Teese v State Bank of New South Wales [2002] NSWCA 219 (4 July 2002)

Last Updated: 15 July 2002

NEW SOUTH WALES COURT OF APPEAL

CITATION: Teese v State Bank of New South Wales [2002] NSWCA 219

FILE NUMBER(S):

40107/01

HEARING DATE(S): 04/07/02

JUDGMENT DATE: 04/07/2002

PARTIES:

Ann-Carolyn Teese v State Bank of New South Wales

JUDGMENT OF: Giles JA Ipp AJA Hodgson JA

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): CLD 10174/89

LOWER COURT JUDICIAL OFFICER: McClellan J

COUNSEL:

B White/In Person (Appellant)

R G Forster SC/L J Aitken (Respondent)

SOLICITORS:

In Person (Appellant)

Abbott Tout (Respondent)

CATCHWORDS:

PRACTICE AND PROCEDURE - application for leave to appear as a McKenzie friend - general rule - policy considerations - good grounds required to be shown before Court will grant leave - application dismissed. D

LEGISLATION CITED:

DECISION:

Leave refused (by majority) (on application that Mr B White appear on behalf of the appellant).

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40107/01

GILES JA

HODGSON JA

IPP AJA

Thursday 4 July 2002

ANN-CAROLYN TEESE v STATE BANK OF NSW

Judgment

1 GILES JA: We have reached a decision on the application that Mr White have leave to appear on behalf of the appellant. The decision is a majority decision. Ipp AJA and I consider that leave should be refused. Hodgson JA considers that leave should be granted. We think it appropriate that our reasons for our respective views be made known now, and I would ask Ipp AJA to give his reasons first.

2 IPP AJA: At the commencement of this appeal Mr White sought leave to represent the appellant, Ms Teese.

3 Mr White is admitted as a barrister but has not practised as a barrister for many years. He is not a member of the New South Wales Bar Association and he does not hold a practising certificate. He has informed the court that he does not intend to charge Ms Teese any fees for representing her in these proceedings. Since being admitted as a barrister, Mr White has taught law and he does seem to have a legal background, albeit that his experience in the practice of the law is limited.

4 Mr White did not suggest that he should be allowed to represent Ms Teese because he was a barrister, and expressly disavowed such a contention. He said, in effect, that he should be allowed to represent Ms Teese because the justice of the case warranted such a course.

5 The general rule in regard to the representation of parties involved in litigation that obtains in this country is that, where a litigant is not self-represented, he or she should be represented by a solicitor or barrister who is duly admitted, who holds a practising certificate or its equivalent, and is a member of the relevant professional body such as the Law Society or the Bar Association. There are very strong policy reasons that underlie this practice.

6 An admitted solicitor or barrister who appears on behalf of a litigant is an officer of the Court and as such is subject to the discipline of the Court. If such a person holds a practising certificate and is a member of the Law Society or the Bar Association, he or she is subject to the requirements as to professional conduct imposed by statute and the disciplinary regimes of those professional bodies. The power that the Court is then able to exercise over such a person, directly and indirectly, is a foundation of the proper functioning of the administration of justice. If a person who is not subject to these disciplinary constraints is allowed to represent a litigant, this important procedural safeguard will be lost.

7 Mr White was admitted as a barrister and it may be that he is to be regarded as an officer of the Court. But he does not hold a practising certificate and he is not subject to the disciplinary regime of the Bar.

8 In this State the requirement of a practising certificate has been regarded as of fundamental importance by the legislature and the Court. This Court would not allow a person, in the course of his or her practice as a barrister, to represent a party knowing that he or she did not hold a practising certificate.

9 I do not make any decision as to whether in wishing to represent Ms Teese Mr White is intending to practice as a barrister. It may well be that because he is not charging he is not practising. As I say, I express no opinion in that respect. The fact, however, is that Mr White is not subject to the discipline of the Bar and he is not subject to the discipline that the holding of a practising certificate entails. So those safeguards will be lost should Mr White be allowed to represent Ms Teese.

10 There is another important policy reason underlying the rule that, ordinarily, only a person, admitted as a barrister or solicitor and a member of the relevant professional institution, holding the relevant practising certificate, should be allowed to represent a party in legal proceedings. That is the need for such a person to be objective and to be removed from the emotions that generally arise in the heat of litigation. Practising barristers are trained to deal with and to control these emotions. Restraint of this kind is applied by barristers in the daily course of their professional lives. This quality of objectivity in the practice of the law is an essential part of the proper representation of clients by lawyers in the courts. Mr White does not fall into the category of persons who by training and experience have that quality.

11 The present case is an appeal of some complexity. If some person is to represent Ms Teese in these particular proceedings, that person needs to be experienced and knowledgeable in the law and in the practice thereof. Again, Mr White does not fall into the category of such persons.

12 Of course, in exceptional circumstances the Court will allow a person who is not an admitted solicitor or barrister, who is not a member of the relevant professional body, and who does not hold a relevant practising certificate, to represent a litigant. But good grounds must be shown to the Court before leave will be granted to such a person to represent a party.

13 I asked Mr White why it was that leave should be granted to him to represent Ms Teese and why it was that Ms Teese had not retained a qualified and admitted lawyer to represent her. The only reason that he advanced was that Ms Teese had had some unhappy experiences with lawyers, had an aversion to lawyers, and did not wish to utilise the services of one.

14 I do not regard that as a satisfactory explanation. There are thousands of admitted solicitors in this State and between 1500 and 2000 barristers who are members of the New South Wales Bar. It is not an appropriate answer, in my view, to say that there is no lawyer in this State who would be suitable and appropriate to represent Ms Teese.

15 The usual ground for granting leave to a person, not properly qualified, to represent a litigant is impecuniosity, that is, where the litigant, for financial reasons, cannot afford to pay a properly qualified lawyer. No ground on this basis was advanced and no evidence to this effect exists. In these circumstances, it seems to me, Ms Teese wishes to retain Mr White merely to indulge her prejudice against lawyers generally.

16 In my opinion, Ms Teese's predilection cannot outweigh the very powerful policy considerations that I have mentioned.

17 I am not persuaded that leave should be granted to Mr White to represent Ms Teese. In my view, the application made by Mr White on behalf of Ms Teese should be dismissed.

18 GILES JA: I would ask Hodgson JA to give his reasons.

19 HODGSON JA: I agree with Ipp AJA that grounds have to be shown for a grant of leave to a person not being a legal practitioner to appear on behalf of a litigant, and that the considerations advanced by him are relevant to the question of whether leave should be granted.

20 I also agree that in this case the application is not supported by appropriate evidence showing appropriate grounds.

21 In my opinion, it should in fact be the practice that applications of this kind be generally made in advance of the hearing, supported by appropriate evidence, and on which due consideration can be given to the question of whether grounds are made out. A decision on such an application in advance of the hearing of the matter will ensure that difficult questions about representation will not jeopardise the orderly hearing of the appeal when the matter actually comes on for hearing.

22 However, so far as I am aware, the need for such an application to be made in advance of the hearing has not previously been suggested. In circumstances where it has not previously been made known to the appellant that such an application should be made on adequate evidence and preferably in advance of the hearing, I think it would be inappropriate to refuse leave in this case on the basis that insufficient grounds have been shown. Particularly is that so, in my opinion, where the refusal of leave at the hearing itself could possibly result in further delay, costs and inconvenience to both parties. So I disagree with the view expressed by Ipp AJA, and would grant leave.

23 I would add to my reasons given orally that leave granted in advance of a hearing would, as I see it, be given until further order, so that the ability of the Court hearing the appeal to control what occurs before it would not be affected: however, the prior grant of leave until further order would support legitimate expectations enabling appropriate preparations for the hearing.

24 GILES JA: I am content to adopt the reasons of Ipp AJA without addition.

25 The ruling is, therefore, that leave is refused. We will now continue the hearing of the appeal.

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LAST UPDATED: 12/07/2002