Leading cases of the common law—McKenzie v McKenzie [1971] P 33, presented by Ian Hanger AM QC

Thu 22 Jun 2017 5:15pm6:30pm

Venue

The Banco Court, QEII Courts of Law, Level 3, 415 George St, Brisbane

In McKenzie v McKenzie [1971] P 33, the English Court of Appeal unanimously affirmed the important principle that any person conducting proceedings in court is entitled to quiet assistance from a person of their choice.

'Any person, whether he be a professional man or not, may attend [in court] as a friend of either party, may take notes, may quietly make suggestions, and give advice; but no-one can demand to take part in proceedings as an advocate …’

This principle of elementary fairness had been stated by Lord Tenterden CJ as early as 1831, but seemed to have fallen from view by 1969 when a two week divorce trial between Mr and Mrs McKenzie came before Justice Lloyd-Jones in London.

The issues were complex and they involved bitter allegations of adultery and cruelty. The petitioner, Mr McKenzie, had been proceeding with the benefit of legal aid but this had been terminated before the trial commenced and thus he was unrepresented.

In these circumstances, the firm which had previously represented Mr McKenzie allowed one of its law clerks to assist. As the Court of Appeal explained:

‘The husband no longer had legal aid; but at the commencement of the hearing there was sitting beside him a young man, Ian Hanger, who was an Australian barrister putting in some time in this country in the offices of Messrs Jeffrey Gordon & Co. Mr Hanger was there voluntarily in order to assist Mr McKenzie…’

But Mr McKenzie’s friend was not permitted to assist. The trial judge took exception to his presence at the Bar table and Mr McKenzie was obliged to do the best he could on his own—with a most unfavourable outcome.

The Court of Appeal had no difficulty in accepting that this was a fundamental error in the trial process and it is from the Court’s revival of Lord Tenterden’s principle that the modern practice has arisen of allowing parties the assistance of a ‘McKenzie friend’.

In 1969 and 1970 Mr Hanger worked in Lavender Hill, London (the street giving its name to the film The Lavender Hill Mob). He will describe his experiences in that environment and his role in McKenzie v McKenzie, its subsequent influence on the development of the law, and its continuous intersection with his life.

Ian Hanger AM QC

Ian Hanger AM QC was called to the Bar in 1968 and became a Queens Counsel in 1984. After a career in litigation he began mediating in 1990.

Hanger is Adjunct Professor in the Australian Centre for Peace and Conflict Studies University of Queensland, a member of the mediation panel of the Court of Arbitration for Sport, and a member of the mediation panel for the International Centre for the Settlement of Investment Disputes. He has presented papers on mediation in the USA, England, Scotland, Ireland, France, Italy, Croatia, Australia, Hong Kong and Papua New Guinea.

Hanger has been consulted by judges on alternative dispute resolution (ADR) practice from China, Hong Kong, Japan and Papua New Guinea. He is a member of the National ADR Advisory Committee to the Federal Attorney-General in Australia, member of the Law Council of Australia’s ADR Subcommittee and Chair of the Queensland Bar Association’s ADR Committee.

In 2007 Hanger was made a Member of the Order of Australia for his services to ADR and to music. In 2008 and 2009 he was listed by the Australian Financial Review as one of the top ADR practitioners in Australia. Hanger was made a Distinguished fellow of the International Academy of Mediators and awarded fellowship as Eminent Professional by the Royal Institute of Chartered Surveyors in London (2009).