Skrijel v Mengler and Ors [2003] VSC 128

Supreme Court of Victoria|2003-04-23|Before: NETTLE J

This is the 15th day of the trial. The plaintiff's case is close to completion. It remains only for the re-examination of Mr Berthelsen to be undertaken and for one further witness, a Dr Kahn, to be called. There may also be a couple of documents in addition to those already tendered upon which the plaintiff will seek to rely.

This morning upon the hearing resuming at 10.30 a.m., application was made ore tenus by Mr Edwards, a solicitor on behalf of the plaintiff, for an order under Rule 15.03 of the Rules of Court that Mr Berthelsen be appointed as the plaintiff's litigation guardian and thus, as it was put, be entitled to appear for the remainder of the trial on behalf of the plaintiff. Reference was made in support of the application to what was said by the Full Court of the Family Court in which concerned an application for the appointment of a next friend pursuant to Order 15, rules 14, 9 and 11 of the rules of the Family Court.

There was also tendered in support of the application a medical certificate signed by a Dr W.D. McKenzie, in which Dr McKenzie wrote: "This man" - which is to say the plaintiff - "is suffering from extreme anxiety. This is not surprising considering the task he has undertaken. He is jeopardising his own welfare by continuing and should withdraw from the action. Fortunately he understands this advice."

Rule 15.03 of the Rules of Court provides for the appointment of a litigation guardian on behalf of a person under disability and a person under disability is defined to mean "a minor or a handicapped person". "A handicapped person" means "a person who is incapable by reason of injury, disease, senility, illness or physical or mental infirmity of managing his affairs in relation to the proceeding."

Whatever may be the effect of Dr McKenzie's certificate, in my opinion falls far short of establishing that the plaintiff is incapable by reason of injury or otherwise of managing his affairs in relation to the proceeding. It may be enough to establish that the plaintiff is physically or psychologically incapable of continuing to act as his own advocate, but that is a different matter. It is one thing to act as an advocate and it is quite another thing to manage one's own affairs in relation to a proceeding. There is nothing in Dr McKenzie's certificate which establishes or even suggests that the plaintiff is not able to manage his affairs, in the sense of retaining legal representatives to continue to conduct the proceeding. For that reason alone I would not be prepared to accede to the application for the appointment of Mr Berthelsen as the plaintiff's litigation guardian.

In addition, as has been observed by Mr Santamaria of Queen's Counsel on behalf of the third defendant (in submissions in which the other defendants joined), the appointment of Mr Berthelsen as litigation guardian would not achieve the results apparently desired by the plaintiff. It would not allow Mr Berthelsen to appear as advocate for Mr Skrijel, for Rule 15.02(3) expressly provides that: "A litigation guardian of a person under disability shall act by a solicitor."

Moreover, as was also pointed out by Mr Santamaria, if Mr Berthelsen were appointed as litigation guardian, he would thereby become liable for the payment of costs in the event that the defendants are successful.

I add that I would not in any event regard Mr Berthelsen as appropriate to be appointed as a litigation guardian. He is far too closely associated with the case and too much interested in the outcome to be able impartially to make decisions as to whether or not it is in the best interests of the plaintiff that the litigation continue. It is much better that those decisions continue to be made by the plaintiff himself.

Notwithstanding the inapplicability of Order 15, however, it has been submitted by Mr Santamaria on behalf of the defendants that I should exercise the inherent jurisdiction of the court to authorise Mr Berthelsen to appear as an unqualified lay advocate on behalf of the plaintiff. The defendants are anxious that the proceeding be brought to an end as soon as reasonably possible and it is submitted on their behalf that it is now most unlikely that the plaintiff could obtain legal representation for the remainder of the trial, even if some further adjournment were allowed to him for that purpose. Reference is made to the attempts which the plaintiff has previously made to obtain legal representation for the purposes of the trial and the lack of success with which he met. The situation now is even more difficult because of the passage of 15 days of trial without the involvement of legal representatives on behalf of the plaintiff.

The court does have an inherent right in regulating its own proceedings to allow a person not being a lawyer to conduct a case on behalf of a party: see Hubbard Association of Scientology International v. Anderson[2] and Damjanovic v. Maley[3] per Stein JA. Nevertheless it has long been regarded in the higher courts as appropriate ordinarily to refuse to exercise the discretion in favour of allowing the appearance of non-qualified persons.

As Sir Robin Cook of the New Zealand Court of Appeal observed In Re G.J. Mannix[4]: "In general discretionary audience should be regarded as a reserve or occasional expedient for use primarily in emergency situations when counsel is not available or in straightforward matters where the assistance of counsel is not needed by the court or where it would be unduly technical or burdensome to insist on counsel." Even more to the point, Mr Justice Somers spoke in the same case of the exercise of discretion to grant leave being rare and most importantly, that the circumstances would be exceptional or unusual and their content would be modest.

Thus, although from time to time in matters of practice and procedure and in some matters which are not of great complexity, the court has permitted a litigant to appear by an unqualified agent, by and large the Court has refused to hear lay advocates. The court is 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. The reason lies not in the protection of any monopoly on behalf of the legal profession but in public interest: see for example, Abse v. Smith[5]:

This case is anything but simple. It raises complex issues of facts and law which require close consideration at a high level. It cannot be conceived of being the sort of case which was referred to by Stowe J as a simple matter of practice or procedure or an otherwise uncomplex matter. It is in one sense an exceptional case, because the matter, the plaintiff cannot afford to retain counsel or at least he has so asseverated several times from the well of the court, and in the past he has proved incapable of retaining counsel with whom he remains satisfied for more than a very brief period of time. Experience has shown that a proceeding conducted by a person unskilled in advocacy tends to last longer and cost more.

However, in determining whether to allow a lay advocate to appear, the court must have regard not merely to the position of the party for whom he seeks to appear but also to the other parties to the litigation. The interest of the defendants in having the proceeding dealt with without unnecessary delay and cost is one which must be borne in mind.

The conduct of the case to this point is enough to demonstrate the truth of observations so many times made as to the length and difficulty which is added to the conduct of litigation by persons representing themselves or being represented by persons who are not qualified in the conduct of litigation. And I have no doubt that if I accede to the application that Mr Berthelsen be granted leave to appear as lay advocate for Mr Skrijel, those problems will continue and probably will grow for the remainder of the trial. Accordingly, if I had received from the defendants any indication that they were opposed to the course suggested on behalf of the plaintiff, I think that I would have refused the application.

That, however, is not the position. Rather, I am faced with defendants united in their consent to the appointment of Mr Berthelsen as lay advocate for the plaintiff, for the reason that they conceive it to be in the overall interests of their clients that the matter continue uninterrupted, albeit under the control of Mr Berthelsen, to the conclusion of the hearing and determination.

In Galladin Pty Ltd v. Aimnorth Pty Ltd[6] which is referred to in Damjanovic, leave was granted for one defendant who was content to appear for himself to represent two other defendants when counsel appearing for the latter defendants was granted leave to withdraw upon the termination of his instructions. Perry J following O'Toole v. Scott held that he had discretion to permit non-legal representation if it were in the interests of justice and it appeared necessary or convenient to do so.

In granting leave for the one defendant to represent the others, His Honour observed:

"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] 3All ER 1034. But the McKenzie's friend has not, as I understand it, a right of audience, but only a right to advise and assist."

But his Honour was sufficiently impressed by the common interests of the parties in the litigation and the personal relationship between them to accede to the application.

In my view that case comes close to the facts of the present case. It differs, of course, inasmuch as Mr Berthelsen is not a party to the proceeding. But after the evidence he has given it cannot be gainsaid that he has a very real interest in the outcome of the proceeding and it is patent that he has a close personal relationship extending over many years with the plaintiff.

Given the attitude of the defendants, the fact that they do not seek to refute what is said by Dr McKenzie in his certificate, and what appears to me to be the rectitude of their submission that, unless I accede to the application there is a real likelihood that their clients may suffer more harm than if I allow it, I am swayed to the view that this is a case in which the circumstances are sufficiently exceptional to grant leave for a lay advocate to appear.

I will make an order in the exercise of the inherent jurisdiction of the court pro tempore that leave be granted to David Berthelsen to represent the plaintiff in this proceeding and I note that the effect of the order is that he will be authorised by order of the court so to represent the plaintiff within the meaning of section 315(1)(c) of the Legal Practice Act 1996.

[5] [1986] 1 QB 536 at p 545-546

Legal Practice Act 1996

At a glance

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Judgment (30 paragraphs)

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