Apostolou v Commissioner of State Revenue [2008] VSC 332 (8 September 2008) – what is a McKenzie Friend

September 12, 2008 |

Self represented litigants are God’s way of telling the court to slow down a bit and that barristers haven’t suffered enough. Cases run on and on, judges bend over backwards giving the punter every opportunity to turn the bags of assertions thrown up into something vaguely representing submissions and evidence.  The horror, oh the humanity! 

There is one form of torture even more excrutiating – the friend of the self represented.  Not a lawyer but a wannabee advocate usually.  Often a family member but sometimes a well meaning friend.  Whoever it is it is usually the worst of all worlds for everybody.  This claytons advocate  run the case for the putner but will happily scurry back to the safety of “I am not a lawyer” land when he or she comes under pressure.  In my experience these people are gnerally motivated by altruism, they are a good friend of the punter and are better educated and/or have a better working knowledge of English. Then there is the McKenzie Friend who can assist but not act as an advocate.  In Apostolou the court had to sort out what role the “friend” played.  It became even more complicated when it was clear that the friend had an interest in the defendant’s case. 

Mandie J made some interesting observations about how to approach the issue:

As with many unrepresented ( by lawyers at least) litigants affidavits provide an opportunity to vent about the defendant.  And sure enough Mandie highlighted some of the choice commentary the defendant had about the motives of the plaintiff when he said:

9 A further affidavit was sworn by Mr Vasiliou and filed on 2 July 2008 (“the further affidavit”). Paragraphs 1 to 9 of the further affidavit deal with the hearing before the Tribunal. Paragraphs 10 to 28 of the further affidavit together with one following unnumbered paragraph contain additional material. A final paragraph of the further affidavit exhibits the folder of documents that was before VCAT. 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.

Now there is plenty of times I think that government, on pretty much every level, has come up with poisoned, illegal and evil decisions but those complaints are usually based on generic complaints about how inefficient they are.  There is no shortage of evil in the number of parking inspectors working their poisoned trade outside my chambers.  My thoughts about pretty much anyone associated with the train system starts with evil and poisoned and work on up as I try to squeeze onto a train in the morning peak.  As for corruption, my rates notices speak for themselves. But it is a horse of an entirely different colour to through in those literary hand grenades into a sworn affidavit dealing with a stamp duty dispute.  

The court rejected Mr Vasiliou’s submissions that he should act for the appellant stating:

Reasons
19 I will deal first with the question whether Mr Vasiliou should be permitted to appear for the appellant in this matter.
20 It should be recalled that the role of a “McKenzie friend” has been described as follows:[1]
“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.”
21 As an incident of controlling its own proceedings, a court has a discretion, in the interests of justice, to permit a lay person to appear on behalf of a party.[2] The relevant factors to be taken into account will vary from case to case. One of the important factors in most cases, if not every case, is that 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). Another important factor, in all but the simplest case, is that the court is unlikely to receive the skilled and learned assistance that it may expect from a professionally qualified representative. A further factor, often of importance, is that the represented party’s interests may not be well served, indeed may be ill-served, by a lay representative. It seems to me that all of the foregoing factors are relevant in the present case.
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.

The decision is also useful in pointing out that Rule 27.07 permits the court to remove scandalous matter from the court file.  Mandie stated:

25 In relation to the further affidavit, Rule 27.07 provides that, where a document for use in the Court contains scandalous, irrelevant or otherwise oppressive matter, the Court may order that such matter be struck out or, if the document has been filed, that it be taken off the file. I am satisfied that the further affidavit, apart from paras 1 to 9 and the final paragraph, contains scandalous and irrelevant matter. In my view, the affidavit should be taken off the file and I will so order. The only legitimate purpose for the affidavit was in order to exhibit the VCAT folder and this was the purpose for which special leave was granted. If and when the matter proceeds, I would permit the appellant to tender that folder. There is thus no prejudice caused to the appellant by ordering that the affidavit be taken off the file.

CONCLUSION

It is a useful decision when dealing with non practitioners who seek to represent a party. The key factors are :

  1. a lay person is not under the control of the court as a barrister or solicitor would be;
  2. a lay person can not be disciplined by a professional body;
  3. a lay person rarely has the skills to actually assist and may harm a persons case, often inadvertently;
  4. as in this case, the lay person may have an interest in the outcome.

Where the party has used legal representatives in the past or concurrentlyu in other matters that will tell against using a lay person in a proceeding.

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