawyers have done to him where he has paid money, they have failed to take instructions and he has lost cases.
There is one particular issue that happened to him where a lawyer, a barrister, got struck off and finally admitted to him years later when Mr Sinanovic lost a case of what he had done. Whether or not he admitted it because he was dying of cancer as a means of, I don't know, trying to get some recollision (as said) before he goes, but you get disillusioned, your Honour.
I know it's very hard when ‑ self‑represented people, they're not getting lawyers because ‑ well, yes, financial can ‑ can affect people. We are in a cost of living crisis. It is getting harder. They are very expensive. But there are also the people lose faith in them.
If you have gone through ‑ if anyone has gone through experiences where a lawyer takes money from you and makes you lose a case that you know you would be successful, yes, it is very difficult to have faith."
The burden of the submissions and the evidence is that Mr Sinanovic chooses not to have a lawyer. He makes that choice because he has no faith in them as a class.
The second point to make is that the case in which Ms Sinanaj seeks leave to appear as a lay advocate, commenced by a Summons which she signed, makes some very serious allegations.
Having regard to the Plaintiff's Written Submissions which were filed on 29 January 2025 in relation to the substantive dispute in this Court, there are allegations about the conduct of the legal professionals acting for the Defendant, allegations about the Magistrate being biased, allegations that an application for a lease was "fraudulently altered" and an allegation about the conduct of counsel during one of the hearings in the Local Court. This is the very sort of case where legal representation is important.
Turning to the legal principles, the Court will only grant leave in an application like this in exceptional circumstances: Damjanovic v Maley [2002] NSWCA 230 at [78] (Stein JA).
The clearest statement of the principles for current purposes is the case of Teese v State Bank of New South Wales to which I have already referred. In both her written and oral submissions, Ms Sinanaj cited the judgment of Hodgson JA in which his Honour said that, despite the principle against a party having a lay representative, an application could be made to the Court for leave. There is no dispute about that elementary matter.
Ms Sinanaj did not include in her submissions (written or oral) that Hodgson JA was in dissent in that case. The majority judgment was given by Ipp AJA, with whom Giles JA agreed. More pertinently for the current application, Ipp AJA explained the important policy reasons for restricting the circumstances in which a lay representative will be permitted. At the forefront of those policy reasons is the important role that lawyers play in the administration of justice through their assistance to the Court to resolve the issues in the case. Solicitors are officers of the Court. Solicitors and barristers both owe their highest duty to the Court. Solicitors and barristers are subject to the highest ethical standards, jealously administered by their professional associations.
Importantly, as Ipp AJA highlights, legal representatives can bring to a case objectivity which is ultimately for the protection of the client, but also for the assistance the Court to ensure allegations are not made or brought before the Court unless there is a proper basis for doing so.
In Teese v State Bank of New South Wales leave was declined, despite what Hodgson JA said. The principal reason for declining leave was that the plaintiff sought lay representation not because of an inability to afford legal representation but because she "had some unhappy experiences with lawyers". At paragraphs [13]-[15] Ipp AJA said:
"13 I asked Mr White why it was that leave should be granted to him to represent Ms Teese and why it was that Ms Teese had not retained a qualified and admitted lawyer to represent her. The only reason that he advanced was that Ms Teese had had some unhappy experiences with lawyers, had an aversion to lawyers, and did not wish to utilise the services of one.
14 I do not regard that as a satisfactory explanation. There are thousands of admitted solicitors in this State and between 1500 and 2000 barristers who are members of the New South Wales Bar. It is not an appropriate answer, in my view, to say that there is no lawyer in this State who would be suitable and appropriate to represent Ms Teese.
15 The usual ground for granting leave to a person, not properly qualified, to represent a litigant is impecuniosity, that is, where the litigant, for financial reasons, cannot afford to pay a properly qualified lawyer. No ground on this basis was advanced and no evidence to this effect exists. In these circumstances, it seems to me, Ms Teese wishes to retain Mr White merely to indulge her prejudice against lawyers generally."
The application for leave in Teese v State Bank of New South Wales was a stronger application than the application that has been made to me today. There are three reasons for this. First, the application was made to have Ms Teese represented by Mr White, who was a non-practising barrister experienced in the law. Secondly, there is no suggestion that Ms Teese proposed to advance allegations of the very serious nature which Mr Sinanovic proposes to advance in these proceedings. Thirdly, there is no suggestion of a personal relationship between Ms Teese and Mr White which might otherwise undermine Mr White's objectivity, whereas Ms Sinanaj is Mr Sinanovic's former wife to whom he referred in one of his Affidavits as "my Antoinette".
Despite Ms Teese having a much stronger case, leave was refused for Ms White to appear for her.
Turning to apply these principles to Mr Sinanovic's case, subject to objecting to the serious allegations made against the Defendant's solicitors, the Defendant does not oppose a grant of leave to Ms Sinanaj. Nonetheless, it is a matter for the Court to decide whether leave ought to be granted in the interests of the administration of justice.
It may be accepted that Mr Sinanovic requires assistance to run this case. It may be accepted that he requires a representative. In that respect, Mr Sinanovic is no different to virtually every other person who comes to this Court. A case can be a difficult and complicated thing and Mr Sinanovic certainly has additional challenges, as revealed by the evidence.
The issue is whether there is anything in this case to demonstrate the exceptional circumstances which warrant the Court departing from the usual position that the representative must be a lawyer. Having regard to the important principles which underpin that position, including the public policy concerning the interest of the administration of justice.
The evidence, as explained by Ms Sinanaj's oral submissions, makes clear that there is nothing to prevent Mr Sinanovic from retaining a lawyer to conduct the proceedings in a way which conforms not only with the public interest in the proper administration of justice but, in all likelihood, with his own interests. There is nothing to prevent him from retaining a lawyer other than his own difficulty with lawyers.
As Ipp AJA pointed out in Teese v State Bank of New South Wales, there are tens of thousands of solicitors in New South Wales and thousands of barristers who, it might generally be assumed, would be more or less able to assist.
If it be the case that the refusal of leave means that the case has to be conducted without any representation for Mr Sinanovic, the Court will have to do the best it can, as will the Defendant. If it means that Mr Sinanovic has to give up the case altogether, so be it. In each instance, there may be prejudice to Mr Sinanovic, although in the second instance that would depend upon the merits of the case having regard to the usual risk as to costs. Any such prejudice is properly understood as the price Mr Sinanovic will have to pay to, in the words of Ipp AJA, indulge his prejudice against lawyers generally. Alternatively, Mr Sinanovic is able entirely to insulate himself from any such prejudice by hiring a lawyer.
Nothing submitted by Ms Sinanaj demonstrates exceptional circumstances which warrant a grant of leave in the face of the matters which I have set out above.
The application today is different to the application before Garling J previously heard in this Court in [2022] NSWSC 1474. Whilst the evidence before Garling J is unknown, his Honour's reasons for judgment make clear that the case his Honour had to consider involved a relatively simple issue about the first Local Court trial being conducted without the principal witness being permitted to give evidence. There is no suggestion that any of the serious allegations or allegations of the nature Mr Sinanovic now seeks to bring forward were an issue before Garling J.
Mr Haines appears for the Defendant and submits that costs of this application be payable on an indemnity basis. Costs are normally not ordered on an indemnity basis and I do not consider that there has been any relevant delinquency on the part of Mr Sinanovic which warrants a departure from the normal rule in this case. In particular, the evidence shows that Ms Sinanaj raised her representation with the Court through the Registrar at an earlier stage. The application for leave was made today in accordance with the directions made by the Court over the last few months. I also observe in this context that on previous occasions Ms Sinanaj has made an application for leave and was successful. Whilst the previous grants of leave do not provide a basis for a grant of leave today having regard to the evidence adduced today and the allegations sought to be made in these proceedings, it cannot be said that Ms Sinanaj has acted unreasonably by making the application to be Mr Sinanovic's lay representative. Therefore, I decline to order that the costs be paid on an indemnity basis.
Mr Haines also makes an application that the costs be paid forthwith. There is some attraction in that, specifically in circumstances where Mr Sinanovic has not paid the judgment of the Local Court which was pronounced on 11 July 2024 and which relates to rent unpaid from 2018 or thereabouts, albeit with interest. One can have sympathy for the Defendant having been kept out of the money and now having a costs order for which she will have to wait further. Nonetheless, the Defendant will be entitled to post judgment interest if she succeeds in these proceedings and in those circumstances, in the exercise of my discretion, I decline to make an order that the costs ordered above be assessed and paid forthwith.
I make the following orders:
1. The application for leave for Ms Maria Sinanaj to represent the Plaintiff is dismissed.
2. The Plaintiff pay the Defendants costs of the Notice of Motion dated 11 October 2024 and the oral application for leave for the Plaintiff to appear by a lay advocate, which costs include the costs of 22 October 2024 and 21 February 2025.
3. Stand the matter over to the Common Law Registrar on 8 April 2025.
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Decision last updated: 05 March 2025