Litigant may not represent himself in those bits barrister spurns

In Malouf v Malouf [2006] NSWCA 83, (2006) 65 NSWLR 449 the NSW Court of Appeal, led by President Mason disapproved of the practice allowed below of a litigant appearing for himself in relation to some points and being represented in relation to others. Warwick Malouf had sued his brother for fraud, and represented himself, and lost ([2005] NSWC 9). He appealed, claiming that the judge had not assisted him sufficiently. What seems likely to have happened is that Mr Malouf filed a fairly average set of grounds of appeal, retained counsel who told him so, drafted some good ones, which were tacked onto the existing grounds by Mr Malouf, and the barrister said he could not support Mr Malouf’s grounds and would only make advocacy by reference to the new ones. Mason P said of this ploy that it had the tendency of much mischief:

“173 The device would enable the litigant to propound untenable or scandalous submissions that would not be advanced if the matter remained in the hands of lawyers who may have greater cause to fear disciplinary or costs sanctions than the lay client. This may of course happen if the litigant is wholly unrepresented, but that is the consequence of the right of the self-represented to appear. It does not suggest a reason why the Court should countenance what I would term a right of dual or splintered advocacy.

174 A Court may permit departure from this stringency, just as it may, in its discretion, allow a “friend” who is not a lawyer to address (see generally Damjanovic v Maley (2002) 55 NSWLR 149). The discretion would usually be exercised favourably if impecuniosity or accident left the litigant without representation on a particular occasion.

175 A court may also permit a lawyer to address on a point of law, as amicus curiae. The lawyer who assists in this way has no entitlement to charge a fee, nor has the client any right to recover the lawyer’s costs in the event that an order is made in his or her favour (see Blackwood Foodland Pty Ltd v Milne [1971] SASR 403 at 411).
176 The law understands the concept of a limited retainer. But no authority of which I am aware recognises the right of splintered advocacy at a single hearing. A judge may take the view, especially with a client whose means or English or capacity to speak in public is limited, that half-a-loaf is better than no bread and that assistance from a lawyer as amicus or even from a “Mackenzie friend” may be better than none. But the question at issue is whether the litigant has the right to top-up such assistance by speaking either before or after the advocate (or interrupting the advocate mid stream). In my view there is no such right.”

Bryson JA joined the chorus with these words which I will remember and throw into my next choice interlocutory squabble in which I am seeking progress rather than resisting it:

“183 Courts should not go so far in accommodating the positions of unrepresented litigants as to make it an advantageous procedural step to dismiss one’s lawyers, or to retain none. Nor should Courts slip from unreadiness to shut a party out from litigating an issue which is fairly arguable into incapacity to close off procedural opportunities which are not taken. Without procedure, procedural directions and compliance, justice will not be done at all. The time, patience, resources and willingness to behave appropriately of those who do comply should have a place in consideration of what the Court should do when a party who has not complied with earlier directions seeks an extension of time, or some procedural indulgence by which earlier directions are disregarded. The compliant also have an entitlement to consideration, and their compliance should not be disregarded, or mocked, by treating their opponent’s obligation to comply with the Court’s directions as less than important, or as superfluous. Procedural directions in this case, including Registrar Berecry’s five directions to the appellant to file and serve his statements, were made so as to give reality to the opportunity to know in advance of trial the case which the respondents were to meet. The appellant alleged fraud, sued six years after the event and went to trial more than three years after that. There was nothing onerous in directing him to reveal his evidence in chief in advance of trial. There are advantages in not complying with such directions, as one’s opponent could prepare to meet the evidence if it were disclosed: if advantages are achievable by non-compliance, non-compliance is likely to occur.

184 My concern is that Nicholas J may have been more forbearing with the appellant and may have given him more procedural indulgences than was fair to the respondents. However it is enough to dispose of the issues in the appeal to say that I agree with Mason P.”

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