Damjanovic v Maley [2002] NSWCA 230

Damjanovic v Maley [2002] NSWCA 230

Dent DCJ's refusal to grant Ms Vukic leave to appear was a discretionary decision under s 43(1)(b) of the District Court Act 1973 and no House v The King error was shown. The complexity of the litigation, the availability of legal representation, the appellant's need for an interpreter rather than a lay advocate,...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
19 July 2002
Procedural Posture
Appeal From District Court Decision Refusing Leave for a Lay Advocate to Appear / Court of Appeal Judgment Pursuant to Leave to Appeal
Outcome
Appeal dismissed; appellant ordered to pay the respondent's costs; no order as to the costs of the New South Wales Attorney-General.
Legal Topics
['leave for Lay Advocate to Appear' 'mc Kenzie Friend' 'rights of Audience of Unqualified Persons' 'court Discretion to Regulate Proceedings' 'validity of S 43(1)(b) of the District Court Act 1973' 'procedural Equality']
['practice and Procedure' 'jurisdiction' 'constitutional Law'] ['leave for Lay Advocate to Appear' 'mc Kenzie Friend' 'rights of Audience of Unqualified Persons' 'court Discretion to Regulate Proceedings' 'validity of S 43(1)(b) of the District Court Act 1973' 'procedural Equality']

Source-derived case record

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Procedural Posture

Appeal From District Court Decision Refusing Leave for a Lay Advocate to Appear / Court of Appeal Judgment Pursuant to Leave to Appeal

Legal Issues

  1. 1 ['Whether Dent DCJ erred in refusing leave under s 43(1)(b) of the District Court Act 1973 for Ms Vukic, an unqualified lay advocate, to appear for the appellant.' "Whether the appellant's poor command of English and distrust of lawyers required leave to be granted to the lay advocate." 'Whether s 43(1)(b) of the District Court Act 1973 is invalid because it is not a law for the peace, welfare and good government of New South Wales.' 'Whether s 43(1)(b) transgresses an implied constitutional right to procedural equality.']

Ratio Decidendi

Dent DCJ's refusal to grant Ms Vukic leave to appear was a discretionary decision under s 43(1)(b) of the District Court Act 1973 and no House v The King error was shown. The complexity of the litigation, the availability of legal representation, the appellant's need for an interpreter rather than a lay advocate, and the absence of the protections associated with qualified legal practitioners supported refusal of leave. The constitutional challenges failed because peace, welfare and good government does not limit State legislative power in the manner alleged and there is no relevant implied constitutional right to procedural equality. The appeal was therefore dismissed.

Court Disposition

Appeal dismissed; appellant ordered to pay the respondent's costs; no order as to the costs of the New South Wales Attorney-General.

Orders

  • ['Appeal dismissed.' 'Appellant pay the costs of the respondent.' 'No order is made as to the costs of the New South Wales Attorney-General.']