COURTS AND JUDGES - Bias - Whether Magistrate's apparent asperity in dealing with party's application to appear by unqualified representative indicative of bias - Discretion - Whether Magistrate erred in exercise of discretion in refusing to allow party to appear by unqualified representative - Judge did not err in holding that error not established - Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, applied; Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, referred to.

1 This is an appeal from a judgment given in the Common Law Division. The appellant's claim was for judicial review of a Magistrates' refusal to allow the appellant to be represented before the Magistrates' Court by someone who was not admitted to practise. An Associate Judge summarily dismissed the claim. The appellant appealed to the judge below and the judge was persuaded that the Associate Judge erred in dismissing the claim. But the judge held that the Magistrate was not in error in refusing to allow the appellant to be represented by a layperson.

2 According to the weight of authority, the appeal is an appeal from a judgment or order in an interlocutory application and so may only be brought with leave.[1] None has been sought or granted and, accordingly, on one view of the matter, the appeal could be struck out as incompetent. But, since the point was not taken at any time before the hearing of the appeal, or argued at any length, I consider that (in the particular circumstances of this case), if leave be required, it should be granted.

3 Section 100(6) of the Magistrates' Court Act 1989 provides that:

(6) A party to a civil proceeding (including an arbitration) may appear -

(a) personally; or

(b) by a legal practitioner or other person empowered by law to appear for the party; or

(c) in the case of a cause of action for a debt or a liquidated demand, by a person in the exclusive employment of the party who is authorised in writing to appear for the party.

4 The judge held that, upon its proper construction, s 100(6) prohibits a person appearing by an agent in a civil proceeding unless the agent is a legal practitioner, otherwise empowered by law to appear or, in the case of a cause of action for a debt or a liquidated demand, the agent is in the exclusive employment of the party and is authorised in writing to appear for the party. The judge further held that, for the purposes of s 100(6), 'empowered by law to appear for the party' means specifically empowered by law to appear. Hence, the judge concluded, the mere fact that an agent is appointed by a party under a power of attorney is not enough to render the agent 'empowered by law' to appear for the party within the meaning of the section. As the judge explained:

The words 'empowered by law to appear for the party' (emphasis added) do not mean empowered (in the sense of 'authorised') by the party to appear on his or her behalf. Although a person may appoint an attorney to do a great many things on his or her behalf, that does not include a thing for which specific provision is made that it be done by specified persons or categories of persons. An appearance in the Magistrates' Court of Victoria on behalf of a party is one such thing. In specifying who may appear in court on behalf of a party, s 100(6) operates to limit representation to those categories of persons.

The limiting nature of s 100(6) is consistent with both the text and context of s 100(6), and with its purpose.

The text of s 100(6) is not consistent with there being an open-ended permission for parties to nominate persons who are not legally qualified to appear for them. The fact that paragraph (c) makes provision for employees to appear for employers in certain types of civil proceedings indicates that the provision as a whole does not otherwise allow such persons to appear. Had the legislature intended to do what Mr Waddington contends for, it would not have been necessary to enact paragraph (c). If Mr Waddington's construction were adopted, any employer could simply authorise any employee to appear on its behalf and would have no need to rely on the statutory permission granted by paragraph (c). Section 100(6) would be redundant.

Furthermore, the purpose of s 100(6) is not advanced by Mr Waddington's construction. In my view, the purpose of s 100(6) is to ensure that only legal practitioners and certain very limited classes of non-lawyers are eligible to appear for parties in civil proceedings in the Magistrates' Court. While Mr Waddington may point to good public policy reasons why non-lawyers ought to be able to appear for parties in legal proceedings,[2] there are equally if not more compelling reasons why the Parliament might legislate to prevent any person nominated by a party from appearing for that party in court. It is not the function of this court to rehearse reasons why the legislature might wish to place limits on who can appear in civil proceedings in the Magistrates' Court. However, I observe that legal practitioners have ethical obligations arising from their privileged position in the administration of justice and owe special duties to the courts, the proper exercise of which is important to the administration of justice.

This is reflected in s 2.2.2 of the Legal Profession Act 2004 (Vic), which prohibits a person '[engaging] in legal practice' unless the person is a legal practitioner. Section 2.2.2.(f) creates an exception to this rule where a person represents another person in a proceeding before a court or tribunal 'if the person is so authorised by or under a law of this jurisdiction, or has leave of the court or tribunal'. Mr Waddington submits that appearing in the Magistrates' Court on behalf of a party without charging a fee does not involve engaging in legal practice. I disagree. The fact that representing a person in a court or tribunal in specified circumstances is exempted from the prohibition in s 2.2.2.(1) shows that representing a person in court does constitute engaging in legal practice for the purposes of the Legal Profession Act. It involves the provision of legal services, that is, the carrying out of work of a kind done in the ordinary course of legal practice.[3] It is the character of the work carried out that is important. Whether the person is paid for the services provided is of no moment.

The purpose of s 100(6) is quite plainly to regulate who may appear in civil proceedings in the Magistrates' Court. If it were the case, as Mr Waddington submits, that a party could simply nominate a person to appear on his or her behalf (with or without a power of attorney), s 100(6) would have no work to do.

The words 'empowered by law' in s 100(6) do not open a window for any person chosen by a party to assert a legal entitlement to appear for that party in court. I reject Mr Waddington's submissions on this question.[4]

Ground 1: Construction of s 100(6)(b) of Magistrates' Court Act 1989

5 Under the heading of Ground 1, the appellant contended that the judge erred in the construction of s 100(6)(b) by regarding it as proscriptive. He argued that the section serves a purely permissive function of enabling legal practitioners and others empowered by law to appear for parties in civil proceedings, and thus that it does not restrict the ways in which a representative may be so empowered. According to the appellant, that was emphasised by the fact that although, as originally drafted, the Bill for the Magistrates' Court Act 1989 restricted appearances in arbitration proceedings to parties in person, after Parliamentary debate the restriction was modified to allow for a body corporate to appear in an arbitration proceeding by an approved agent and for any other party to an arbitration proceeding to appear by an approved agent if it appeared to the court that that was necessary.[5]

6 I do not accept the argument. Although s 100(6) is permissive in that it affords a party a right to be represented by a layperson in specified circumstances, it is also proscriptive inasmuch as it limits the range of laypersons on whom it confers that right of audience ─ to laypersons empowered by law to appear for a party.

7 A layperson appointed under power of attorney is not thereby empowered by law to appear for the party. In effect, s 2.2.2. of the Legal Profession Act and s 100(6) of the Magistrates' Court Act combine to produce the same result as was previously achieved by the combined operation of s 111 of the Legal Profession Act 1958[6] and s 100(6) of the Magistrates' Court Act (except that under s 111 of the Legal Profession Act, the right conferred was to appear as a solicitor or otherwise in the circumstances provided for in s 100(6)). As authority shows, that did not confer a right on a layperson to appear on behalf of a party in any other circumstances.[7]

8 The appellant argued that the construction of s 100(6) for which he contended derived support from s 42 of the Justices of the Peace Act 1865, from which s 100(6) derives. Section 42 of the Justices of the Peace Act 1865 stated that:

Every such complainant may appear either personally or by his counsel or attorney or by any person in his exclusive employment duly authorised by writing in that behalf.

9 I do not accept that argument either. So far from supporting the appellant, an informed understanding of the provenance of s 100(6) shows more clearly than would otherwise be the case that s 100(6) does not authorise a layperson to appear on behalf a party except in the particular circumstances which it identifies.[8]

10 The appellant contended that, inasmuch as the Supreme Court Act 1986, the County Court Act 1958 and s 25 of the Magistrates' Court Act 1989 are silent as to rights of representation, they imply that appearances by lay advocates before those courts are largely governed by the discretion of those courts.

11 Up to a point, that is so. As Gowans J observed in Hubbard,[9] in relation to an earlier form of the relevant legislation:

The true position would appear to be that the general rule is that any court can, in the exercise of control over its own proceedings, allow itself to be addressed in a proper case by any person it considers a proper person to be allowed audience.

12 As J D Phillips J more recently emphasised, however, in Cornall v Nagle,[10] that does not mean that the existence of the discretion confers a 'right of audience':

Before leaving s111,[11] I mention again the right of audience, dealt with in Hubbard Association.[12] This attracts special considerations. Appearance in that sense is, of course, to be distinguished from the formal entry of an appearance, signifying submission to jurisdiction. In some jurisdictions the right of audience is dealt with by legislation; see, for example, the Magistrates' Court Act 1989 s100(6) and compare O'Toole v Scott,[13] Ex parte Brodsky; Re McKeowan.[14] In the superior courts, the right of audience does not extend beyond the party or a practitioner acting for him; only those admitted and enrolled have a 'right' to audience, although a party may always be heard on his own behalf. But, in addition, the courts retain a discretion to allow a party to be heard by an unqualified agent; that is not as of right, but by leave: see Hubbard Association in the Full Court. There is, moreover, the so-called 'McKenzie friend', an unqualified person who may be permitted to attend in court with the party in person, sitting with him, taking notes and affording assistance: see McKenzie v McKenzie.[15] That assistance, too, may be allowed in the exercise of discretion, although it has been held that the discretion ought in the ordinary case be exercised when application is made: R v Leicester City Justices; Ex parte Barrow.[16] But the existence of this discretion does not in any way extend the 'right of audience': Barrow.[17] Moreover, both the discretionary power to hear an unqualified agent as spokesman for a company and the discretionary power to allow some unqualified assistance to an individual, plainly relate only to the manner in which a litigant, otherwise appearing in person to conduct his own case, may be permitted to proceed. They are therefore relevant only where the litigant does seek to represent himself, or, in the case of a company, to be heard without legal representation.

13 So it remains under the current legislation. Section 2.4.2 of the Legal Profession Act 2004 (Vic) confers on Australian Legal Practitioners a right to engage in legal practice. It thereby confers on Australian Legal Practitioners a right of audience before Victorian courts. When read, however, with s 2.2.2 of the Act, it also has the effect of restricting the right of audience before the Magistrates' Court to Australian Legal Practitioners and the other persons mentioned in s 2.2.2. Hence, as the judge observed, in effect s 2.2.2 of the Legal Profession Act 2004 (Vic) prohibits a person '[engaging] in legal practice' unless the person is a legal practitioner or, perforce of s 2.2.2(f), unless 'the person is so authorised by or under a law of this jurisdiction, or has leave of the court or tribunal'.

Ground 2: Misconstruction of the substantive issue

14 Under the heading of the second ground of appeal, the appellant argued that the judge misconstrued the substantive issue as one of 'simple agency'. He contended that, because the appellant's representative was appointed under power of attorney, and because a power of attorney is recognised and authorised by law as a proper means of appointing an attorney in a manner which makes the authority of the attorney binding as against third parties,[18] it must follow that the appellant's representative was empowered by law to appear on behalf of the appellant within the meaning of s 100(6).

15 There is nothing in that point. Appointment of a lay person under power of attorney is incapable without more of changing the layperson into an Australian Lawyer or otherwise bringing the person within the right of audience conferred by s 100(6) of the Magistrates' Court Act. As the judge said, whatever the means of appointing a lay attorney, and whatever authority a lay attorney may have to bind his appointor vis a vis third parties, the appointor is not empowered by law to confer a right of audience on the attorney and, consequently, the appointment cannot of itself afford a right of audience.

16 Under the heading of Ground 3, the appellant contended that the judge erred in holding that the action of an attorney in appearing on behalf of a party in the Magistrates' Court amounts to the attorney carrying on legal practice.

17 I do not consider that the judge erred in the manner alleged. Possibly, an occasional honorary appearance by a lay spokesperson on behalf of a party would not without more rise to the level of engaging in legal practice. There is some support for that idea in the observations by Gowans J in Hubbard that, so long as a lay spokesman did not purport to appear as a solicitor, he might not be said to be acting as a solicitor. But, as the judge said, the idea of 'engag[ing] in legal practice' is considerably broader than that of 'acting as a solicitor'. And that is borne out by the implication which derives from s 2.2.2(3) of the Legal Profession Act 2004 (Vic) that, but for its provisions, such an appearance could amount to engaging in legal practice within the meaning of s 2.2.2(2)(f).

18 Moreover, even if such an appearance did not rise to the level of engaging in legal practice, that would not avail the appellant in this case. It remains that a lay advocate has no right of audience other than is conferred by statute or in the exercise of the court's discretion. Accordingly, whether or not an appearance by an occasional lay advocate amounts to carrying on practice, that kind of lay advocate's entitlement to appear remains at the court's discretion.

19 The appellant's fourth ground of appeal was originally that the judge erred in holding that the Magistrate's exercise of discretion to decline to allow the lay representative to appear was not a manifestation of bias but rather of rudeness and abruptness. During the course of argument, he abandoned that contention. Later, however, he made a number of submissions seemingly to the effect that what he had earlier described as 'apparent bias' was evidence that the judge erred in holding or finding that the Magistrate's discretion to refuse the appellant's representative leave to appear had not miscarried.

20 In case it matters, I reject that submission for three reasons. First, the judge did not find that the Magistrate was rude and it was not contended that the judge was in error in declining so to find.

21 Secondly, although the judge did find that the Magistrate treated the appellant abruptly, her Honour also held that there was good reason for the Magistrate to do so. As her Honour explained:

Like the Associate Judge, I find that the magistrate treated the Mr Waddington abruptly. He dealt with the request for Mr McDonald to appear for Mr Waddington very shortly. However, having made the decision that Mr McDonald could not appear, the magistrate sought to give Mr Waddington an opportunity to present his case (by offering the assistance of the court and permitting Mr McDonald to assist Mr Waddington as a McKenzie friend) or to apply for an adjournment. Having regard to the pressures faced by magistrates in running a busy court, the restrictions on representation in s 100(6) and the measures available to the court to assist unrepresented litigants, the steps taken by the magistrate were unremarkable.[19]

22 Thirdly, the matters on which the appellant relied were not indicative of bias. As the judge put it:

The two step test in Ebner[20] required Mr Waddington to identify what he says might have led the magistrate to decide the question of representation and/or the question arising in his civil claim other than on its legal and factual merits and then to show a connection between that matter and the deviation from deciding the question on the merits. For the first step, Mr Waddington points to rudeness, abruptness and an unwillingness to listen. However, Mr Waddington has made no connection between what he perceived to be rudeness or abruptness and a predisposition or prejudice against his case for reasons unconnected with the merits. Unfortunately, judicial officers are sometimes rude or abrupt and may seem to be unwilling to listen to everything the litigant wishes to say. That may well be a function of 'grumpiness' and a burdensome workload rather than a sign of predisposition or partiality. As a general rule, it would not, without more, give rise to an apprehension that the judicial officer might not bring an impartial mind to the resolution of a question he or she is required to decide.

Mr Waddington also relies on the manner in which the magistrate dealt with the question of costs. The costs order was made, as the Associate Judge found, in accordance with the principle that a party will usually be entitled to their costs thrown away as the result of an adjournment sought by another party. The fact that Mr Waddington was ordered to pay the defendant's costs thrown away could not, in and of itself, constitute bias or give rise to an apprehension of bias. Furthermore, the fact that the magistrate did not accede to the application for an order that costs be reserved is also unremarkable, given the circumstances in which they were incurred.

Mr Waddington contended that the amount of the costs order was exorbitant and that this displayed bias. However, he did not put before the Associate Judge or before this court, any material to show that the costs awarded were in fact out of the ordinary.

In any event, whether or not the costs were out of the ordinary, I do not consider that the amount of costs awarded is evidence of bias. The fact that the magistrate accepted without question the figure put forward by the solicitor for the second respondent might be evidence of impatience or unreasonableness, but so much would not amount to bias. The magistrate asked the solicitor for the second respondent what his actual costs were, he received an answer, and he fixed the costs in that amount. The magistrate did not, in my view, display any partiality or predisposition in making the costs order and a fair-minded lay observer would not have apprehended that the magistrate might not have brought an impartial mind to the resolution of that question.

In my view, there is no basis upon which an allegation of actual bias could be made out based on what occurred at the hearing in the Magistrates' Court. Furthermore, and a fair-minded lay observer would not have apprehended that the magistrate might not have brought an impartial mind to the resolution of that question or to the adjudication of the civil claim brought by Mr Waddington.[21]

23 Like the judge, I consider that there is nothing about the order for costs which is indicative of bias and, although it is always a question of fact and degree whether a judicial display of bad temper or intolerance crosses the line into the area of what is unacceptable, the law assumes that the fictitious bystander (by reference to whose perceptions these things are meant to be judged) is endowed with a modicum of maturity and discernment. Hence, as the High Court observed in Johnson v Johnson:[22]

The bystander would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers. The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted. The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.

24 Although not mentioned as such in the Notice of Appeal, in oral argument the appellant advanced a number of additional submissions, with extensive reference to what he described as supporting authority,[23] in substance to the effect that the proviso to Chapter 29 of Magna Carta (to the extent that it continues to apply in this State by reason of the Imperial Acts Application Act 1922 or the Imperial Acts Application Act 1980), and the common law right to a fair trial,[24] so informs the construction of s 100(6) of the Magistrates' Court Act (and the proportions of a Magistrate's discretion to refuse a lay agent appointed under power of attorney leave

24 to appear on behalf of his appointor) as to show that the Magistrate erred in refusing the appellant's agent leave to appear.

25 I reject the argument. The judge dealt directly with the Magistrate's exercise of discretion in the following sections of her Honour's reasons:

In this case, it was put to the magistrate that Mr McDonald had a right to appear by reason of the power of attorney. The magistrate rightly rejected that submission. His Honour did not give further consideration to whether he could or should hear from Mr McDonald. However, although Mr Waddington informed him that he was under 'medical supervision for anxiety, depression and frustration', there was nothing in Mr Waddington's conduct or demeanour to indicate that he might need to have someone else speak for him. The magistrate could see and hear Mr Waddington. Mr Waddington was plainly capable of articulating his complaint, and to do so using legal concepts. There was therefore no basis upon which to consider hearing from Mr McDonald. The magistrate took steps to ensure that Mr Waddington would have a fair hearing by offering him the assistance of the court and agreeing to him retaining the assistance of Mr McDonald. Mr Waddington's position as an anxious unrepresented litigant was taken into account.

In the circumstances, the magistrate did not refuse to exercise his power to control the processes in his court in the interests of justice. I am not persuaded that the exercise of any discretion to hear from Mr McDonald miscarried.[25]

26 With respect, I agree with her Honour. Recognising as the judge did that the Magistrate had a discretion to allow the appellant to appear by his lay agent, and accepting as I do that the exercise of the discretion was informed by and required to conform to the appellant's common law right to a fair trial, it was not and has not been shown that the Magistrate's refusal to allow the appellant to appear by his lay agent denied him a right to a fair trial or otherwise that the exercise of discretion miscarried.

27 Finally, under the heading of Ground 5, the appellant contended that the judge's reasons raised a number of issues of law and justice including, without being

limited to, the role of the legal profession in the administration of justice, the rights and responsibilities of self-represented litigants and those who assist them and the inherent powers and obligations of the courts to administer justice through the application of due process of law.

28 Insofar as any of those issues arose for consideration below, there was no error in the judge's disposition of them.

[1] Supreme Court Act 1986, s 17A(4)(b); Little v State of Victoria [1998] 4 VR 596, 600-1 (Callaway JA); Dodoro v Knighting [2004] VSCA 217; (2004) 10 VR 277, 281-3 [18]-[20] (Callaway JA); Genco v Salter [2013] VSCA 365, [62] (Osborn JA).

[2] Mr Waddington advanced what he described as good policy reasons for allowing unrepresented parties to be represented in a court of law by someone they believe to be more competent in managing court appearances than them. He argued that it would improve access to justice and that individuals would make rational decisions about representation, based on their knowledge of their own abilities and those they choose to represent them.

[3] Legal Profession Act, s 1.2.1 (definitions).

[5] Magistrates' Court Act 1989, s 103(4).

[7] Hubbard Association of Scientologists International v Anderson and Just [1972] VicRp 37; [1972] VR 340, 342; Cornall v Nagle [1995] VicRp 50; [1995] 2 VR 188, 202 (J D Phillips J).

[8] See O'Toole v Scott [1965] AC 939, 952-958 (Lord Reid).

[9] [1972] VicRp 37; [1972] VR 340, 342; see also Cornall v Nagle [1995] VicRp 50; [1995] 2 VR 188, 202 (J D Phillips J).

[10] [1995] VicRp 50; [1995] 2 VR 188, 202.

[11] Of the Legal Profession Practice Act 1958, see now s 2.2.2 of the Legal Profession Act 2004.

[12] [1972] VicRp 37; [1972] VR 340.

[13] [1965] AC 939.

[14] (1968) 88 WN (Pt 1) (NSW) 295.

[15] [1971] P 33.

[16] [1991] 2 QB 260, 279 ff (CA).

[18] Instruments Act 1958, s 110.

[20] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337.

[22] [2000] HCA 48; (2000) 201 CLR 488, [53] (citations omitted).

[23] He referred among other authorities to Stefanovski v Murphy and Anor [1996] VicRp 78; [1996] 2 VR 442 (Tadgell and Ormiston JJA and Teague AJA); Tomasevic v Travaglini & Anor [2007] VSC 337 (Bell J).

[24] The appellant expressly disavowed any reliance on the Charter of Human Rights and Responsibilities Act 2006.