FEDERAL COURT OF AUSTRALIA

Nepal v Minister for Immigration and Border Protection [2015] FCA 366

THE COURT ORDERS THAT:

1.    The interlocutory application filed on 17 March 2015 be adjourned to the commencement of the appeal on 25 May 2015.

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

REASONS FOR JUDGMENT

This interlocutory application

1    This is an interlocutory application brought in Mr Nepal’s appeal. Mr Nepal’s appeal is scheduled to be heard in Brisbane on 25 May 2015. Although my conclusion is that the interlocutory application should be adjourned to the commencement of the appeal, these reasons are provided orally, and will be sent later today in writing, to assist the parties in their understanding of how the appeal will be conducted, and why it will be conducted in that way.

2    This interlocutory application is brought by Mr Nepal. The application and submissions were prepared by Mr Remely who is not a party to the appeal. Mr Remely lives with Mr Nepal. Mr Remely has a strong command of English. He has an understanding of law and legal principle although he is not a lawyer. Mr Nepal appears to have a reasonable command of English although it is not as strong as that of Mr Remely. I also accept Mr Nepal’s statement that his limited understanding of the law would make it difficult for him to make any submissions on his appeal.

3    In his interlocutory application, Mr Nepal seeks orders that Mr Remely is entitled to represent him in the appeal. His application asserts that:

(1)    ss 276 and 280 of the Migration Act 1958 (Cth) authorise the sponsor of a visa applicant to represent the applicant in court, and

(2)    that he is the sponsor of Mr Nepal’s visa application and is therefore entitled to represent Mr Nepal in the appeal.

4    Mr Nepal sought to have this interlocutory application heard by telephone link (Federal Court of Australia Act 1976 (Cth) s 47B). In the brief time that I had to peruse the materials I considered that this was appropriate. However, I consider that the interlocutory application, which raises similar legal issues as ground 2 of the appeal, should be determined at the commencement of Mr Nepal’s appeal in light of the parties’ written submissions and any subsequent oral submissions.

5    No formal application has been made for the appeal to be heard by telephone or video link. However, at the hearing of the interlocutory application this morning, Mr Remely foreshadowed that Mr Nepal would make an application for the appeal to be heard by telephone link to his home.

6    Mr Remely gave several reasons why he and Mr Nepal wish to have a hearing by telephone link. One reason was Mr Remely’s blindness in one eye and his restricted view in his other eye. Another reason was that neither Mr Nepal nor Mr Remely have any income; they cannot afford to travel to Brisbane. Mr Remely also described the stress that a courtroom hearing would place upon him and Mr Nepal; this submission is enhanced by the evidence of Mr Remely’s medical conditions. Mr Remely accepted that it was possible for him to attend a court in Bundaberg for an oral hearing by video link. Mr Nepal said that he was able to attend that court with Mr Remely. As I explain below, I consider that course to be appropriate. A video link with the Bundaberg Court, at 44 Quay Street Bundaberg, has been arranged for 25 May 2015 from 10.15am. The Minister has also undertaken to provide enlarged copies of the documents relied upon for the appeal (including the Minister’s submissions), for the use of Mr Nepal and Mr Remely at the appeal hearing.

Mr Nepal’s appeal

7    Mr Nepal’s appeal, in which this interlocutory application is brought, is from an unpublished decision of Judge Coates of the Federal Circuit Court, given on 13 February 2015 (Nepal v Minister for Immigration [2015] FCCA 305). Judge Coates considered whether the Migration Review Tribunal had committed a jurisdictional error when it affirmed the decision of the Minister to refuse to grant Mr Nepal a Partner (Temporary) (Class UK) Visa under s 65 of the Migration Act. Judge Coates ordered that the application for judicial review be dismissed and that Mr Nepal pay the Minister’s costs.

8    The hearing by Judge Coates was conducted in Bundaberg, where Mr Nepal lives. Judge Coates travelled to Bundaberg after he determined that there were extreme difficulties in conducting the matter by telephone link, including communication between the court and Mr Nepal and Mr Remely. Mr Nepal did not appear at the hearing of the appeal in Bundaberg. Neither did Mr Remely. Judge Coates had previously explained at a directions hearing that the court might determine the matter in Mr Nepal’s absence if he did not attend the hearing.

9    Mr Nepal has five grounds of appeal from Judge Coates’ decision. Ground two is expressed as follows:

In the course of three directions hearing. Judge Coates finally determined that Mr Remely, Mr Nepal’s Partner was not his sponsor, thus denying him to represent Mr Nepal in court as set out in ss 276 & 280 of the Migration Act 1958. Mr Remely is aggrieved by not being allowed to represent his partner. Mr Remely is also aggrieved by not being able to carry out his sponsorship obligation.

The appropriate order in this interlocutory application

10    The appropriate order in this interlocutory application is simply to adjourn Mr Nepal’s interlocutory application to the commencement of the hearing of the appeal. This is because the legal issues raised in this interlocutory application overlap with ground two of the appeal. Both involve the construction of ss 276 and 280 of the Migration Act. The same issues of construction arise in relation to whether Mr Remely was entitled to represent Mr Nepal in the Federal Circuit Court (ground two) or whether he is entitled to represent Mr Nepal on this appeal (the interlocutory application). It is appropriate to consider those issues of construction at the same time, and in light of the written submissions of the parties.

11    One additional issue associated with ground two of Mr Nepal’s appeal is that ground two is concerned with a different decision of Judge Coates. The decision of Judge Coates which held that Mr Remely could not represent Mr Nepal in the Federal Circuit Court on 13 February 2015 (and about which ground two is concerned) was a decision of Judge Coates given on 27 October 2014 (Nepal v Minister for Immigration [2014] FCCA 2463). This is not the 13 February 2015 decision which is being appealed. It appears that an appeal was initially brought by Mr Nepal from this 27 October 2014 decision but that appeal was subsequently discontinued on 6 February 2015 (see file number QUD 681/2014).

12    Although there are additional issues raised by ground two of the appeal, the common issue of construction makes it appropriate for this question to be dealt with concurrently with appeal ground two in light of the written submissions and any oral submissions on this issue.

A role for Mr Remely as a McKenzie friend

13    There may be a basis at common law, independent of the question of construction of ss 276 and 280, by which Mr Remely might be permitted to speak in support of Mr Nepal at Mr Nepal’s appeal. The basis upon which Mr Remely might be permitted to speak is an extension of the discretion of the court to permit a person to assist as a ‘McKenzie friend’. Mr Remely submitted that there was no scope for him to be a McKenzie friend because he has a legal right to appear under ss 276 and 280 of the Migration Act. Even if I were to determine that he is ultimately correct in his construction of ss 276 and 280, there would still be a preliminary point about whether he could address me to make that argument before my determination. Counsel for the Minister did not oppose Mr Remely appearing as a McKenzie friend and making oral submissions, either for the purpose of making that argument or for the conduct of the appeal. I consider that this stance was appropriate.

14    The label ‘McKenzie friend’ comes from the decision of the Court of Appeal in England in McKenzie v McKenzie [1970] 3 WLR 472, although the principle is much older. At first instance, in McKenzie v McKenzie, Lloyd-Jones J had refused to allow an Australian barrister to assist a party in family law proceedings by sitting at the bar table and prompting the party. The Court of Appeal quoted from Lord Tenterden CJ in Collier v Hicks (1831) 2 B & Ad 663, 669; 109 ER 1290, 1292 that '[a]ny 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.' Sachs LJ explained that litigants ‘should be seen to have all available aid on conducting cases in court surroundings, which must of their nature to them seem both difficult and strange': McKenzie v McKenzie [1970] 3 WLR 472, 479.

15    On occasion, courts have denied an application by a person to make oral submissions (by extension of this concept of a McKenzie friend) on the basis that a McKenzie friend cannot perform the role of an advocate: Santos v The State of Western Australia [No 2] [2013] WASCA 39 [10] (McLure P). I doubt whether there is any such absolute prohibition on assistance by making oral submissions: see O'Toole v Scott [1965] AC 939, 952 (the Privy Council); Hubbard Association of Scientologists International v Anderson [1972] VR 340, 342-343 (the Court); Schagen v The Queen (1993) 8 WAR 410, 412 (Malcolm CJ); WACX v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1538 [11] (Carr J). Nevertheless, where a party cannot obtain representation by a lawyer, great care must still be taken before allowing a non-lawyer to speak for the party to legal proceedings. The non-lawyer is not regulated, the non-lawyer has not been trained in the ethical duties of lawyers to the court, and the non-lawyer may do more harm to the party than good: see Cristovao v Registrar Caporale [2012] FCA 1329 [28] (Murphy J). The stance of the Minister in this case, however, recognises the limits and constraints placed upon Mr Nepal in conducting his appeal as well as the apparent ability of Mr Remely.

16    No issue has been raised before me, nor has it been raised on any of the previous occasions in these proceedings where Mr Remely has been permitted to address the court, concerning whether r 4.01(1) of the Federal Court Rules 2011 (Cth) prohibits a person addressing the court as a McKenzie friend. That rule provides that ‘[a] person may be represented in the Court by a lawyer or may be unrepresented’. See also Judiciary Act 1903 (Cth) s 55B. It is not necessary to decide this point, although there are reasonable grounds for a submission that these provisions do not prohibit the exercise of a discretion to permit a person to assist a party by addressing the court: see, by comparison, the discussion in Hubbard Association of Scientologists International v Anderson [1972] VR 340, 341-342 (the Court) and O'Toole v Scott [1965] AC 939, 952 (the Privy Council).

The manner in which the appeal should be heard

17    Even taking into account the difficulties for Mr Nepal and Mr Remely in being heard in a manner other than a telephone link, I consider that for the proper conduct of the appeal I should see both Mr Nepal and Mr Remely as well as hear from them. It has been said that it will be a ‘rare and exceptional case’ in which a person other than a duly qualified legal practitioner will be permitted to address the court or otherwise take an active part in the proceedings: McLean v Westpac Banking Corporation [2013] FCA 126 [8] (McKerracher J); Schagen v R (1993) 8 WAR 410, 412 (Malcolm CJ with Franklyn and Walsh JJ agreeing). Even though these cases may now be less rare than they once were, there are still good reasons why an occasion when a non-lawyer is permitted to make oral submissions in support of a party should usually be in circumstances in which the judge can observe the demeanour, response, and comprehension of the party.

18    Quite apart from whether Mr Remely will act as an (extended) McKenzie friend of Mr Nepal or not, I consider that the appeal should be heard by video link so that I can observe both Mr Remely and Mr Nepal in the course of submissions. One reason for this course is that the orderly conduct of the proceedings will be enhanced by a video link. It will be far easier immediately to see Mr Remely concurrently with the demeanour of Mr Nepal including whether Mr Nepal wishes to add anything. I am also conscious of the difficulties described by Judge Coates in his judgment on 27 October 2014 concerning the hearing he conducted by telephone link: Nepal v Minister for Immigration [2014] FCCA 2463 [101]. I consider that it will be clearer and more comprehensible to have a video link which will also enhance the ability of the court to control proceedings. Further, Mr Remely’s doctor has provided evidence that due to Mr Remely’s medication he frequently has difficulty in remaining concentrated and focused. This is a strong reason for a hearing to be conducted by video link so that I can see if, and when, any short breaks and rests should be provided to accommodate Mr Remely. The proximity of the courtroom video link in Bundaberg to Mr Nepal’s home should also assist to alleviate some of the stress of the proceedings upon Mr Nepal and Mr Remely.

19    There are further accommodations that were appropriately offered by counsel for the Minister. Counsel for the Minister undertook to provide to Mr Nepal enlarged copies of the documents to be relied upon at the appeal. In light of Mr Remely’s accurate observation that this appeal was concerned with legal issues, and his observation that the only additional documents that Mr Nepal would file before the appeal would be legal submissions, counsel for the Minister also undertook to file and to serve the Minister’s written responsive submissions within 5 days of receipt of Mr Nepal’s written submissions. This means that if (as Mr Remely suggested might be the case) Mr Nepal is able to file and serve his written submissions within the next week or so, then Mr Nepal will receive the Minister’s written submissions around 4 weeks prior to the appeal. I will also grant Mr Nepal liberty to file and serve any written submissions in response to the Minister up until three days prior to the appeal.

Conclusion

20    Mr Nepal’s interlocutory application for Mr Remely to make oral submissions in support of his case will be determined at the commencement of the appeal in light of written submissions on this issue (which overlaps with ground two of the appeal), and any oral submissions. The appeal will be held on 25 May 2015, with a video link to the Bundaberg Court to accommodate Mr Nepal and Mr Remely.

Associate:    

Dated:    21 April 2015