FEDERAL COURT OF AUSTRALIA

Foong v Owners of Strata Plan No 54026 [2014] FCA 338

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The respondent creditor’s costs, including reserved costs, be taxed and paid in accordance with the Bankruptcy Act 1966 (Cth).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from transcript)

1    Before the Court is an appeal from a decision of the Federal Circuit Court of Australia, given by Judge Driver on 30 September 2013. When the appeal was called on for hearing, Ms Foong, who is the mother of the appellant, sought leave to appear. I refused that application. Rule 4.01(1) of the Federal Court Rules 2011 (Cth) provides:

‘(1)    A person may be represented in the Court by a lawyer or may be unrepresented.’

2    The effect of rule 4.01(1) is to prevent Ms Foong appearing. Of course, it is possible for the Court to exercise a dispensing power, and to relieve her son from the operation of rule 4.01. This could be done under rule 1.34, which provides:

‘The Court may dispense with compliance with any of these Rules, either before or after the occasion for compliance arises.’

3    The question is, what are the circumstances in which that discretion ought to be exercised in favour of a person or persons in the position that the appellant and his mother presently find themselves. Dealing with a slightly different statutory regime, the New South Wales Court of Appeal considered the circumstances in which a non-lawyer should be permitted to appear before a court in Damjanovic v Maley (2002) 55 NSWLR 149. The principal judgment was given by Stein JA, following an exhaustive examination of the authorities in this area. His Honour stated at paragraphs 69-86 the relevant considerations of which account should be taken. These were:

(a)    the complexity of the case;

(b)    genuine difficulties of the unrepresented party;

(c)    the unavailability of disciplinary measures and a duty to the court by lay advocates;

(d)    protection of the client and the opponent;

(e)    the position of lay advocates in inferior courts and tribunals (not here relevant); and

(f)    the interests of justice.

4    I see no reason why those principles should not be applied in a case where an application is made to dispense with the operation of rule 4.01 under rule 1.34.

5    The present appeal is reasonably complex, and involves, at least potentially, issues about bankruptcy and related matters. I accept that Ms Foong, by reason of her involvement at anterior steps in this litigation, has obtained a knowledge of the matters. But having heard Ms Foong deal with her application to appear on behalf of her son this morning, I am by no means satisfied that she has any grasp of the operation of the legal system or the rules of evidence.

6    Notwithstanding my observation that the appeal is reasonably complex, I would rate the level of that complexity as being at the lower end. Regardless, I am satisfied that it is beyond Ms Foong’s capacity to make useful or practical submissions. I accept, insofar as the position of her son is concerned, that he appears to have some difficulties in appearing. However, there is no evidence before me to explain precisely what those difficulties are, and my impression is that Ms Foong simply is of the view that it would be better that she appeared rather than her son. In particular, I am not satisfied that Mr Foong is any better represented by his mother than he would be represented by himself.

7    I note the unavailability of disciplinary remedies over a person in the position of Ms Foong. I also note that this is not the Local Court of New South Wales, where lay people appear more frequently. This is the Federal Court. The respondent to the appeal has been making plain its objection to Ms Foong appearing for a long time, and she is undoubtedly on notice of that objection. When the matter came before me last week, the appellant was represented by eminent senior counsel and junior counsel, who applied for and were successful in obtaining an adjournment. It was made quite plain at that time that this matter would be heard today, come what may, and it was equally plain at that time that Mr Holt would be persisting in his objection if Ms Foong sought to appear.

8    Insofar as the interests of justice are concerned, I have no doubt that they favour dismissing Ms Foong’s application to appear. Her involvement in the proceedings, having regard to its history, seems to have greatly complicated what was once a fairly straightforward matter, by reason of the filing of affidavits largely consisting of irrelevant material, pursuing arguments which have no legal substance, and failing to grasp in any real sense the procedural or substantive aspects of the litigation which she has assisted her son in commencing. In those circumstances, I have no doubt that the interests of justice favour refusing Ms Foong’s application to appear for her son.

9    That leaves before the Court Mr Foong’s notice of appeal from the decision of Judge Driver. Judge Driver heard a review of a decision of a registrar to make a sequestration order in respect of Mr Foong’s estate, and his Honour reached the same conclusion that the registrar did. The underlying dispute which gives rise to these proceedings is Mr Foong’s failure to pay his strata levies under the Strata Schemes Management Act 1996 (NSW). Having failed to pay those levies, he was sued by the relevant owners corporation which ultimately obtained default judgment against him in the Local Court. That judgment then formed the basis for the issuing of a creditor’s petition.

10    A notice of grounds of opposition was filed to that petition and that notice of opposition was heard by Judge Lloyd-Jones, whose reasons for judgment were handed down by Judge Barnes. The grounds of opposition were rejected. The consequence was that the matter was referred back to the registrar to deal with the balance of the creditor’s petition, and it was in those circumstances that the registrar made the sequestration order that he did.

11    The notice of appeal contains three grounds of appeal. They are:

1.    Set aside default judgement [sic] at Local Court.

2.    Agreed $500 monthly plan has not been missed.

3.    The amount of the debt is not correct.

12    The relief which is sought on the basis of those grounds of appeal is (errors in the original):

Set aside the following:

1.    Set aside the sequestration order against my estate.

2.    Set aside the Bankcruptcy order against me.

3.    dismiss all the costs related to the Bankcruptcy proceeding and dismiss all the 6 items on the order 30 September 2013.

13    Turning to the first ground of appeal, except in limited circumstances which are not presently relevant, this Court has no jurisdiction to set aside a default judgment of the Local Court. Insofar as the agreed monthly plan is concerned, the material concerning that agreement was considered by Judge Driver and consisted solely of an email in which one member of the body corporate mentioned the $500 arrangement. It is not suggested before me that there was other material before Judge Driver apart from that email. In that circumstance, I cannot see that there is any possibility that I could uphold that ground of appeal.

14    Insofar as the third ground is concerned, namely that the amount of the debt is not correct, I take that to be an allegation that the sums claimed in the petition are not correct. Leaving aside the point that there is no material before me upon which I could resolve this debate, nevertheless it is apparent from the face of the petition that the point being made is that various amounts claimed in the petition had, in fact, been paid, with the consequence, so it may be said, that the petition claims the wrong amount. However, examination of the petition shows that all of those payments happened after the original bankruptcy notice was issued. In that circumstance, it does not seem to me to be relevant.

15    In those circumstances, I consider that the notice of appeal is without substance, and I dismiss it with costs.

16    I will make the following orders:

1.    The appeal be dismissed.

2.    The respondent creditor’s costs, including reserved costs, be taxed and paid in accordance with the Bankruptcy Act 1966 (Cth).

Associate:

Dated:    9 April 2014