Vice-Chancellor, University of New South Wales v Curtin and McGuirk; Curtin v Vice-Chancellor, University of New South Wales

CITATION: Vice-Chancellor, University of New South Wales v Curtin and McGuirk; Curtin v Vice-Chancellor, University of New South Wales (Interlocutory Applications) [2006] NSWADT 271

APPLICANT Vice-Chancellor, University of New South Wales RESPONDENTS PARTIES: Peter Curtin and Gerard Michael McGuirk APPLICANT Peter Curtin RESPONDENT Vice-Chancellor, University of New South Wales

CATCHWORDS: Costs - non party - disruption of proceedings - application to be assisted by McKenzie friend - refused

Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Freedom of Information Act 1989 Legal Profession Act 2004

McKenzie v McKenzie [1970] 3 All E.R. 1034 Kondos & Anor v Citadin Pty Limited [2003] NSWADTAP 7 Livesey v New South Wales Bar Association (1983) 151 CLR 288 Ebner v Official Trustee (2000) 205 CLR 337 Khera v Law Society of NSW [2005] NSWADTAP 29 Re JRL; Ex parte CJL (1986) 161 CLR 342 Antoun v R [2006] HCA 2; (2006) 224 ALR 51 Damjanovic v Sharpe Hume & Ors [2001] NSWCA 407 CASES CITED: Johnson v Johnson [2000] HCA 48 Curtin v Vice Chancellor, University of New South Wales [2005] NSWADT 186 Watson & Watson [2001] FamCA 1470 Collier v Hicks (1831) 2 B and ad. 663 at 669, 109 E.R. 1290 KT v KJ & TH (2000) FLC 93-032 R v Leicester City Justices, ex p Barrow and anor [1991] 3 All ER 935 R v Bow County Court, ex p Pelling [1999] 3 All ER 935 Damjanovic v Maley [2002] NSWCA 230; (2002) 55 NSWLR 149 R v E J Smith [1982] 2 NSWLR 608

APPLICANT University of New South Wales: P Singleton of counsel instructed by M Toomey, solicitor REPRESENTATION: RESPONDENT Mr Curtin: In person Mr McGuirk: In person

ORDERS: 1. The Tribunal orders Mr Curtin and Mr McGuirk to pay the respondent's costs of the proceedings held on 26 June 2006. Failing agreement as to the amount of those costs, they are to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004; 2. The Tribunal does not permit Mr Curtin to have Mr McGuirk assist him in these proceedings on a McKenzie friend basis.

REASONS FOR DECISION 1 The respondent agency has applied for its costs incurred in attending a directions hearing on 26 June 2006 which it submits was necessitated by the Tribunal having to adjourn prematurely a planning meeting which commenced at 10 am on 1 June 2006. The order sought is that the Tribunal award costs, jointly and severally, against the applicant for review (Mr Curtin) and his associate, Mr G M McGuirk. 2 The planning meeting is a preliminary procedure used in the Tribunal's Freedom of Information and Privacy jurisdictions. It is akin to a case conference. The objective is to seek to resolve or limit the dispute if possible. The procedure has a relatively informal character, and it is not recorded by a transcription service. It is held in a small conference room. While it is a proceeding open to be attended by members of the public, as a practical matter often there is only room for persons directly involved in the proceedings to attend. To this extent, it is similar to a Court proceeding that is held in the judge's chambers. 3 In this instance Mr Curtin is aggrieved by a determination of the respondent made under the Freedom of Information Act 1989 (FOI Act) refusing him access to certain documents. He also claims that not all documents covered by his request were identified by the respondent in its determination. 4 At the planning meeting on 1 June 2006 those present, apart from me as the presiding member and my Associate, were Mr Curtin, Mr McGuirk, the solicitor for the respondent (Ms Toomey) and the respondent's FOI officer, Ms Osborn. 5 In respect of this case, there had been two previous planning meetings, on 9 February 2006 and 30 March 2006. At the planning meeting on 30 March 2006 Mr Curtin advised that he wished to have Mr McGuirk assist him on a McKenzie friend basis (see McKenzie v McKenzie [1970] 3 All E.R. 1034). The respondent's solicitor, Ms Toomey, questioned the application. I did not deal with the application immediately. I indicated that I would reserve my decision. 6 At the beginning of the planning meeting on 1 June 2006 Mr Curtin referred to his desire to have account taken by the Tribunal of a draft Ombudsman's report, in which the Ombudsman dealt with complaints of maladministration made by Mr Curtin against the respondent and various of its senior officers. 7 Ms Toomey, in response, expressed concern over account being taken of this report, referring to its confidential nature and questioning its relevance to the issues in the present proceedings. Mr McGuirk interrupted Ms Toomey's presentation to correct what he saw to be misleading statements. Ms Toomey objected to Mr McGuirk speaking. I asked him to desist. I indicated that he did not have any right to speak. He refused to desist. I directed that he leave the room. He refused to do so. Mr McGuirk was behaving in a very heated way. 8 I formed the view that it would have been impossible to continue to conduct the proceedings in a satisfactory way and that there was a high likelihood of further disruption. Consequently, I terminated the proceedings. At this point, I indicated to Mr McGuirk that I regarded his conduct as reprehensible. I also indicated to the respondent that it was open to it to make a costs application. 9 I directed that any further preliminary proceeding be by way of 'directions hearing'. The point of converting the proceedings into a directions hearing was to have the matter continue in future in the more formal atmosphere of a large hearing room, and to have a transcription service present. 10 Subsequently the Registry arranged for the further hearing to be held on 26 June 2006. 11 Those present at the Bar table at the commencement of the hearing were Mr Singleton of counsel and his instructor, Ms Toomey, Mr Curtin and Mr McGuirk. The first part of the hearing was given over to the kind of matters that are usually dealt with in a planning meeting. Progress in resolution of the dispute was reported. Directions were made going to the issues that remain in contention. Mr Singleton, Ms Toomey and Mr Curtin spoke during this part of the proceedings. Mr McGuirk did not speak. 12 Mr Singleton then made an application on behalf of his client for the costs of this day of the proceedings. He noted, correctly, that the previous proceedings on 1 June 2006 had to be adjourned peremptorily. He said that the Tribunal had the power to award costs to protect itself against disruption of its processes. He submitted that the Tribunal's power to award costs was not confined to making of costs orders affecting only parties to a litigation. It was open to the Tribunal to make orders against other persons. 13 The Tribunal's power to award costs is governed, in the instance of proceedings for the review of reviewable decisions, by s 88 of the Administrative Decisions Tribunal Act 1977 (the Act) which provides, relevantly: ' 88 Costs (1) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs. (2) The Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis. (3) ... (4) In this section, costs includes: (a) costs of or incidental to proceedings in the Tribunal, and (b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.' 14 The Tribunal may order costs against a person who is not a party to proceedings: see Kondos & Anor v Citadin Pty Limited [2003] NSWADTAP 7. The expression 'special circumstances' is a wide one. There can be no doubt that conduct which is disruptive of proceedings, such that a court or tribunal is forced to discontinue them, is conduct for which an innocent party might reasonably expect to be compensated in respect of their costs. 15 Mr Curtin opposed any award of costs against him, basically for the reason that what Mr McGuirk did at the planning meeting on 1 June 2006 was done without his encouragement. As Mr Curtin saw it, Mr McGuirk had taken it upon himself to interrupt Ms Toomey's presentation and not to desist when called upon to do so. 16 He also drew attention to, what he saw as, the drawn out nature of the present proceedings. He said that the loss of the planning meeting should be viewed in the context of what he saw as a simple access application on his part, and that its loss was not significant in the overall context of the case. 17 Mr McGuirk also opposed any award of costs against him. He described the respondent as having been involved in a pattern of conduct over the past two years which had involved the active suppression of documents and corruption. He described their conduct as vexatious and abusive. These comments, the Tribunal interpolates, would appear to have as their background ongoing disputation between Mr McGuirk and the respondent over various access to documents applications made by Mr McGuirk under the FOI Act, with many of these cases having reached the Tribunal. According to Registry records, Mr McGuirk has filed 17 applications to which the respondent in the present proceedings, the University of New South Wales is respondent (6 have been finalised, 11 pending). He has 11 other applications in the Tribunal to which other agencies are respondents. 18 Mr McGuirk then said that the events of 1 June 2006 were not of his making. He blamed Ms Toomey, because she had, in his view, made inaccurate assertions to the Tribunal. He said he was acting in the public interest in seeking to ensure that the Tribunal was not mislead. He then made a 'counter application' for Ms Toomey to pay costs. He referred to my statement when discontinuing the proceedings on 1 June 2006 that it was open to the respondent to make a costs application. He submitted that this statement indicated prejudgement and bias. 19 Mr McGuirk then began to read from a document. It referred to Mr Curtin's earlier application for Mr McGuirk to be permitted to assist Mr Curtin in the proceedings on a McKenzie friend basis. He complained that he had expected me to have dealt with the McKenzie friend application made on the earlier occasion. As I understood this point, he was suggesting that this concern of his contributed to his conduct in speaking up, and interrupting, Ms Toomey. 20 In reply to these points, Mr Singleton noted that while Mr Curtin had disavowed any connection with Mr McGuirk's conduct, it was a question of fact for the Tribunal as to whether that disavowal should be accepted in the circumstances. As to the Tribunal's comment in relation to the possibility of a costs application, Mr Singleton saw this as no more than the giving of an indication as to a mechanism available to be used. There was no view expressed as to the fate of such an application. 21 I gave Mr Curtin and Mr McGuirk seven days in which to file any further written submissions. Mr McGuirk filed written submissions that went over similar ground to his oral submissions. Bias Objections (1) Personal Association 22 Mr McGuirk claims that there is a personal association between him and me of such a degree as to require me to disqualify myself. The respondent has mentioned the matter in its submissions but not gone so far as to move that I disqualify myself. 23 I should set out perhaps more fully than is already known to the respondent, the University of New South Wales, the extent of my personal association with Mr McGuirk. 24 One, in the years 1969 and 1970 I was a resident tutor in law at a residential college of the University of Melbourne, Newman College. The College, as best I can recall, had about 200 residents. Mr McGuirk was an undergraduate student who was also resident in the College during that time studying applied science. I had no teaching connection with him. So far as I can recall, I simply knew him by sight and had no other association with him. Two, in the years since 1990 I have lived in Sydney. My family and Mr McGuirk have as mutual friends a Melbourne family that occasionally visits Sydney. On two or three occasions in the early 1990s we were at social occasions together in Sydney involving that family. In 2003 we were among many guests at a birthday party for a member of that family held in Melbourne. We are acquainted with each other to that extent. 25 Applying the test formulated in the leading authorities such as Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-4 and Ebner v Official Trustee (2000) 205 CLR 337 at [6], I do not consider that a fair-minded lay observer fully informed of the objective facts might reasonably apprehend that I would not bring an impartial and unprejudiced mind to the resolution of the questions I am now called on to decide. See also Khera v Law Society of NSW [2005] NSWADTAP 29. The possibility of a perception of bias should be a real one, not a remote one: Ebner at [7]-[8]. The extent of our personal association is minor. There has never been any direct social relationship between us. 26 In further support of his argument that I should disqualify myself, Mr McGuirk refers to the fact, which I have previously made known to the parties in this matter, that I have chosen not to list myself to deal with any of the matters in which he is an applicant. I did this so as to avoid any debate relating to my prior acquaintance with him. That decision did not involve any conclusion on my part that had I presided I would be obliged, as a matter of law, to disqualify myself. There can be a degree of flexibility brought to bear when lists are being organised which may not be appropriate once the list has been set. As it happens I now find myself dealing with an application to which Mr McGuirk is a party that has arisen incidentally to a matter to which he was not a party, and where I am listed in the normal course of the listing process. 27 Once the list is set and, in particular, once the hearing of the matter has commenced, a member should not lightly accede to an objection that he or she not continue to sit. There are a variety of good reasons connected with the proper administration of justice for this stance. The importance of judges not removing themselves lightly once they have been listed to hear a matter was underlined by Mason J in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352. It is a core feature of the Australian system of administration of justice that 'parties do not (at least normally) have an entitlement to choose among the judicial officers who will conduct the trial': Antoun v R [2006] HCA 2; (2006) 224 ALR 51 per Kirby J at [35]. If members lightly accede to bias objections a litigant may be able to go out at least part of the way down the track to choosing the judge. Accordingly, a member should only stand down if the principles relating to disqualification properly applied require that course. (2) Comments made at the planning meeting on 26 June 2006 28 I said to Mr McGuirk when I discontinued the planning meeting that I regarded his conduct as reprehensible. I also stated that it was open to the respondent to make a costs application. 29 In my view, the first comment was one that was warranted in the circumstances. It was intended to indicate to all parties present my concern about the gravity of the disruption he had caused. It was designed to emphasise to the parties the degree of the Tribunal's displeasure with what had transpired and to signal to them a boundary that ought not be crossed. While Mr McGuirk is not a lawyer, he has mentioned that he is a law student. Moreover, as the Registry record of his activity in this Tribunal shows, he has now become experienced in the conduct of litigation. Robust comments from the bench occur from time to time in litigation. I think that a fair minded observer would take these factors into account in assessing whether in these circumstances it could be said that a reasonable apprehension of bias arises. In my view, it does not. 30 As to the second comment, as Mr Singleton for the respondent also noted, it is not uncommon for courts and tribunals to foreshadow the possibility of courses of action without that being indicative in any way of their outcome. Courts and tribunals will sometimes go further than simply referring to an available course of action and even express a 'provisional view' as to its outcome. It is clear that going as far as expressing a 'provisional view' will not, ordinarily, result in disqualification. It is a question, always, of degree. There may be situations where, viewed in context, the provisional view is more in the nature of a final, determined view, that has not involved due consideration, with the result that a reasonable apprehension of prejudgement arises warranting disqualification: see generally Antoun v R, cited earlier. As to a pattern of comments and rulings across the course of a hearing which may lead to a reasonable apprehension of prejudgement, see generally Damjanovic v Sharpe Hume & Ors [2001] NSWCA 407. 31 While the usual practice in the review jurisdiction of the Tribunal is that costs orders are not made, it is the case (a fact which one would expect to be known to experienced litigants in the Tribunal such as Mr Curtin and Mr McGuirk) that a costs order may be made where 'special circumstances' are demonstrated. Practice Note 12 refers to various forms of misconduct affecting preliminary proceedings in the Tribunal which may result in a costs order. Moreover, it is the norm that costs applications fall to be heard by the court or tribunal that dealt with the matter, and these applications will often refer to conduct that has occurred under the notice of the bench, and about which the bench has made comments in running or suggested some course of action. As to the importance of having some regard to the nature of the legal process in making the assessment, see, for example, Johnson v Johnson [2000] HCA 48 per Kirby J at [44]-[45], and [53]-[54]. 32 In my view a fair-minded lay observer, fully cognisant of the objective facts and with a general understanding of the Tribunal's powers and processes, would not have a reasonable apprehension of a possibility of bias such that I should disqualify myself. Assessment 33 Mr McGuirk was in attendance at the planning meeting on 1 June 2006. Mr Curtin acknowledges that he was there with Mr Curtin's blessing, and to render him assistance as needed. On one prior occasion involving the same applicant and a different access dispute with the respondent, Mr Curtin applied to have Mr McGuirk appear as his agent. The Tribunal, as presently constituted, refused that application: Curtin v Vice Chancellor, University of New South Wales [2005] NSWADT 186. 34 In my view, I had no choice but to adjourn the proceedings prematurely on 1 June 2006. Mr McGuirk had no right to speak. Those with a right of audience at the planning meeting were Mr Curtin personally, and the respondent through its legal representative, Ms Toomey. Others at the meeting could participate if invited to do so. These meetings depend for their effectiveness on the maintenance of order. They are conducted around a conference table in a small room. There are no spatial separations that may serve to assist the maintenance of order in larger, more formal hearing rooms. 35 Both Mr McGuirk and Mr Curtin are involved in several proceedings against the respondent in the Tribunal. Ms Toomey regularly appears in those proceedings on behalf of the respondent. It is plain, in my view, that Mr McGuirk has an acrimonious relationship towards the respondent, and that his attitude to Ms Toomey is a hostile one, as reflected in his comments about her in his submissions in reply to the respondent's application. 36 Mr McGuirk's claim to participate in the proceedings is based, in part at least, on the view that Mr Curtin has a right to be assisted by a McKenzie friend. In the ordinary courts, a McKenzie friend is only permitted to an unrepresented party for the limited purpose of giving advice and assistance, passing notes to that party, and the like. The status is a lesser one than that of advocate. It does not carry any speaking rights. A McKenzie friend would not have been at liberty to interrupt and speak in the way Mr McGuirk did at the planning meeting. 37 As to Mr Curtin's situation, I accept that he did nothing, in the context of the planning meeting, to occasion Mr McGuirk's outburst and disruption. However, Mr McGuirk was present at the planning meeting with his approval and with a view to giving him assistance. In these circumstances Mr Curtin can not escape responsibility for Mr McGuirk's behaviour. 38 Consequently, I grant the respondent's application. There is no basis for Mr McGuirk's counter application and it is rejected. 39 I note that the respondent has applied for the costs of its attendance on 26 June 2006, as distinct from the costs of its lost attendance on 1 June 2006. The costs of attendance on 26 June 2006 will, presumably, be higher, as counsel was engaged. McKenzie Friend Application 40 I will take this opportunity also to dispose of the McKenzie friend application. 41 The McKenzie friend has been described in these terms in Watson & Watson [2001] FamCA 1470 (Lindenmayer J): '2. … The case of McKenzie v McKenzie [1970] 3 All E.R. 1034 was to the effect that a litigant who appears before a Court in person is ordinarily entitled, if he or she so wishes, to have the assistance, in the Court, of a friend or assistant who may sit beside the litigant at the bar table for the purpose of taking notes, handling or cataloguing documents or exhibits, making quiet suggestions to the litigant as to how best to conduct the case, and generally being of assistance to the litigant in presenting his or her case to the Court, provided that that person does not disrupt the proper conduct of the proceedings. However, an important limitation upon the role and functions of a 'McKenzie friend' is that he or she may not (except, perhaps, in the most exceptional cases, and with the express leave of the Court) act as an advocate for the litigant in the proceedings. Collier v Hicks (1831) 2 B and ad. 663 at 669, 109 E.R. 1290 at 1292, and KT v KJ & TH (2000) FLC 93-032 at 87,509 cited.' 42 The Act allows a party to be represented by an agent: s 71(1)(b). Who may constitute an agent is left undefined. The term, as I see it, is a broad one, and is not limited to admitted legal practitioners. The existence of such a right to be represented by an agent does not, in my view, affect action by the Tribunal necessary to the orderly management and conduct of its business. Section 73 of the Act gives the Tribunal power, subject to the Act and the Rules, to determine its own procedures: s 73(1). This may, in my view, extend to not permitting a particular person to appear as an agent, or to limit the way in which a person appears as an agent. There is an express power in s 71(2) allowing the Tribunal to 'order that the parties to the proceedings before it may not be represented by an agent of a particular class for the purpose of the presentation of oral submissions to it (whether in relation to the whole proceedings or any part of the proceedings) if the Tribunal considers it appropriate to do so'. 43 The presence of s 71(2) in the Act shows a particular legislative concern with the possibility that the Tribunal may be affected in being able to do its work if it cannot discipline the presentation of oral submissions by agents. 44 There may be circumstances other than the presentation of 'oral submissions' where the Tribunal may wish to intervene; and I do not see that as inhibited by no express reference in s 71(2) to other circumstances. The general power given to the Tribunal in s 73(1) may still be invoked. 45 The Act makes no reference to the form of assistance given by a McKenzie friend. In my view, the Tribunal can permit participation of this kind in its proceedings. This is an aspect of the management of its procedures. 46 Allowing assistance of this kind is consistent with the access objectives that often underlie the creation of tribunals, and fits in with particular provisions of s 73, for example sub-s (4) which provides: '(4) The Tribunal is to take such measures as are reasonably practicable: (a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions, and (b) if requested to do so - to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings.' 47 It would be open to the Tribunal to permit as a 'measure' advancing these objectives allowing a party to be given assistance by a McKenzie friend. But it is not a right, and the introduction of such a person into the framework of the proceedings is to be approached with care. 48 Two of the more recent English cases are helpful for the consideration of an application to be assisted by a McKenzie friend: R v Leicester City Justices, ex p Barrow and anor [1991] 3 All ER 935 (CA, Lord Donaldson MR, Staughton LJ and Sir Christopher Slade); and R v Bow County Court, ex p Pelling [1999] 3 All ER 935 (CA, Lord Woolf MR, Brooke and Robert Walker LJJ). 49 In the Leicester City Justices case the Court of Appeal considered that there was no bar of any kind to an unrepresented party involved in civil proceedings being assisted by 'quiet and unobtrusive advice from another member of the public accompanying him as an assistant or adviser'. The Court of Appeal did not think that a court's inherent power to regulate its own proceedings extended so far as to exclude such a member of the public playing the role of assistant. On the other hand, the court might 'reasonably wish to know' that the litigant was to be assisted by an adviser and it could restrict the assistance of an adviser if there was evidence that Mr Curtin or the assistant might have had the intention of disrupting or abusing the process of the court. 50 Applying that thinking to the present case, Mr Curtin has a right, founded in procedural fairness considerations, to have Mr McGuirk assist him but it would be reasonable of the Tribunal to inquire what, if any, the role contemplated for Mr McGuirk would be. It would be open at that point to the other party or the Tribunal to raise any concerns it might have, for the purpose of considering whether to impose restrictions or prevent the arrangement from continuing. Applying the Leicester City Justices thinking therefore, the court or tribunal has a 'reverse leave' power, i.e. to withdraw from a party for cause the right to have an assistant present. 51 In the Bow County Court case the Court of Appeal did not, as I see it, go quite as far. It held that in public proceedings and non-private chambers proceedings, a litigant in person should be allowed the assistance of a McKenzie friend unless the judge was satisfied that fairness and the interests of justice did not require the litigant to have such assistance. As I see it, this formulation allows the question to be actively considered at the outset of the proceedings. However, the Court did make it clear that if the judge chose not to allow a litigant in person to be assisted in the way desired by the party, the judge should give reasons and emphasised that obligation to give reasons was owed to the litigant in person, not the proposed McKenzie friend. 52 The Court expressly distinguished private chambers proceedings. It referred to the intimacy of these proceedings and their avowedly confidential character. These considerations might militate against, or prevent, the attendance of any outsiders. While planning meetings in this Tribunal are open to be observed by the public, they do share many of the characteristics of private chambers proceedings. 53 The right of audience in the ordinary courts is confined to legal practitioners. Care is exercised in allowing persons other than legal practitioners to represent parties. The courts have two basic concerns: competence and unavailability of access to disciplinary sanctions if the non-lawyer agent engages in misconduct. See generally, Damjanovic v Maley [2002] NSWCA 230; (2002) 55 NSWLR 149. 54 Similar concerns can affect the decision whether to prevent a litigant in person being assisted by a McKenzie friend, and these concerns are not, in my view, confined to criminal proceedings. Street CJ referred in the context of criminal proceedings in R v E J Smith [1982] 2 NSWLR 608 at 614 to the way in which a McKenzie friend might subvert the trial process: '... - a person who may well, for one reason or another, be concerned to promote the case of the person whom he is advising by fair means or foul, by legal means or illegal, or by any device whatever, a person immune from disciplinary or effective control by the trial judge - is in my view fraught with the prospect of causing serious miscarriages in the orderly and regular conduct of criminal trials in this State'. 55 In my view there is a danger in any class of litigation - not just criminal trials - that the proposed McKenzie friend may be an agitator or promoter of a cause whose interests go beyond the mere giving of assistance to a friend in need on a particular occasion. In the Bow County Court case the proposed friend was a man who regularly rendered assistance to fathers in the family law courts, derived remuneration from this activity, and was the president of a fathers' rights group. Lord Woolf MR referred at 758 to the danger that such a person: 'will cease to conduct himself as an assistant and will indirectly run the case, using the litigant in person in the manner in which a puppet master uses a puppet. Such behaviour could provide a firm foundation for a judge not wishing him to be present as a McKenzie friend'. 56 In my view, therefore, the proper practice is for a litigant in person in the Tribunal to advise the Tribunal at the outset of the proceedings if he or she wishes to be assisted by a friend in the way contemplated for a McKenzie friend. The other party should be invited to indicate its attitude. The Tribunal should allow such assistance unless it has a well-founded concern that the participation of the friend might interfere with its ability effectively to conduct the proceedings. In that regard the nature of the proceedings will be relevant (different considerations may apply as between, for example, preliminary proceedings in the nature of case conferences or planning meetings and the formal hearing itself). 57 In the present circumstances, there could, I feel, be no objection to Mr Curtin or any litigant in person having the assistance of a person who conducted himself or herself in a quiet and unobtrusive way and had a detached relationship to the issues in controversy and to the other party to the proceedings. 58 However here, Mr Curtin has proposed as the McKenzie friend a person who is an active litigant in the Tribunal against the same respondent and is regularly dealing as a party in other proceedings with the respondent's legal representatives and FOI officers. There is a real risk that an assistant of this kind will engage in conduct of the kind to which Street CJ and Lord Woolf MR alluded. The planning meeting process is one which seeks to see to what extent a matter can be resolved without going to formal hearing. The introduction into the process of a person who is involved in direct litigation of their own against the opposite party is not conducive, as I see it, to the effective use of the planning meeting procedure. 59 In my view, even without the conduct that Mr McGuirk subsequently engaged in, it would have been counter productive to the effective conduct of the planning meeting to have permitted Mr Curtin to have as his assistant a person engaged in several disputes of his own of a similar character with the other party. If I am wrong to have regard to considerations of this kind (a view that could perhaps be drawn from the Leicester City Justices case) and any person chosen by the litigant in person should have been allowed to participate on a McKenzie friend basis, Mr McGuirk transgressed that role when he disrupted the proceedings and refused to leave the room so that order could be restored. 60 Accordingly, the Tribunal, in the exercise of its power to manage its proceedings (s 73), does not permit Mr Curtin to have Mr McGuirk as a McKenzie friend. Orders 1. The Tribunal orders Mr Curtin and Mr McGuirk to pay the respondent's costs of the proceedings held on 26 June 2006. Failing agreement as to the amount of those costs, they are to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004. 2. The Tribunal does not permit Mr Curtin to have Mr McGuirk assist him in these proceedings on a McKenzie friend basis.

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