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Queensland Judgments
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  • Unreported Judgment

Rich v Auswide Constructions Pty Ltd

 

[2020] QDC 327

DISTRICT COURT OF QUEENSLAND

CITATION:

Rich v Auswide Constructions Pty Ltd [2020] QDC 327

PARTIES:

ALEXANDER DAVID WILLIAM RICH

(plaintiff)

v

AUSWIDE CONSTRUCTIONS PTY LTD ACN 114 157 925 as trustee for the Auswide Constructions Trust

(first defendant)

and

GARRY BRAND

(second defendant)

FILE NO/S:

15/19

DIVISION:

Civil

PROCEEDING:

Application

DELIVERED ON:

30 November 2020 (ex tempore)

DELIVERED AT:

Southport

HEARING DATES:

30 November 2020

JUDGE:

Barlow QC DCJ

ORDER:

  1. Application refused.
  2. Leave granted for Mr Arulogun to act as Mr Rich’s McKenzie friend.

CATCHWORDS:

UNQUALIFIED PERSONS AND DISQUALIFIED PRACTITIONERS – ACTING FOR PARTY – plaintiff sought leave for lay advocate to appear on his behalf at trial – lay advocate had obtained legal qualifications but was not admitted to the legal profession – defendant opposed the application on the basis that the lay advocate was not a proper person and was not of proper character – whether it is contrary to the interests of justice, the proper administration of justice and the protection of parties in litigation to grant leave – whether leave should be granted to the plaintiff to have a McKenzie friend

District Court of Queensland Act 1967 (Qld), s 52(1)(b)

Damjanovic v Maley (2002) 55 NSWLR 159, applied

McKenzie v McKenzie [1971] P 33, applied

R v Bow County Court;  Ex parte Pelling [1999] 1 WLR 1807, cited

COUNSEL:

Self-represented plaintiff with Stephen Arulogun as McKenzie friend

A Marinac (solicitor) for the defendant

SOLICITORS:

Pacific Maritime Lawyers for the defendant

  1. [1]
    The plaintiff in this proceeding has represented himself and continues to do so throughout the proceeding.  The proceeding is set down for a trial of two days commencing on Wednesday, 2 December this year before me.  By an application filed last Friday, 27 November 2020, the plaintiff seeks an order granting leave to a gentleman called Stephen Arulogun to appear as lay advocate on behalf of the plaintiff at the trial pursuant to section 52(1)(b) of the District Court of Queensland Act 1967.
  2. [2]
    Mr Rich submits that he has little knowledge of the relevant law.  He has found running this case himself to be extremely distressful.  It has caused him to become depressed and he is on antidepressants.  He says he could not afford to engage a lawyer, Mr Arulogun has supported him in more recent times and, he submits, would help him conduct the trial more expeditiously and efficiently than if Mr Rich were to conduct it on his own behalf.  Mr Rich submits that the trial involves complicated questions of law in which he is at a substantial disadvantage to the defendant, who is represented by a highly experienced solicitor advocate, and it is the complexity of the litigation as well that merits him being given leave to be represented by Mr Arulogun.
  3. [3]
    The defendant[1] opposes the application and points, in part, to the principles that have been outlined and discussed in great detail by the New South Wales Court of Appeal in Damjanovic v Maley (2002) 55 NSWLR 159.  In that decision, Justice Stein, with whom the other members of the court agreed, discussed a large number of cases in which applications had been made, sometimes granted and more often refused, to have a self-represented litigant represented by an advocate, unqualified in the area of law and not having a practising certificate.
  4. [4]
    On the whole, courts are reluctant to agree to lay persons representing a party in litigation before the court for a number of reasons, particularly because persons who are admitted to practise as lawyers or legal practitioners, whether it is barristers or solicitors, have high duties to the court which are, of course, higher than their duties to their client, but they also have high duties to their client and are required to conduct the case appropriately and properly.
  5. [5]
    It has been said that it would be a rare and exceptional case in which a person other than a qualified lawyer would be permitted to appear on behalf of a party.  It has particularly been said that the court should be concerned when an unqualified person regularly seeks to represent a party, or is paid to do so, as that would be contrary to the interests of justice, the proper administration of justice and the protection of parties in litigation, as a matter of general principle.  It would tend to lead to a diminution of the importance to the courts of having properly legally qualified and admitted persons appear before them.  In particular, Justice Stein quoted from the reasons of the Master of the Rolls in R v Bow County Court;  Ex parte Pelling [1999] 1 WLR 1807 in which his Lordship said:

… if a person chooses to regularly appear as McKenzie friend, especially if he is also a clerk, because he is earning his living in this way, he must exercise considerable restraint or he 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.

  1. [6]
    It was also said in the Court of Appeal of the United Kingdom in another decision, quoted by Justice Stein at paragraph 64 of his Honour’s reasons:

And a person who aspired to be advocate should obtain the requisite qualifications and the court should be slow to permit those who are allowed to be present in court as a McKenzie friend to act as advocates.

  1. [7]
    The defendant in this case opposes Mr Arulogun being give leave either to appear or to act as a McKenzie friend, partly because it is submitted he is not an appropriate person or a proper person and is not of proper character to be allowed to do so.  He was, in 2013, disciplined by the Queensland Civil Administrative Tribunal and the Pharmacy Board of Australia for, at a time when he was a pharmacist, taking drugs from the pharmacy and supplying them to other persons, for which he was also convicted in the criminal courts of two counts of supplying a dangerous, two counts of possessing a dangerous and one count of possessing codeine, to which he pleaded guilty.  He was sentenced to 18 months’ imprisonment with a non-parole period of six months and he was released from custody on 23 July 2012.
  2. [8]
    Furthermore, Mr Arulogun swore an affidavit in support of Mr Rich’s application, in which he said that he is a director of a company trading as PEF Capital, he has a Bachelor of Laws from the Queensland University of Technology, he has a Graduate Diploma of Legal Practice from the College of Law and he defines himself as a “litigation process consultant”.  He doesn’t really explain what that means, but he says he provides litigation process advice to entities involved in civil disputes as well as acting as a paid agent in disputes governed by the Fair Work Act.   My understanding is that, under the Fair Work Act, it is possible for non-lawyers to represent parties to disputes in the Industrial Court.
  3. [9]
    Mr Arulogun says that, since being engaged by the plaintiff, he has assisted him with the preparation of his matter, carrying out such tasks as informing him of the trial process, informing him of resources he can refer to regarding civil procedure, carrying out research at his direction into relevant cases and editing and drafting correspondence as requested.  He says he has not commented on advice given to the plaintiff by any legal practitioner.  He has not provided legal advice to the plaintiff.  He has not held himself out to be a solicitor, barrister or advocate qualified under the Legal Profession Act or held out his company to be a law firm or law practice.
  4. [10]
    What he did not tell the court in his affidavit, as pointed out to me by Dr Marinac, appearing for the defendant, is that he has applied to be admitted as a legal practitioner in Queensland but his application was adjourned in the middle of this year to a date to be fixed.  That is certainly unusual and one wonders why that has happened, but I am not proposing to speculate about that.  The point that Dr Marinac says is that he should have disclosed that to this court in respect of this application, as it may be relevant to the exercise of my discretion.
  5. [11]
    It seems to me that this is not a case in which it is appropriate for the court to grant leave to Mr Arulogun to represent the plaintiff.  It is a complex case, I agree.  It involves difficult questions of equity, in particular.  It is complex in the law but is not very complex in the facts, from what I can see.  Mr Rich submitted that the complexity of litigation is, in fact, a point in his favour, but the authorities all indicate that it is a point against the grant of leave in such circumstances.
  6. [12]
    It seems to me that Mr Rich should conduct his own case, but I accept that he might wish to obtain assistance of someone as a McKenzie friend.  At this stage, I am prepared to let Mr Arulogun act as his McKenzie friend, but I note that that role is a very limited role and must not involve Mr Arulogun providing a script to Mr Rich for what Mr Rich should say, in the sense of Mr Rich acting as his puppet.
  7. [13]
    So, in the circumstances, I will not grant leave for Mr Arulogun to represent Mr Rich at the trial but I will grant leave, for the present, for Mr Arulogun to act as Mr Rich’s McKenzie friend.

Footnotes

[1]  Although there are two named defendants, the second defendant (apparently another purchaser) has taken no part in the proceeding and the plaintiff seeks no relief against him.  Therefore, I shall simply refer to the first defendant as ‘the defendant’.

Close

Editorial Notes

  • Published Case Name:

    Rich v Auswide Constructions Pty Ltd

  • Shortened Case Name:

    Rich v Auswide Constructions Pty Ltd

  • MNC:

    [2020] QDC 327

  • Court:

    QDC

  • Judge(s):

    Barlow QC DCJ

  • Date:

    30 Nov 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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