Friday, December 8, 2017


See the Professional Liability Blog of Barrister Stephen Warne: Supreme Courts tell legal regulators their limitation defences are bollocks Posted: 07 Dec 2017 05:12 PM PST In England, the stern sounding Bar Standards Board brought disciplinary proceedings against a black barrister, Portia O’Connor, the first barrister to become a partner in one of the very modern alternative business structures they allow in old Blighty these days.  They succeeded but the decision was overturned on appeal and the appellate tribunal was not complimentary about the procedures of the Board.  So the barrister sued the Board for discrimination.  The regulator relied on limitation defences. The Supreme Court has just decided that the defences were misconceived: O’Connor v Bar Standards Board [2017] UKSC 78.  Should be an interesting case. Meanwhile, in Kaczmarski v Victorian Legal Services Board [2017] VSC 690 the Board, represented by an external firm of solicitors and experienced counsel, tried unsuccessfully to shut an unrepresented shareholder of an incorporated legal practice out of an appeal against the reappointment of an external manager to the practice.  It did so by arguing for an extraordinarily strict and as it turned out quite wrong approach to what it said was an un-extendable 7 day time limit for appealing. I must say I’m puzzled what all the fuss was about, in view of s. 155 of the Legal Profession Uniform Law Application Act 2014.  That section makes clear that nothing in the LPUL limits or restricts the Supreme Court’s administrative law jurisdiction, so that the reappointment of the external manager might have been challenged by judicial review, for which order 56 of the Supreme Court’s rules provides a 60 day extendable time limit, or under the Administrative Law Act 1978 which provides a 30 day time limit.  But neither side seems to have made argument by reference to it.  The bases on which the decision might have been challenged, and the relief available might well have been different between the three avenues of challenge, of course. The problem with the strict approach was that it was wrong, very wrong.  The reappointment of the manager, who vexed the appellant so much that one of the orders sought on the appeal was that the manager be ‘charged criminally and takes a mental assessment by an independent psychiatrist doctor from another state’, occurred on 28 April 2017 and was notified to the appellant by letter of that date.  But, it turns out, the Board did not post it until 1 May 2017.  The appellant received it on 10 May 2017, but the Board argued that s. 445 of the Legal Profession Uniform Law which said documents must be taken to have been served two business days after posting admitted of no exceptions, and the Court agreed (at [47]).  (Given the Board’s enthusiasm for this provision, one might think it important that they would post letters on the date that they bear.   Otherwise the recipients might look up the law and assume that service would be taken to have been effected two business days after the date of the letter, conclude that they are out of time, and not prosecute rights which they actually could have prosecuted, but that is an aside.) The question was whether the appellant lodged his appeal within 7 days of 3 May 2017. At 7.43 p.m. on 10 May 2017, the day he received the decision he appealed, the appellant’s son (the director of the practice) emailed Shane Draper at the Supreme Court a notice of appeal on his own and his father’s behalf.  The covering email said in part that Mr Draper had: ‘advised [the appellant] and myself that an email needs to be sent to this email address advising the Supreme Court of an objection to an Appointment of a Manager to a law firm …, together with a request that your office provide both [the appellant] and myself with a hearing date. This email serves such a purpose.’ The Board argued that the notice of appeal was not ‘lodged’ until it was considered and sealed by the Court’s registry, which did not occur until days later, when a fee waiver application had been processed.  The Board relied on a dissenting judgment in a Full Federal Court case from 1988 which was ‘not supported by other authority’ according to the Supreme Court and was in fact inconsistent with Full Federal Court authority from 1998. The Board contended that the later unanimous decision of Finkelstein J and two other judges could and should be distinguished because it construed a provision which spoke of an appeal being ‘lodged with a Registry of the Federal Court’ whereas s. 358 of the LPUL simply said ‘(1) An aggrieved person may, in accordance with applicable jurisdictional legislation, appeal to the designated tribunal [defined to mean the Supreme Court] …  (3) The appeal … is to be lodged within 7 days after notice of the appointment is served’. Ierodiaconou AsJ gave this argument very short shrift at [33].  Not only was the Board’s interpretation based on a dissenting judgment which did not amount to the ratio of the case and which had subsequently been unanimously disapproved by the same Court, but it was inconsistent with a subsequent comments about the concept of ‘lodgement’ made by a judge of the Court of Appeal in 2004, and a 2017 decision of the ACT Supreme Court. Then the Board said that initiating process such as that which initiates an appeal could not be filed electronically.   Ierodiaconou J found that rules about filing were not to the point in determining how a document may be lodged since lodgement and filing are two different things, each of which is referred to in the Supreme Court’s rules.  And, her Honour pointed out, one of the purposes of the Electronic Communications Act 2000 is to ‘enable the community to use electronic communications in their dealings with government’, and s. 8 permits the lodging of claims by electronic communication where the recipient may be inferred to have consented to receiving the communication electronically.  Consent was easily inferred by her Honour by reference to a practice note issued by the Court which told people to communicate with the Court by email and indeed from the terms of the email itself which said that Mr Draper had asked the appellant to send it. So there you go, peeps, if a regulator sicks a manager or superviser on your practice and you don’t get the decision until the last day to appeal it because service occurred a couple of days before you received it, just drop the Supremes a note by email sometime before midnight and you should be right.  If not, gird your loins and seek judicial review, never forgetting that every decision by legal regulators under the LPUL which affects your rights is probably challengeable by old fashioned administrative law remedies, regardless of how constrained the appeal / review rights provided for by the LPUL appear to be.   The post Supreme Courts tell legal regulators their limitation defences are bollocks appeared first on The Australian Professional Liability Blog.

Thursday, November 30, 2017


Nicholas Ni Kok Chin 387 Alexander Drive DIANELLA WA 6059 Ph: 08 92757440 Mobile: 0421642735 Email: Date: 1st December, 2017 Mr. Dennis Barich Legal Officer Legal Practice Board of Western Australia Level 6, 111 St. Georges Terrace, PERTH WA 6000 Ph: 6211 3600 Email: GENERAL@LPBWA.COM PRIVATE AND CONFIDENTDIAL Dear Sir ENGAGING, OR REPRESENTING ENTITLEMENT TO ENGAGE, IN LEGAL PRACTICE WHEN NOT ENTITLED Thank you for your reply letter dated 30th November, 2017 to my response to your earlier letter dated 29th November, 2017. I would to respond to you as follows: 1. I agree to your paragraphs 1 and 2. 2. As to your paragraphs 3, I have acceded to your request to re-enter my Linked-In website at: and I saw my barrister portrait photo with barrister’s wig, and robe and but no jabot, and I did the following things: 2.1. I clicked on More and clicked on Report/Block and I clicked on a Window: “What do you want to do? came up. 2.2. I then clicked on “Report the Image” then a window with “Tell us a little more”. 2.3. I then clicked on “I think this image is offensive or inappropriate.” and clicked on “Submit”. 2.4. I have done everything I could to remove what you consider to be an offensive image and there is nothing else that I can do. 3. As to your paragraph 4, I could not find anywhere in my blogger profile in JUSTICE FOR A FORMER LAWYER, the words: “can practise law under supervision” as at: I therefore exercised my discretion by adding the following words under the heading Favourite Movies, the following words: I am now being told by Mr. Denis Barich that even if I wanted to, I cannot practise a lawyer under supervision as at 30.11.2017”. 4. As to your paragraph 5 (1), I have taken the following steps: 4.1. Prima facei my mind would link to Mr. Ian Robert Jack, my builder to this website: 4.2. The reasons for this link are the following: 4.2.1. He assaulted me on 3.11.2017; 4.2.2. He probably pissed on my evaporative air conditioner and we had the smell of urine for a few days within the vicinity of 3.11.2016. 4.2.3. Nicolas Watson electrician unreasonably demanded monies in July 2017 that is not due to him and it is is probably incited by Ian Jack, who had contact with him. 4.2.4. My Nissan X Trail windscreen was screwed to smithereens some time in July 2017 when Ian Jack was building the front unauthorized retaining wall as part of his contract work. 4.2.5. I have lodged a police report for the broken windscreen suspecting it was Nicholas Watson but now thinks otherwise. 4.2.6. Ian Jack was always harping on the fact that if I were to complain against him for the uncompleted works or the unauthorized works despite having been over paid by my spouse an overreached sum of $2,7904.61 for the full price of the job of about $.... of monies contributed by my family for the job. 4.2.7. I have no idea of how that website bearing my name as barrister and solicitor is appearing there and I would not want to ask nor contact anyone for fear of antagonising someone. I would never have written my name as such as I have always disclaimed in every other site that I am a practising barrister and solicitor and why should I be doing it otherwise in this particular website. 4.2.8. I do not even know that it exists until Mr. Barich’s letter dated 28.11.2017 when I discovered it and I have reported to ACORN to deal with it. 4.3. As for the link, I clicked on it and there is message which says: Unable to open: - cannot locate the internet server or proxy server. Yours faithfully NICHOLAS N CHIN


Nicholas Ni Kok Chin 387 Alexander Drive DIANELLA WA 6059 Ph: 08 92757440 Mobile: 0421642735 Email: Mr. Dennis Barich Legal Officer Legal Practice Board of Western Australia Level 6, 111 St. Georges Terrace, PERTH WA 6000 Ph: 6211 3600 Email: GENERAL@LPBWA.COM PRIVATE AND CONFIDENTDIAL Dear Sir ENGAGING, OR REPRESENTING ENTITLEMENT TO ENGAGE, IN LEGAL PRACTICE WHEN NOT ENTITLED Thank you for your reply letter dated 29th November, 2017 to my response to your earlier letter dated 28th November, 2017. I would to respond to you as follows: 1. I agree to your paragraphs 1, 2 and 4. 2. As to your paragraphs 3 and 5, I have removed the image of myself with a wig and robe from this website: 3. As to your paragraph 3, I have also removed at: 4. As to your paragraph 6, I did the free work for our Builder Ian Jack to claim from the 389 Alexander Drive neighbour for half of the costs of the dividing fence which that neighbour benefits from the HIA Contract that was entered into between my wife Irene Yok Moy Lem and the Builder dated 23.6.2016. I was always overreaching with Builder Jack to the extent of having over-paid him the sum of $2,704.61 to get him to complete the outstanding building works as the Builder was breaching his terms of the HIA Contract. The matter came to a head when the Builder assaulted on 7.40 am on 3.11.2017 which triggers our complaint to the Building Commission Complaints Branch on 6.11.2017 in Complaint No. C153682. The matter is now with its Complaint Officer Ms. Nicole Sadler who can be contacted on 08 6251 1264. 5. As to your paragraphs 7 and 8, I wish to state that the reason I was stating that it was pro-bono work that still needs compensation was to coax the Builder to connect the antennae tv points which he had installed and were not working on the ground that if you sold me a product it must be suitable for the purpose. He readily obliged to do it on the basis of the coaxed tit-for-tat, where no money ever changed hands for this purpose as he had a duty and obligation to fulfil his terms of the contract. It so transpired that the Builder had been paid the full price of HIA Contract plus the overreaching amount of $2,704.61 caused by his tricks for payment of each stage of the works leaving the last stage of the work incomplete under circumstances that there is no more money for the Builder to continue working on the project. 6. In the premises, the reason for Ian Robert Jack the Builder to assault me was to intimidate and to stop me from lodging the Housing Commission Complaint which resulted from the City of Stirling Building Compliance Officer Ms. Claire Johnson issued four orders dated 27.9.2017 for the Builders’s construction work that was not done efficiently: namely using improper insulation materials, not constructing the New Addition in accordance with the Engineers’ Plans and not applying for change of Change of Engineering Plans and doing unauthorized works and not completing the project. 7. Besides, Ian Jack was always using his misconceived idea that I could be intimidated to refrain from complaining to the Building Commission by himself holding to the argument that I was paid for any legal work done in exchange for making the three antennae points which he had installed to work. It on this basis that he had assaulted me and this forms the basis of my police report at the Morley Police Station on 10.11.2017 with PC Bullen in Police Report No. 10112017130014921 and Violence Restraining Order No. MC/CIV/MIDRO/1005/2017. 8. I believe that Builder Ian Jack must have contrived this advertisement at for which I am conducting a Practical Legal Training Course with such finesse as to how to get to 387 Alexander Drive, Dianella when I never have this course available at all and of which I was never aware of. I have therefore contacted Police WA who has referred me to report to ACORN. Yours faithfully NICHOLAS N CHIN

Tuesday, November 28, 2017


Nicholas Ni Kok Chin 387 Alexander Drive DIANELLA WA 6059 Ph: 08 92757440 Mobile: 0421642735 Email: Mr. Dennis Barich Legal Officer Legal Practice Board of Western Australia Level 6, 111 St. Georges Terrace, PERTH WA 6000 Ph: 6211 3600 Email: GENERAL@LPBWA.COM PRIVATE AND CONFIDENTDIAL Dear Sir ENGAGING, OR REPRESENTING ENTITLEMENT TO ENGAGE, IN LEGAL PRACTICE WHEN NOT ENTITLED Thank you for your letter dated 28th November, 2017 and I would to respond to you as follows: 1) I have never been engaging or representing entitlement to engage in legal practice since the 12.12.2012. 2) About your paragraph 2.1. my website at has a portrait of me wearing a wig and a robe and this is correct: that is my ceremonial clothing when I was admitted as a barrister and solicitor by the Supreme Court of Western Australia on 19.12.2003. It represents my history and it does represent that I am engaging or representing entitlement to engage in legal practice when not so entitled. (the Wig and Robe Representative of My Life-History). 3) The Wig and Robe Representative of My Life-History is explained by the following words: “I was a school teacher and was a lawyer. I am not currently certificated as a lawyer and am fighting my case for any wilful professional misconduct.” 4) I am a retired old man and is wont to do some philanthropic duties as an indication of my Christian love for my neighbour of which I am best at because I have dedicated my whole life to the study of the law since I was a school boy and I never stop learning about the law because it is the only subject which I have a passion for. I explain this trait of my character in these words: “Interests: I would like to help people who are distressed and cannot find their way through the legal system on a pro bono basis in a legal way by not contravening the law and I do not represent that I am entitled to be engaged in legal practice pursuant to subs.13(1) of the Legal Profession Act, 2008 (WA). As from today, I cannot use the title lawyer nor legal practitioner nor barrister nor solicitor. This might give the public the wrong impression that I am entitled to be engaged in the independent practice of the law. I can practise law under supervision but I exist because I want to protect the public interests that the ordinary person is not being given short shrift in the law, in so far as it is humanly possible for me to do so.” 5) About your paragraph 2.2: the caption JUSTICE FOR A LAWYER IN WESTERN AUSTRALIA is derived and adapted from the non-reply email Google Alert that I received from my email box all the time. It provides the current news affecting the integrity of judges and lawyers throughout the world and it by no means bears any connotation that I am claiming to be a currently-licensed lawyer notwithstanding the fact that I am a person who is trained to be a lawyer and have never been convicted of a crime and cannot be disbarred from his chosen profession for life whether in law or in equity. Such disbarment is unconscionable and abhorrent and is void both in equity and in law. 2 6) About your paragraph 2.1.: the logo of a jabot representing justice is never mine and I was never its author nor did I ever put it there or wherever it appears. Someone unknown to me put it there, for whatever reason, I do not understand it and did not try to understand it. I cannot delete it nor is it mine to delete. That Jabot Logo made its circulation after I have rejected for my name to be advertised in a magazine by one David who approached me soon after I was admitted to the Bar. But I had to reject that advert and gave him my reason for doing so. Since then, I used to see that Logo attached to my website or wherever my name appears. That signifies that members of the public are not happy about what had happened to me in such a short space of time for no wrongs. I was just trying to get justice for my client Nancy Cloonan Hall etc and many others who have been maligned by the law, which arise from the wrong-doings of other lawyers and the conspiracy is so overwhelming to cover them up such that it is no longer worthwhile for me to fight my case any more. I was found by a judge to have been frivolous and vexatious and its never the case. The Full Court of the Supreme Court of WA took away my name from the list of barristers and solicitors but one of the three was found to be dissenting. You must remember that I am now 72 years old. This situation happens to a chinaman in the State of Carlifornia and the Law Society honoured him posthumously after more than 134 years when he was long dead. It happened in New Zealand too, to another chinaman and it happened in WA. All these are found in various links of my postings. Incidentally, all those cases that I fought for have been vindicated by the various justices subsequently but not directly with me: the mistaken plight they have put me into have never been rectified. Its just too mind-boggling for me to keep fighting as I do get ill when I fight for my own matters as I become emotionally involved and I cannot spend money for lawyers to fight a losing battle for me. 7) About your paragraph 2.3: there is no denying the fact that I am involved in the industry of the Law as I cannot be stopped from doing pro-bono work for people who are lost in the maze created by the legal profession for them. Everytime if I am forced to do pro bono work as a McKenzie friend, I make sure that I have it in writing that the person involved signed a document for me verifying the fact that I have informed him that I am not a licensed legal practitioner and that I am not insured and that I am not giving him any legal advice but merely setting him or her on a trial of his case by papers. Probono also means that I have to be compensated for my outgoings. 8) About your paragraph 2.4: the caption A LAWYER FIGHTING FOR INDEPENDENT LAW PRACTICE does not connote that I am a legally licensed lawyer but that I have the qualifications of a legally qualified lawyer prior to my disbarment on 12.12.2012 and that the fight is still on and never-ending for an independent legal practice as it may happen one day long after my death. I do have the legitimate expectation that those who have done wrong to me will wake up to their wrongdoings and correct those wrongdoings which have already been partially corrected in some of the cases without referring to the wrongs done to me: as it is wrong for them in equity to deny me my basic human rights that I have a basic right to earn my living in the profession that I have chosen for life. It is akin to their putting an invisible walls to restrict my freedom and to imprison me invisibly - they will have to answer to the Almighty Creator for the wrongs which they have done to me deliberately. 9) About your paragraph 2.5: I maintain that I can practise law under supervision but I do not choose to be under supervision. This is what they wanted me to do at first - to undergo supervision under another lawyer so as to cover up the fault of the other party but no lawyer would want to see me thriving without making use of me as a slave for an indefinite period of time at this station of my life. Its only when I refused the offer of practising under supervision that they finally got me off the roll of barristers and solicitors on 12.12.2017. 10) As per your paragraph 12: at my linked in website:, those words: “barrister & solicitor at Nicholas n chin” is never my words. I 3 tried to delete it many times but it was placed there by the editors or Linkedin which I have no control to delete or remove. I therefore sought to qualify them by the following words: “I do not represent that I am entitled to practice law as a legal professional as I am in the process of being struck off the roll for no willful misconduct and victimless dishonesty. The test for dishonesty is misappropriation of property by deception through fraud or conspiracy. None of these elements exist. For more information, please see: Just remember that my knowledge of the law cannot be stolen from me. It just does not fit into the picture to have a crime without the criminal: things can go wrong and do go wrong and it cannot be rectified because we are all humans and humans have certain limitations. Only God the Almighty Creator can be all-seeing and all comprehending. Just look at what happened in California some 134 years ago and they are trying to correct it.” The Just Grounds Website and links attracted a lot of attention to the extent they remove it altogether. 11) As per your paragraph 5: There can never be any presumption to the general public that I am an Australian legal practitioner and that I am entitled to legal practice. I made my stand clear that there has been a wrong done to me that was not righted and it is an impossible task for me to set it aright in my lifetime as the conspiracy to defeat justice is just too overwhelming for me to counter as an ordinary human being and that there is no justice in disbarring me for a life-time when I have never committed any crime or defraud of anyone of any monies or wealth and that I am allowed to live my ordinary life and be in touch with the law and be there to right injustice remotely as a McKenzie friend. 12) In the premises as per paragraph 6, I have not contravened s. 12(2) of the LPA as I have not engaged in legal practice as a McKenzie friend with or without the consent of the court and that my name is never there as representing any litigant in court but any litigant is entitled to a trial by the papers which I can help them to prepare on a pro-bono basis. 13) In the premises, as per paragraph 7, I have not contravened s. 13(1) of the LPA in that I never represent nor advertise myself as a person entitled to engage in the practice of the law. 14) In the premises, as per paragraph 8, I do not claim myself to fall under the category of an Australian Legal Practitioner of s.5 of the LPA. 15) In the premises, as per paragraph 9, I have rejected the wrongdoing of the Board which requires me to be under supervision again after I have completed my year of supervised practice and I ought to be granted the right to practice independently but I was denied. More so, I have never been disbarred in accordance with the law or the decision disbarring me is fraught with error which I no longer wishes to counter. Therefore, I do not wish to be a lay associate under s. 15(3) of the LPA. 16) In the premises, as per paragraph 10, I have never represented myself as a “barrister and solicitor” as both the Jabot Logo and the Linked in Words are never written by me but I deleted them and it came back for which I have no capacity to delete it. Therefore I have never represented that I am entitled to engage in legal practice in breach of s. 11(1) of the LPA. 17) In the premises, as per paragraph 11, I have not been giving written or oral legal advice and I so advise each person if any, who seek my help in written form that I do not practise the law and do not give legal advice and whatever help that I do provide can never be relied by them as legal advice. I am only a McKenzie friend who is reputed to have been in legal practice in the past and have a Bachelor of Laws, an Admission Certificate as a Barrister and Solicitor and a Post Graduate Diploma in Business Law but I do not have a current practice certificate. Therefore I have represented that I am NOT entitled to engage in legal practice in breach of section 12(2) of the LPA. 18) In the premises, as per paragraph 12, the Board may consider whether I have breached ss.12 and 13 of the LPA having regard to the fact that I have aired the misdoings and the wrongdoings perpetrated upon me by the Conspiracy to Defeat Justice to put me away in 4 cold storage as an independent practising lawyer having regard to the fact that I am more learned in the law than most young lawyers because I have a compassion and life-long passion for anything law since my early secondary school days, barred by the fact that I have had to earn my living as a school teacher to help my father’s family and only formally took up my belated legal education when I was about fifty years of age, when I found my freedom of education in Western Australia. The justice system is humanly fraught with errors and the prejudice is so ingrained that it is overwhelming difficult for a chinaman like me to fight back because nobody would like to listen lest they be kicked out of the group for empathy or sympathy with my plight and I know it happens for sure. Once a properly admitted lawyer, he is always a lawyer unless he has been evicted from the legal profession by the conviction of a criminal act and even so he has a reprieve whereas I have none and I do not want to fight back. Let the justice come from the heavens. 19) In the premises, as per your paragraph 13, this reply letter do constitute my denial of any those alleged breaches and is dated 27.11.2017. 20) In the premises, as per your paragraph 14, I agree to remove those matters in both Linked In and Google only in relation to those words “barristers and solicitors” if I can do it and if it were in my power to do so and not otherwise. But I am afraid it is not within my bounds to do it as I have no control over those words. I am also NOT able to remove the word LAWYER as it signifies what I was and what I should be and those websites represents my continuing fight against the injustice done to me by the legal system and it remains for posterity to see and wake up to it, just as it has done so in the State of California and in New Zealand because the legal profession should not be made a monopoly for the privileged few who has no competition and who dislike whistle-blowers and will punish them by way of ostracism. To deny me this right to air my freedom of speech is a repressive and oppressive conduct of the regulator of the legal profession which has its aim to do the common good and to promote justice for all at the expenses of the coffers of the public. 21) In the premises, as per your paragraph 14 and 15, I shall call the writer Mr. Denis Barich after he has been given time to digest the information that I have provided and to seek to delve further into the truth of the matter for truth means justice and justice can only mean that the truth is being faced soberly and in reality by all the parties to the dispute and the adjudicators of the truths only and not fiction. Yours faithfully NICHOLAS N CHIN

Wednesday, April 26, 2017


Appeals from VCAT on the basis of Inadequate reasons Posted: 18 Apr 2017 07:40 PM PDT A while ago, my client settled an appeal to the Supreme Court from a decision of VCAT. I set out below extracts from my (sadly wasted) submissions in relation to the applicable law, so you will not have to reinvent the wheel should you suffer the misfortune of losing in an inadequately reasoned decision. A failure to give reasons is an error of law.[1] By way of example of the application of this principle, the Commissioner recently succeeded on this basis in a s. 148 inadequacy of reasons appeal against a decision of VCAT in LSC v Turner [2012] VSC 394 (esp. at [69] et seq, [77]). Seriously inadequate reasons are corrosive of public confidence in the administration of justice and ought not to be tolerated by an appeal court, since justice must not only be done but be seen to be done. This is the first public policy informing the requirement for reasons by courts and court-like tribunals. As the Supreme Court has observed: ‘To have a strong body of evidence put aside without explanation is likely to give rise to a feeling of injustice in the mind of the most reasonable litigant.’[2] That is especially so in relation to factual determinations where a right of appeal lies only on a question of law. Even more especially so in a quasi-criminal[3] prosecution with serious consequences for the practitioner in which the Commissioner carries the burden of proof as described in Briginshaw v Briginshaw. The second public policy which requires adequate reasons is facilitation of the exercise of a right to appeal (or to apply for leave). Where the path of reasoning is unstated or difficult follow it is difficult to attack on its merits, because it is unclear what the merits of the reasoning are, whether relevant considerations were ignored and whether irrelevant considerations were taken into account. Section 117 of the Victorian Civil and Administrative Tribunal Act 1998 requires the Tribunal to give reasons for any order it makes in a proceeding other than interim orders. Where there is a conflict on the evidence, and one version is accepted and the other rejected, the judge must avert to and assign reasons for that rejection: ACN 087 528 774 Pty Ltd v Chetcuti (2008) 21 VR 559, 566 at [20] per Hargreave AJA with whom Ashley and Dodds-Streeton JJA agreed.[4] Mere recitation of evidence followed by a statement of findings is insufficient to disclose a path of reasoning; indeed, it is ‘about as good as useless’: Hunter v TAC (2005) 43 MVR 143 [28], [37]. This is specifically so in relation to s. 117 according to Justice Kyrou, speaking extra-judicially.[5] In that address, his Honour said: ‘In a nutshell, adequate reasons are reasons that clearly set out the factual and legal issues for determination, the conclusions on those issues and the thought process that has been applied in reaching those conclusions.’ ‘VCAT’s reasons must be intelligible. Reasons are not intelligible if they leave the reader to wonder about the process of reasoning that has been followed’.[6] Where evidence which is not inherently improbable and is uncontradicted is not accepted, decision makers are required to give reasons for non-acceptance: Hardy v Gillette [1974] VR 392, 395-6. Decisions of VCAT have been set aside for a failure to give adequate reasons, notwithstanding the High Court’s caution against over zealous scrutiny of administrative decision makers in Minister for Immigration v Liang (1996) 185 CLR 259 and like admonitions.[7] That caution must apply less forcefully to appeals from VCAT in common law misconduct prosecutions seeking suspension of a solicitor from practice than in a small claim or a planning question in the Tribunal. The proposition that the standard of reasons required of decision makers ‘can vary markedly with the context’[5] cuts both ways: where a tribunal is called upon to determine a quasi-criminal prosecution, seeking interference with a sole lawyer director’s entitlement to practise, it must rise to the occasion. There is no reason why VCAT’s decisions in such a case, in which transcript is called for and written submissions ordered, and costs ordered against County Court scale should be of any lesser standard than those of a County Court judge, especially in light of the express obligation provided by s. 117. The trend seems to be to require better reasons from VCAT more generally than might have been demanded in the first half of the last century: Caruso v Kite [2008] VSC 207 at [32] (Kyrou J).[8] In professional conduct prosecutions in which findings of dishonesty are to be made, it is obviously important for reasons to make clear and careful findings about the state of mind of the allegedly dishonest person.[9] [1] Secretary to the Department of Treasury and Finance v Dalla-Riva (2007) 26 VAR 96, 102 at [23] per Buchanan JA with whom Ashley JA and Smith AJA agreed; Victoria v Turner [2009] VSC 66 [237]-[241]; Paul & Paul Pty Ltd v Business Licensing Authority [2010] VSC 460 (15 October 2010) [67]-[69]; E Kyrou, ‘Adequacy of Reasons’ [2010] VicJSchol 24; Secretary to the Department of Justice v Yee [2012] VSC 447 at [90] (Kyrou J). [2] Sun Alliance Insurance Ltd v Massoud [1989] VR 8, 18 (Gray J, with whom Fullager and Tadgell JJ agreed), re-stated by Rush J in Sun Alliance in Gray v Brimbank City Council [2014] VSC 13. [3] See Stirling v LSC [2013] VSCA 374 at [63] et seq. [4] They referred to Hunter v TAC [2005] VSCA 1 [21]-[22], Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317 and Sun Alliance Ltd v Massoud [1989] VR 18-19. The first and third decisions were followed in a s. 148 appeal from VCAT by Rush J in Gray v Brimbank City Council [2014] VSC 13 at [37] (referring to [28] in Hunter) and [55]. Hunter was approved in Franklin was followed in Pham v Legal Services Commissioner [2015] VSC 671 (Bell J), another s. 148 appeal and on appeal by Redlich and Kaye JJA: Pham v Legal Services Commissioner [2016] VSCA 256 at [88]. Consider also Ta v Thompson [2013] VSCA 344 at [56]. [5] ‘Adequacy of Reasons’ [2010] VicJSchol 24. [3] Secretary to the Department of Justice v Yee [2012] VSC 447 (Kyrou J), citing Commissioner of State Revenue v Anderson (2004) 24 VAR 181, 191 [33] and other authorities; LSC v Turner [2012] VSC 394 at [69]. [6] Quinn v LIV (2007) VAR 1 esp at [33] et seq, [42], [46]; Burgess v McGarvie [2013] VSCA 142 at [60] et seq.; LSC v Turner [2012] VSC 394 at [69] et seq. [7] Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, 498 [45]. [6] See also the following authorities which usefully summarise the NSW authorities: Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [65], Palmer v Clarke (1989) 19 NSWLR 158 at 170 (Kirby P); Qushair v Raffoul [2009] NSWCA 110 at [52], followed in Kalloghlian v Chubb Insurance Company of Australia Ltd [2016] NSWSC 902. [8] Consider Giudice v Legal Profession Complaints Committee [2014] WASCA 115 at [46], [108]-[109] and LSC v Brereton (2011) 33 VR 126 at [68] per Tate JA with whom the other judges agreed.

Wednesday, April 8, 2015


The Australian Professional Liability Blog Legal Services Commissioner seeks to overturn privilege against penalties Posted: 07 Apr 2015 05:08 AM PDT There is an old and well established privilege, the privilege against penalties, which is a relative of the privilege against self-incrimination. It entitles solicitors facing disciplinary prosecution to stay silent throughout the proceedings until the end of the Commissioner’s case unless the Tribunal makes an order requiring provision of written grounds and an outline of argument identifying in broad terms what is in issue. And even if such an order is made, compliance will not require the foreshadowing of any evidence or the admitting or denying of any facts. The other day, a full frontal attack by the Legal Services Commissioner on the privilege in disciplinary prosecutions of solicitors did not result in it being distinguished out of existence. Though there was no contradictor in the hearing, the President of VCAT, Justice Greg Garde, gave the challenge short shrift in LSC v Spaulding [2015] VCAT 292. Since practitioners started increasingly exercising their right to stay silent after the disciplinary investigation has concluded and before the conclusion of the Commissioner’s case, the Commissioner has begun increasingly to seek orders for the service of a notice to admit, despite the absence of any rule-based regime in VCAT governing the consequences of non-response to such notices. Some practitioners have consented to such orders and VCAT has made them. There may be grounds to review decisions in such cases where the practitioner did not ‘waive’ the privilege, since President Ross said: ‘in the absence of a statutory provision to the contrary, or waiver by a respondent, the effect of penalty privilege is that a respondent cannot be ordered to make discovery, produce documents, provide information or respond to a notice to admit.’ Waiver as a concept in the law generally requires a high level of deliberate abandonment. No doubt for that reason, the Commissioner began some time ago to alert practitioners to the existence of the privilege when proposing such orders. President Garde has also made clear that the Tribunal itself has a duty ‘to ensure that a respondent is informed of the options in order to make an informed and voluntary decision whether or not to waive the privilege.’ The President also observed that many professionals will wish to make admissions if for no other reason than to be seen to be appropriately cooperative, and to attenuate the issues and so diminish the costs which will be payable if the practitioner loses. My clients often make extensive admissions, sometimes make denials, but often remain silent in relation to some issues and strenuously resist the characterisation of such silences the matters about which they have stayed silent as ‘denials’. There is, however, nothing to be gained from consenting to an order to provide a response to a notice to admit. When, as I have found to be the case, the notices are framed in a manner which purports to graft onto VCAT’s procedures a presumption of admission in the event of non-denial, great procedural uncertainty is generated, because, unlike in the state courts, there are no rules of procedure which provide a legal basis to generate such an admission. And it will often be more convenient for the practitioner to craft the admissions in the form he or she considers most appropriate, possibly in a discursive letter, and at a time convenient to him or her. Furthermore, the notices to admit usually track the allegations in the Application itself extremely closely, regardless of the admissions made during the investigation in correspondence which is annexed to the Application, so that the requirement to respond to the notice to admit is akin to a requirement to serve a defence, and the drafting, filing and service of the notice to admit generates a substantial cost on a party-party basis. Finally, for some reason, no one ever seeks orders to serve notices to admit on the Commissioner. If, for some reason, one were to consent to orders for the provision of a response to a notice to admit, it would seem appropriate to me to reserve a right to reciprocity. The privilege against penalties operates at least in proceedings in courts and tribunals and lasts until the applicant for relief in the nature of a penalty (e.g. a fine) has closed its case. Since the High Court’s decision in Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543 (see at 559), it has been well understood that the privilege against exposure to penalty ‘now serves the purpose of ensuring that those who allege criminality or other illegal conduct should prove it’ (in the words of Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ with whom McHugh J agreed, in Rich v ASIC (2004) 220 CLR 129). So too has it been well understood since Rich that the privilege has operation in relation to civil penalty provisions and to cases in which loss of office is sought. There has been a little controversy about whether suspension from practice is a penalty, but that was not treated in Justice Garde’s decision which is, in any event, consistent with the better view as to the resolution of that controversy.Even those penal proceedings thickly veiled in cloaks of ‘protective not punitive’ (a nonsense beautifully unpicked by McHugh J in his concurring reasons in Rich) are recognised as proceedings for a penalty. In that case, ASIC argued that proceedings by which no fine or civil pecuniary penalty was sought, but orders disqualifying Rich from being a director of a company were sought, were not proceedings for a penalty. The plurality of the High Court said something which is the judicial equivalent of: ‘Whoa! Steady on cowboy.’ Namely: ‘That stream of authority would suggest that for the Commission to seek an order disqualifying a person from acting in the management of a corporation on the ground that the person has contravened the law is to seek a penalty or forfeiture. The order is sought by a regulatory authority; its grant would be founded on demonstration of a contravention of the law; it is an order which leads to the vacation of existing offices in a corporation and imposition of a continuing disability for the duration of the order. What is it that would deny that conclusion?’ The privilege was given routine effect to in an appeal from a professional disciplinary prosecution in Towie v Medical Practitioners Board of Victoria [2008] VSCA 157 where the Court of Appeal unanimously reversed VCAT and admonished it for ignoring the privilege in formulating directions inconsistent with it, observing that it will ordinarily be inappropriate in disciplinary proceedings where the professional is exposed to a penalty to require provision of an outline of argument, or any other written material which contains a positive assertion or denial of facts or requires an election by the applicant as to whether he or she intends to go into evidence or requires any proposed evidence the applicant intends to call to be the subject of a witness statement which must be produced and served on the other side, before the disciplinary prosecutor has closed its case (at [9]). The Commissioner’s attack on the privilege focused closely on the characteristics of the decision in Towie (only dicta, it was said, only a general observation, a case about a doctor, not a lawyer, and doctors do not have the same duty of candour towards the courts as lawyers do, which makes all the difference). But, as the President observed: ‘penalty privilege is firmly entrenched privilege underpinned by decisions of the High Court of Australia and Supreme Court of Victoria [and] the passage cited from Towie’s case represents the law in Victoria, and is not open to serious doubt’. Interestingly, one of the Commissioner’s arguments against the penalties privilege was that it gives rise to the possibility of a split case, in which the Commissioner is forced to seek an adjournment once the respondent’s case comes out. I have never heard of the Commissioner actually doing this, and nor have I ever heard of any other person propounding a case for a penalty doing this, though my clients have sometimes stayed very silent and disclosed considerable information only after the close of the Commissioner’s case, and though there is talk of it from time to time. The Commissioner’s attack on the privilege was brought in a case in which there was no contradictor, because the practitioner, it was alleged, had left for the US and was not participating in the proceedings. Justice Garde did observe, by way of obiter dictum, that it would be ‘open to the Commissioner in an appropriate case to seek from the Tribunal the opportunity of presenting a case in reply, or directions for the provision of additional evidence’, e.g. where the practitioner ‘uses “ambush” tactics intended or likely to cause disadvantage or unfairness to the Commissioner’ (at [28]). And therein lies the real future battle ground. What will be an ‘appropriate case’? When will staying silent amount to ‘ambush tactics’? Since the whole point of the privilege is to put the person at risk of the penalty at liberty to stay silent except to the extent ordered by the Tribunal to disclose that which may properly be required to be disclosed consistently with observance of the privilege, and since adverse inferences ought not usually to be drawn against a citizen who exercises a forensic privilege, presumably mere exercise of the privilege will not amount to ‘ambush tactics’. VCAT is a place where the courts’ rules of procedure apply only to the extent adopted by the Tribunal in a case by case basis, and whose own rules of procedure are, to say the least, amorphous (which is not to say that they are not rigorous, at least in theory, just that ascertaining their application to any particular scenario requires a broader enquiry than in courts bound by more closely worked out procedural rules). But even in such a place, it must be relatively unlikely that, having been obliged to come prepared to prove its case without assistance from the person from whom it seeks a penalty, having had every opportunity to compel the production of information, including information which would tend to incriminate the lawyer, during the investigation phase (a luxury the police could only dream of), and then having closed its case, it would properly be given leave to re-open its case, let alone be granted an adjournment to facilitate that, especially where the defence to be relied on was foreshadowed in the investigation phase, or the Commissioner should have been on notice of it as a result of matters which were foreshadowed during the investigation. If the police, without the benefit of a statutory phase of written interrogation prior to the commencement of proceedings, would not be permitted to do so in a murder trial, it is hard to see why a disciplinary prosecutor should be allowed to do so. Watch this space, and please keep me posted in relation to your own experiences of the privilege being negotiated around in the Tribunal. Finally, this is what Justice Garde said about the privilege: ‘Penalty privilege In Rich v ASIC, [7] the High Court described penalty privilege as one of a trilogy of privileges[8] that bear some similarity with the privilege against incrimination.[9] The privilege against exposure to penalties has long been recognised by the common law. It is also recognised in equity.[10] In equity, an order for discovery or for the administration of interrogatories in favour of the prosecutor would generally not be made where the proceeding was of a nature that might result in a penalty or forfeiture.[11] The penalties which attract the privilege include monetary exactions, loss of office, and proceedings for disqualification orders against officers of corporations.[12] The common law privilege against penalty comes from ‘the deep seated belief that those who allege the commission of a crime should prove it themselves and should not be able to compel the accused to provide proof against himself’. [13] The content of penalty privilege is discussed in Pyneboard Pty Ltd v Trade Practices Commission.[14] In an action for penalty, the court should, in the absence of statutory provision to the contrary, refuse to make any order for discovery, production of documents or the provision of information for the reason that an intended consequence of the discovery, production of documents or provision of information is the imposition of the penalty.[15] In addition to decisions of the High Court of Australia and elsewhere, penalty privilege has been given effect in a number of cases in the Supreme Court of Victoria.[16] In MH6 v Mental Health Review Board,[17] the Court held that an involuntary treatment order under the Mental Health Act 1986 (Vic) enlivened ‘those aspects of the hearing rule articulated in Towie’.[18] The consequences of an involuntary treatment rule include ‘the continued, indefinite and involuntary detention of the applicant’.[19] Procedural fairness would require that an involuntary detainee be given an opportunity to hear and respond to evidence that provides the jurisdictional basis for continued confinement.[20] In Re Australian Property Holdings Limited (in liq) (No 2),[21] Robson J held that a number of principles were established by authority: (a) in the case of self-incrimination privilege, the defendant must establish that the provision of information or the production of documents in the civil case leads to a real and appreciable risk of a criminal prosecution before the privilege can be invoked; (b) in an action to recover a penalty it is not necessary for a defendant to establish that there is a risk the defendant will be subjected to a penalty by providing information to the plaintiff. The plaintiff is seeking the information for that very purpose; (c) in civil actions, where no claim for penalty is made, the defendant must show that providing the information requested would tend to subject him to a penalty in separate proceedings before he can rely on the privilege; (d) the privilege against exposure to penalty is a common law right of privilege that may be availed of as of right and is enforced and protected by the Court; (e) the privilege against the exposure to penalty may be relied on by a defendant to a civil procedure in which a penalty is not sought (“the non-penalty civil proceeding”); (f) the privilege against the exposure to penalty extends to the obligation upon a defendant to plead, give discovery and answer interrogatories in the non-penalty civil proceeding; (g) as a general rule, the privilege does not entitle a defendant to a non-penalty civil proceeding to obtain an order in limine excusing him or her from giving discovery or answering interrogatories; (h) in exceptional circumstances, a defendant may be entitled to such orders in limine; (i) by extension, in exceptional circumstances, a defendant may be entitled to orders in limine that he may deliver a defence that departs from the Rules of Court only insofar as to protect his privilege against exposure to penalty; (j) exceptional circumstances may exist where the defendant to the civil proceeding is also the subject of separate civil penalty proceedings alleging the same or similar conduct; and (k) where a defendant seeks to take the privilege against exposure to penalty in a defence, the proper course is to plead accordingly and – if challenged – the defendant will be required to justify that the privilege is taken in good faith and on reasonable grounds for the privilege to stand. [22] Robson J accepted that in a penalty proceeding a defendant should not be required to produce documents or disclose information so assisting in establishing the defendant’s liability to penalty.[23] The principle extends to proceedings which are not penalty proceedings.[24] In Gemmell v Le Roi Homestyle Cookies Pty Ltd (in liq),[25] Ashley JA adopted a paraphrase of the propositions stated by Robson J, highlighting that the privilege against exposure to a penalty can only be successfully claimed where a person shows that to give an answer or answers would tend to subject him to a penalty in [the same] or separate proceedings.[26] The privileges can be abrogated by statute or waived.[27] Having regard to the weight of authority in Australian courts, there is no doubt that the principles relating to penalty privilege are well entrenched in the law of Victoria and are applicable to proceedings in the Tribunal. Effect of authority It can be taken from the authorities as established that: (1) penalty privilege will arise in proceedings of a disciplinary character against legal practitioners, health practitioners, and other persons, and in general in any proceedings where a monetary exaction, loss of office, forfeiture, or other penalty may result; (2) penalty privilege will protect against the requirement to make discovery, produce documents, or give information that may assist in establishing liability to a penalty, such as that sought by a notice to admit; (3) penalty privilege can be regarded as an extension of procedural fairness on the basis that it would be inconsistent with the respondent’s common law rights and privileges to be required to make discovery, produce documents or provide information which might assist in a proceeding against the respondent to recover a penalty; (4) penalty privilege can be abrogated by statute or waived by the respondent; (5) while it is accepted that legal practitioners have a duty to the court of open candour and frankness, this does not affect their common law and equitable right to penalty privilege; and (6) Towie’s case does not stand alone but is consistent with, and well supported by, a considerable body of authority which is binding on the Tribunal. Accordingly, I find in relation to the submissions made on behalf of the Commissioner that: (1) penalty privilege is a firmly entrenched privilege underpinned by decisions of the High Court of Australia and Supreme Court of Victoria; [28] (2) the passage cited from Towie’s case represents the law of Victoria,[29] and is not open to serious question or doubt; (3) subject to any abrogation by statute, or waiver by a respondent, it is appropriate for members of the Tribunal sitting in the Legal Practice and Review and Regulation Lists to apply the law as set out in Towie; (4) the Court of Appeal in Towie held that the provision by a respondent of written grounds and an outline of argument which identifies in broad terms what is in issue is consistent with penalty privilege; (5) the standard Tribunal directions are consistent with the law relating to penalty privilege as found in Towie; and (6) in the absence of a statutory provision to the contrary, or waiver by a respondent, the effect of penalty privilege is that a respondent cannot be ordered to make discovery, produce documents, provide information or respond to a notice to admit. Notwithstanding the existence of penalty privilege, respondents may (and often this is the case) be desirous of producing documents and information on a voluntary basis in order to defend the charges laid against them, or reduce their significance or gravity. This however is a voluntary decision. The duty of the Tribunal is to ensure that a respondent is informed of the options in order to make an informed and voluntary decision whether or not to waive the privilege. [7] [2004] HCA 42; (2004) 220 CLR 129 (‘Rich’).[8] The other two privileges are the privilege against exposure to forfeiture and the privilege against exposure to ecclesiastical censure.[9] [2004] HCA 42; (2004) 220 CLR 129, 141 [23] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ) referring to Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543, 553-554 [13] and to Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328, 336.[10] Rich [23]-[24]. The history of the privilege is fully discussed by McColl JA in Rich and Silberman v ASIC [2003] NSWCA 342, [195]-[257].[11] Rich [24]; Naismith v McGovern [1953] HCA 59; (1953) 90 CLR 336, 341-342. [12] Rich [26], [28], [34], [36]. [13] Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477; quoted with approval in Trade Practices Commission v Abbco Iceworks Pty Limited & Ors [1994] FCA 1279; (1994) 52 FCR 96, 129; in turn cited with approval in Rich v ASIC [2004] HCA 42; (2004) 220 CLR 129, 142. [14] [1983] HCA 9; (1983) 152 CLR 328, 336 (Mason ACJ, Wilson and Dawson JJ). [15] Ibid. [16] For other jurisdictions see Valantine v Technical and Further Education Commission [2007] NSWCA 208 [51]; Bridal Fashions Pty Ltd v Comptroller – General of Customs (1996) 140 ALR 681, 690. [17] [2009] VSCA 184; (2009) 25 VR 382. [18] Ibid [26] (Redlich JA and Hargrave AJA). [19] Ibid. [20] Ibid. [21] [2012] VSC 576; (2012) 93 ACSR 130 (‘Re APCH (No 2)’). [22] Ibid [115] (citations omitted). [23] Ibid [116]. [24] Ibid [86] referring to Refrigerated Express Lines (Australasia) Pty Ltd v Australian Meat & Livestock Corporation (1979) 42 FLR 204, 207-208 (Deane J). [25] (2014) 102 ACSR 367 (Ashley and Neave JJA; Almond AJA). [26] Ibid [85]. [27] Ibid [49]-[50], referring to Reid v Howard [1995] HCA 40; (1995) 184 CLR 1, 12. [28] Above [11]-[18]. [29] Above [7]. [30] Towie [2008] VSCA 157 [9].’

Sunday, March 22, 2015


Can’t afford a lawyer? How courtroom innovations help self-represented litigants Courts in New York, the U.K. and Windsor, Ont., are making life easier for the growing number of people who end up representing themselves. Share on Facebook Reddit this! Justice Fern A. Fisher, seen in her New York chambers, began a program to train volunteeer law students to help shepherd tenants with legal issues through housing court. An evaluation is beginning this summer that will help to quantify the success of these "navigators."VIEW 2 PHOTOSzoom TINA FINEBERG / THE ASSOCIATED PRESS Justice Fern A. Fisher, seen in her New York chambers, began a program to train volunteeer law students to help shepherd tenants with legal issues through housing court. An evaluation is beginning this summer that will help to quantify the success of these "navigators." By: Rachel Mendleson News reporter, Published on Sat Mar 21 2015 Navigating the courts without a lawyer is a gruelling and daunting experience that has become all too common among Ontario’s growing masses of self-represented litigants. The high cost of lawyers, combined with the erosion of legal aid and the proliferation of free legal resources on the Internet, has led to the justice system becoming what Julie Macfarlane, a law professor at the University of Windsor, describes as “a completely different universe.” The shift has been particularly seismic in the area of family law, where Macfarlane estimates that more than half of all litigants are now self-represented, numbers that are consistent across North America, the U.K. and Australia. The implications can be serious. Lori Murphy says high legal fees drove her to represent herself in a yearlong dispute against her ex-husband, after he filed a motion to have his unpaid child support erased. “It’s emotionally, financially and physically stressful,” said Murphy, whose ex was represented by a lawyer. “It consumed my whole life.” The gap between those who can afford a lawyer and those who qualify for legal aid is now so significant, says Macfarlane, that it’s “not something we’re going to be able to solve exclusively by putting more money in public legal services.” “We have to start figuring out how to deliver legal services differently,” she said. With this in mind, judges, law professors and volunteers are coming up with new ways to increase access to justice for self-represented litigants. Here is a look at how three jurisdictions are levelling the playing field. New York City When Justice Fern Fisher was head of New York City’s civil court in the early 2000s, she was struck by the fact that the vast majority of tenants in housing court, 98 per cent, did not have a lawyer. “Housing law in New York City is very complicated,” said Fisher, who is now deputy chief administrative judge for the city’s courts. “It’s also a crisis situation for the person who is about to lose their home.” So Fisher’s office started training volunteer law students to shepherd tenants through the system, making them aware of their possible defences and connecting them with social services. The initiative was formalized last February, on a pilot basis, when the state’s chief judge created the Court Navigator Program to assist unrepresented litigants New York City in the areas of housing and consumer debt, a first in the U.S., Fisher said. There are plans to expand the program this year to family court and uncontested divorces. Since launching, the program has included about seven paid and 60 unpaid navigators, which now include college students. There are rules about what navigators can do and can’t do — for instance, a navigator can help with scheduling proceedings and gathering relevant information, but can only address the court to answer factual questions, and is not allowed to perform any service that constitutes the practice of law. An evaluation beginning this summer will help to quantify the success of navigators, but Fisher said the anecdotal results are “very good.” “There are more defences being raised,” she said. “Our litigants clearly have a better feel about their experience in court.” The idea appears to be catching on: The Legal Information Society of Nova Scotia is currently reviewing the navigator program with an eye toward implementing it in that province, and Fisher says she has received inquiries from courts in other U.S. states. Windsor, Ont. Unlike some other jurisdictions, the Law Society of Upper Canada does not allow paralegals to practise family law in Ontario. According to Macfarlane, that’s a major hurdle in closing the access-to-justice gap. But there are other ways to help self-represented litigants besides providing legal advice. Last year, Macfarlane started a coaching program, matching law students with local self-represented litigants, a first in Canada, she said. As a volunteer coach, third-year law student William Good says he spent anywhere from two to three hours per week assisting a self-represented plaintiff in a civil case. He says his most notable contributions included listening and providing a rational perspective. “Most self-represented litigants just want somebody to hear them — being able to talk about their problem without somebody judging them,” Good said. In this case, he said the plaintiff largely “knew what her legal matters were.” “She needed somebody who could help her see through the mud of the whole issue,” he said. England and Wales For decades, courts in England and Wales have allowed trusted advisers without legal training — dubbed “McKenzie Friends” — to provide unrepresented litigants in family court with moral support, as well as assistance with note-taking and procedural matters. The role, according to a report in The Scotsman, dates back to a 1971 divorce case, where the unrepresented husband won the right to appeal on the basis that the judge had excluded his friend, who was trained as a lawyer in Australia but not in the U.K., to assist him at trial. More recently, McKenzie Friends range from volunteers to paid professionals, with fees that tend to be about 25 per cent of what lawyers charge, said Ray Barry, who has worked full-time as a McKenzie Friend in England’s Midlands region for nearly six years. Similar to the law student coaches in Windsor, Ont., and courtroom navigators in New York City, McKenzie Friends can provide pointers on legal procedure but can’t address the court. In response to concerns about the lack of regulation, Barry recently set up a trade association for McKenzie Friends, which sets out professional standards. “When someone goes into court as a McKenzie Friend, they can (now) present their credentials to the judge,” Barry said. “That will give the judge and the opposing lawyer a degree of confidence that the person will be competent in what they’re doing.”