DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   By this application the defendant seeks summary judgment pursuant to R 293 of the Uniform Civil Procedure Rules 1999 (“UCPR”).  In the alternative the defendant seeks that the plaintiff’s pleadings be struck out and seeks judgment pursuant to R 658 of the UCPR.  Costs of the application are sought on the indemnity basis.  When the application came on for hearing the plaintiff sought an adjournment of the application.

The issues

2. [2]
   This proceeding concerns the sale of a shop by the plaintiff to the defendant and the nature of the collateral oral agreement between the parties which concerned the terms pursuant to which the plaintiff would subsequently continue in possession of the shop. Originally, remedies sought by the plaintiff included specific performance. After numerous amended pleadings they extend to damages, including exemplary damages, for breach of contract, malicious prosecution and abuse of process. The plaintiff elects trial by jury.

3. [3]
   The plaintiff has been assisted in the prosecution of this proceeding by her husband who is a barrister. His conduct in this regard resulted in complaints to the Legal Services Commissioner and ultimately, a finding that he was guilty of unsatisfactory conduct by the Legal Practice Tribunal.^[1]  This finding was prefaced by observations by White J who delivered the decision of the Tribunal, that the conduct in question “may, in part relate to his unfamiliarity with the conduct of civil litigation and of his closeness to Ms Coronis”.^[2]  Subsequently, she observed that:-

“…he does not hold himself out as practising on the civil side and frankly concedes that he has no competence in that field. The lengthy, digressive and generally unfocused, nature of the respondent’s explanations…together with the way he has conducted his own representation casts doubt on his capacity to identify matters in issue and address them as a competent Australian lawyer would.”^[3]

4. [4]
   It is against his background that the application first came before me on 22 August 2008. The plaintiff was not present, however her husband purported to represent her. I enquired as to whether he had complied with s 83 of the Legal Profession (Barristers) Rule 2004 (“the Rule”).  He informed me that he had and drew my attention to a document dated 2 November 2007 which had been made an exhibit in a previous application.  Section 83 of the Rule is in the following terms:-

“A barrister who proposes to accept instructions directly form a person who is not a solicitor or a professional acting as such must:

1. (a)
   inform the prospective client in writing of:

1. (i)
   the effect of Rules 77 and 78;

2. (ii)
   the fact that circumstances may require the client to retain an instructing solicitor at short notice, and possibly during the case;

3. (iii)
   any other disadvantage which the barrister believes on reasonable grounds may, as a real possibility, be suffered by the client if the client does not retain an instructing solicitor;

4. (iv)
   the relative capacity of the barrister in performing barristers’ work to supply the requested facilities or services to the client compared to the capacity of the barrister together with an instructing solicitor to supply them; and

2. (b)
   obtain a written acknowledgement, signed by the prospective client, that he or she has been informed of the matters in (a) above.”

5. [5]
   The requirements of the Rule with respect to direct access briefing have been complemented by Practice Direction No. 2 of 2006 (“the Practice Direction”) which relevantly provides:-

“2.  It is expected that a barrister who accepts a direct access brief will:

1. (a)
   obtain a detailed understanding of the matter, including the client’s potential case;

2. (b)
   give consideration to the evidence likely to be required to be called in the case;

3. (c)
   ascertain the nature and volume of documentary evidence likely to be relevant in the case;

4. (d)
   ascertain the identity and number of potential witnesses;

5. (e)
   give detailed consideration to the manner in which the evidence will be collected and prepared for presentation to the Court;

6. (f)
   give careful consideration to the likely steps to be taken in the matter, including the prospect of interlocutory proceedings;

7. (g)
   consider whether, having regard to the resources available to the barrister, including the barrister’s experience, general competence, and familiarity with the areas of practice likely to be relevant to the matter, the barrister is satisfied that:

1. (i)
   the barrister will be able properly to prepare the case for hearing bearing in mind the requirements of ss 77 and 78 of the Legal Profession (Barristers) Rule 2004 (see appendix), and

2. (ii)
   the barrister will be able to take all appropriate action on the client’s behalf, in a timely fashion, and in accordance with any rules of practice and procedure, practice directions, or other likely orders or directions made in respect of the conduct of the matter;

8. (h)
   refuse to accept the direct access brief unless so satisfied.

3. A barrister who accepts a direct access brief must:

1. (a)
   comply with the requirements of s 83 of the Legal Profession (Barristers) Rule 2004 (see appendix) (this requirement applies to all direct access briefs, notwithstanding the brief is provided by a “professional acting as such” within the meaning of s 83).

2. (b)
   cause a document to be prepared which:

1. (i)
   sets out each of the matters which the barrister is required to disclose under s 83 of the Legal Profession (Barristers) Rule 2004;

2. (ii)
   includes the written acknowledgement, signed by the prospective client, referred to in s 83(b) of the Legal Profession (Barristers) Rule 2004;

3. (iii)
   contains a certification, signed by the barrister:

a. that he or she has complied with paragraph 2 of this Practice Direction; and

b. that he or she informed the prospective client that any complaint of professional misconduct, unsatisfactory professional conduct, or of other conduct to which Chapter 3 of the Legal Profession Act 2004 applies, may be made to the Legal Services Commission (Level 25, 307 Queen Street, Brisbane. Q. 4000);

3. (c)
   at the time at which any Court proceedings are instituted (or if the barrister is retained subsequent to the institution of proceedings, at the time the next document is filed in Court, and in any event before the barrister appears in Court in relation to the matter), cause:

1. (i)
   the document to be filed in the Registry, and

2. (ii)
   a copy of the document to be delivered to the Chief Executive of the Bar Association of Queensland.”

6. [6]
   I was concerned that the document dated 2 November 2007 did not make any reference to the Practice Direction nor did it attempt to address the matters set out in paragraph 2 of it. There was no certification as required by paragraph 3(b)(iii) in this regard. I therefore adjourned the application and reserved the costs.

7. [7]
   The matter next came before me on 19 September 2008. On 18 September 2008 a document dated 16 September 2008 had been filed in the Registry. Regrettably this document was also deficient having regard to the requirements of the Practice Direction. Although it alleged that the plaintiff’s husband had complied with paragraph 2 of the Practice Direction, it did not contain the written acknowledgement signed by the plaintiff referred to in paragraph 3(b)(ii). Of particular concern was the fact that a copy of the document had not been delivered to the Chief Executive of the Bar Association of Queensland (“the Bar Association”) as required by paragraph 3(c)(ii). It is clear that it is intended that the Bar Association oversee all instances of direct access briefing in proceedings in this Court, presumably to ensure that the interests of litigants represented in this manner are protected.

8. [8]
   Given the findings of White J concerning the conduct of the plaintiff’s husband in prosecuting this proceeding on her behalf, I was anxious to ensure that the requirements with respect to direct access briefing were strictly complied with. I did not grant the plaintiff’s husband leave to appear on her behalf, however I permitted him to assist her as a McKenzie friend. He was disruptive and unhelpful in this regard.

9. [9]
   The plaintiff ultimately addressed me herself. It was evident that she had a poor grasp of the issues relevant to the application. Upon being questioned about the current state of her pleadings she confirmed that they were the work of her husband.^[4]  She also stated:-

“So I would ask for it to be adjourned where I can get a lawyer that – that would be listened to on behalf of me ‘cause I know many barristers and they offered to support me,  but I asked them not to ‘cause Jimmy [her husband] said he would and if you know, if Jimmy’s going to get into trouble each time he comes with me I can get myself another barrister ‘cause I have many friends as barristers that have offered their help because of my situation….  It was proven that I wasn’t of sound mind at the Court case where Jimmy went down where the Law Society, the Law Society – ah, there’s three Supreme Court Judges, had said and stated that I wasn’t of sound mind then.”^[5]

10. [10]
    The state of the plaintiff’s mental health has been alluded to in various places in the pleading of her claim and “her fragile health” and vulnerability was also noted in the judgment of the Legal Practice Tribunal^[6]. 

11. [11]
    So far as the plaintiff’s application for an adjournment is concerned, it is necessary for me to balance the need to ensure that the plaintiff, as an unrepresented party, has a reasonable opportunity to have her case heard and determined fairly, with the rights of the defendant to not be subjected to arguably frivolous or vexatious litigation which appears to have been commenced in response to its endeavours to pursue to its own rights in this dispute in the Magistrates Court.^[7]  The defendant’s application is not without merit.  There is the prospect of grave consequences for the plaintiff, should she not to be granted an adjournment.  It is clear that she is not responsible for the state of her pleadings and is at least emotionally fragile and vulnerable.  It is undesirable that her husband continue to purport to act on her behalf in this proceeding. 

Conclusion

12. [12]
    I am therefore of the view that it is in the interests of justice that the plaintiff be granted a further adjournment of the application to allow her to obtain some other legal advice. This is the second adjournment of the application and the plaintiff should not expect further indulgences from the Court in the event she persists on the path that she has taken.

Order

13. [13]

    1. The application be adjourned to a date to be fixed to be brought on, on seven days notice from one party to the other;

2. The costs of and incidental to the hearing on 19 September 2008 be reserved.