JP Morgan v Hammond [2012] NSWSC 213

These possession proceedings have been on foot for over four years. Throughout the borrower’s husband obtained leave to represent her. Finally the matter was set down for trial and the husband again sought leave to represent his wife at the trial. This decision concerned that application.

The ordinary position is that litigants may either appear in person or be represented by a legal practitioner: Rule 7.1 Uniform Civil Procedure Rules 2005. The judge noted there are strong policy reasons that underlie the usual rule. These include the duties which a legal practitioner owes the Court and the objectivity which expected of persons who appear for others in court proceedings. The order sought is exceptional for which good grounds must be demonstrated.

The borrower’s husband pointed to his wife’s state of health, the fact that legal aid was denied, and the fact she is not otherwise able to be represented.

The lender argued against leave being granted primarily because the husband was the broker who originated the loan and there was an allegation that borrower’s loan application falsified the borrower’s income.

The court noted that even in the case of a legal practitioner, in the case of actual or perceived conflict of interest, the Court may exclude a legal practitioner from acting for a party.

Mr Hammond’s position is more difficult than that of a legal practitioner. He has no right to appear in the Court at all. He needs to satisfy the Court that leave should be granted. The involvement of the husband in the subject matter of the litigation is a fundamental problem.

Lay advocates are unqualified, unaccredited and uninsured and they place a client at considerable risk. An unqualified advocate may cause loss to a party, a lay advocate does not owe the same duties to his client as a lawyer. There is no duty of the type owed by a lawyer to assist the Court in ensuring the proper administration of justice, nor the lawyer’s duty to his or her opponent.

None of these protections for the system of justice exist with an unqualified lay advocate. This is especially so given that, the husband will be a witness and there are significant issues to which his evidence will relate. There is, at the least, a perceived conflict of interest between the interests of the husband and the borrower.  I am not persuaded that leave should be granted for the husband to appear as a lay advocate for the Defendant at the hearing and I decline the application.

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