Tuesday, May 31, 2011

Apostolou v Commissioner of State Revenue [2008] VSC 332 - the 'McKenzie friend'

The matter of Apostolou v Commissioner of State Revenue [2008] VSC 332 (Apolstolou) was a hearing before Mandie J in the Supreme Court of Victoria. In Apolostolou, Mandie J considered an application for a a party to be granted leave to be represented by a non-lawyer.

Apostolou was an appeal from a decision of VCAT to impose duty on two land transfers. The appellant said that these transfers were not dutiable as they were the result of a change of trustee in respect of the land (at [4]). The appellant's husband appeared throughout the appeal as a 'McKenzie friend', and also deposed to matters in the affidavits in support. The appellant's case was that the husband was the real owner of the land behind the trusts as he was the settlor, and although his wife's name was in the title of the proceedings, it was really his case (at [15] and [17]). I have discussed this in the summary below.

To give my readers some idea of the character of the contents of the husband's affidavits (and to give my readers something to amuse themselves with in an otherwise dry case summary), at [9] the Court notes the appellant's husband deposed to the following:
The additional material in the further affidavit, in summary, asserts, without evidence, that the Tribunal was somehow influenced in reaching a “poisoned” “illegal” and “evil” decision, that somehow the State government, the Premier, and the Attorney-General were implicated in the making of this “corrupt” decision.
There were also concurrent proceedings in the Federal Court of Australia in which the appellant was legally represented.

Mandie J discussed the role of a 'McKenzie friend' at [20], citing McKenzie v McKenzie [1971] P33, 38:
Any person, whether he be a professional man or not, may attend as a friend of either party, may take notes, may quietly make suggestions, and give advice; but no-one can demand to take part in the proceedings as an advocate, contrary to the regulations of the court as settled by the discretion of the justices.
Mandie J noted that the Court's discretion to permit a lay person to appear for a party is an incident of the Court controlling its own proceedings, and that various factors are to be taken into account in exercising the discretion, including (at [21]):
  1. The conduct of a case by a lay person is not under the disciplinary control of the court (or other relevant professional and disciplinary bodies). 
  2. In all but the simplest case, the court is unlikely to receive the skilled and learned assistance that it may expect from a professionally qualified representative. 
  3. The represented party’s interests may not be well served, indeed may be ill-served, by a lay representative.
Mandie J denied the appellant leave to be represented by her husband and said that all the above factors were relevant in this case. Mandie J also noted at [22] and [23]:

22 In addition, it appears that Mr Vasiliou is the chief witness and protagonist and for that reason alone ill-suited to provide objective representation for the appellant. This is confirmed by what he said to the court and further illustrated by the colourful and scandalous allegations contained in his further affidavit.
23 Further it would seem that the appellant has been able to obtain legal representation in the Federal Court and it would thus appear that legal assistance may be available.

Another factor that is likely to be important in circumstances where the lay person representative is also a witness is whether the Court will order that all witnesses are excluded from the Court until they give their evidence. If this order is made, then that lay person representative is unlikely to be an effective representative at all.

Apolostolou suggests that in most cases apart from simple matters, a lay person is unlikely to be given leave to appear for a party. It is consistent with recent case management decisions such as Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 in which the Courts are saying that when they are making decisions on interlocutory matters, such as considering an amendment and adjournment application, they need to consider the effect on other litigants awaiting hearing dates.

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