FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission v Jutsen
[2010] FCA 961

THE COURT ORDERS THAT:

1.                  The application by Mr Howard seeking leave to appear for the respondents is refused.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

(Revised from Transcript)

Background

1                     The hearing of this proceeding commenced yesterday.  Until late last week the three respondents were represented by solicitors and counsel.  It was only on Friday of last week (with the hearing due to commence the following Monday) that the respondents’ solicitors contacted the Court and advised that their instructions had been withdrawn and that they had ceased to act.  Counsel appeared at the commencement of the hearing yesterday for the purpose of seeking leave to file a Notice of Ceasing to Act.  I granted that leave. 

2                     The matter was then called outside the Court.  None of the respondents appeared.  Mr Howard then made an application for leave to appear at the hearing on behalf of the three respondents.  None of the respondents was present in Court at the time that application was made.  It appears that they stayed away from Court on Mr Howard’s advice.  I refused to grant Mr Howard the leave he sought.  These are my reasons for doing so.

3                     In this proceeding the applicant seeks various forms of relief against the respondents including injunctions and pecuniary penalties in respect of alleged contraventions by the respondents of Division 1AAA of Part V, of the Trade Practices Act 1974 (Cth) (the Act).  The gist of the applicant’s case against the respondents is that they participated in a pyramid selling scheme and that they induced, or attempted to induce, others to participate in such a scheme.  It is not necessary for me to refer to the relevant provisions of the Act in any detail.  I would mention, however, that while the terms of s 65AAC of the Act prohibit a corporation from engaging in such conduct, the applicant proposes to rely upon s 6 of the Act.  Various provisions of the Act are given an extended operation by s 6.  The applicant says it will rely on s 6(2) and (3).

4                     The proceeding is fixed for a hearing extending over five days.  The applicant’s evidence in chief is to be given by affidavit.  Some of the applicant’s witnesses have been required for cross-examination.  A notice of the respondents’ objections to the applicant’s affidavit evidence has also been served.  It appears to have been prepared by the legal representatives who were previously acting for the respondents. 

5                     At the last directions hearing I acceded to an application made by the respondents to vacate a consent direction previously made requiring them to file and serve affidavits by a particular date.  Counsel who then appeared for the respondents drew my attention to the fact that pecuniary penalties were being sought and argued that the respondents should not be required to file and serve affidavits until after the applicant had closed its case.  I do not know at this stage whether the respondents propose to call evidence and, as presently advised, I do not propose to require them to make any election in that regard until the applicant’s case is closed. 

6                     On the basis of my review of the pleadings and the relevant statutory provisions it seems to me that this is likely to be a relatively complex piece of litigation.  There are a number of points of statutory construction likely to arise. 

Evidence in support of the application

7                     There was no sworn evidence from any of the respondents in support of Mr Howard’s application for leave to represent them.  Mr Howard handed to me three documents which appear to be statements made by the respondents which do not, in my view, advance matters very much. 

8                     Mr Howard told me from the Bar table that he is an engineer by training and that he has no legal qualifications.  When he was asked about his relationship with the respondents he initially told me that he had been a “support worker” for the three respondents.  Quite what he meant by this I am not sure.  It emerged from what he said in response to a number of questions that I then posed that he has had some prior involvement in the enterprise in which the respondents are alleged to have been involved.  It also emerged that he may well have provided legal advice concerning the legality of that enterprise.  That is a matter that I consider relevant to the present application.  It was not a matter that was volunteered by Mr Howard but was something that emerged following some questioning of him by me. 

the relevant principles

9                     In considering the application to allow Mr Howard to appear for the respondents, I have had regard to the decisions of Drummond J in Clout (Trustee) v Anscor Pty Ltd [2001] FCA 604 and Bennett J in Melaleuca of Australia & New Zealand Pty Ltd  v Duck [2005] FCA 1481.  I have also had regard to the decision of the New South Wales Court of Appeal in Damjanovic v Maley (2002) 55 NSWLR 149 in which Stein JA (with whom Mason P and Sheller JA agreed) undertook an extensive review of the authorities which consider the circumstances in which an unqualified advocate might be given leave to appear on behalf of a party. 

10                  It is well established that the Court has a discretion to grant a non-qualified person leave to appear on behalf of a party.  However, the general rule is that the Court will not allow an appearance by a person who has not been admitted to practice before it: see, for example, Scotts Head Developments Pty Ltd v Pallisar Pty Ltd (Court of Appeal, 6 September 1994, unreported) per Mahoney AP cited by Stein JA in Damjanovic at 159.  As the authorities referred to byStein JA make clear, the question whether an unqualified person should be given leave to appear is usually addressed by reference to the general rule and the important policy considerations underlying it.  Central to these are the responsibilities owed by qualified persons who have a right of appearance.  Such persons owe professional and ethical duties to both the Court and their client that are of fundamental importance to the administration of justice.  Unqualified advocates are not bound by these professional and ethical duties. 

Consideration

11                  There are a number of matters which have guided the exercise of my discretion in this matter.

12                  First, as I have already indicated, I consider the present case is likely to be relatively complex.  Allowing an unqualified advocate to conduct the respondents’ defence carries with it a substantial risk that it will be conducted inappropriately and in a manner that might cause the respondents irreparable prejudice.  As I have mentioned, Mr Howard has no legal qualifications.  He told me that he was an engineer by training.  My review of the pleadings and the outline of opening filed on behalf of the applicant (the respondents have not filed any outline of opening) leads me to think that this professional qualification has little, if any, relevance to any issue that is likely to arise in this case. 

13                  Secondly, I have considered the difficulties which Mr Howard says the respondents will suffer if they are not represented by him.  I am not satisfied that the respondents are unable to afford legal representation.  It appears that there may be other reasons behind their decision to withdraw the instructions which they had been providing to their solicitors and counsel in the weeks leading up to the trial. 

14                  Thirdly, there is no suggestion that the respondents will experience any language difficulty or that they suffer from any disability or impairment which would prevent them from conducting their own defence.

15                  Fourthly, I am left with an uneasy concern that Mr Howard has not given me a sufficient explanation of his previous involvement with the respondents or the enterprise in which they are alleged to have participated.

16                  Fifthly, I have also had regard to how Mr Howard proposes to conduct the respondents’ defence in the event that he is given leave to do so.  So far as cross-examination is concerned, Mr Howard told me that the respondents would prepare questions that he would then ask the witnesses.  As to submissions, he envisaged that he would address on the respondents behalf and that each of them would follow, in his words, “in a similar way as where there is a junior and senior counsel.”  I think this is unlikely to assist in the efficient and just disposition of the case.

17                  In the result, I am not satisfied that it is in the interests of justice to give Mr Howard leave to appear on behalf of the respondents.  Rather, I am satisfied that both the public and private interests relevant to the present application all weigh against him being given that leave. 

Associate:

Dated:         2 September 2010