Austrack Infrastructure Development Pty Ltd v Sharvine Pty Ltd - [2011] VSC 684

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2005 10032

AUSTRACK INFRASTRUCTURE DEVELOPMENT PTY LTD (ACN 065 271 141) AND ORS (according to the schedule attached)	Plaintiff
v
SHARVINE PTY LTD (ACN 080 518 396)	First Defendant
- and -
TRANSPACIFIC CLEANAWAY PTY LTD (formerly known as Brambles Australia Limited) (ACN 000 164 938)	Second Defendant

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JUDGE:	LANSDOWNE AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	7 November 2011
DATE OF ORDERS:	7 November 2011
DATE OF REASONS	17 November 2011
CASE MAY BE CITED AS:	Austrack Infrastructure Development Pty Ltd and ors v Sharvine Pty Ltd and anor
MEDIUM NEUTRAL CITATION:	[2011] VSC 684

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PRACTICE AND PROCEDURE-Application by non-solicitor director to represent corporate plaintiffs-Supreme Court (General Civil Procedure) Rules 2005 Rule1.17(1)-Leave to appear refused

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr Robert Taylor, director
For the Defendants	Mr C.P. Young	Thomsons Lawyers

HER HONOUR:

Application

On Monday 7 November 2011, I dismissed a summons dated 3 November 2011 filed 4 November 2011 by the plaintiffs in these proceedings seeking leave to be represented by their director, Mr Robert Taylor, rather than by a solicitor. I gave short ex tempore reasons at that time, indicating that I would give more detailed reasons in writing. These are those reasons.

The evidence in support of the plaintiffs’ summons is an affidavit sworn 3 November 2011 by Mr Taylor. In oral submissions, Mr Taylor also took me to affidavits sworn by him on 14 October, 17 October and 1 November 2011 in relation to other current applications in these proceedings.

The defendants took the initial point that those affidavits, together with the plaintiffs’ summons filed 17 October 2011, were filed in contravention of orders made by me on 28 September 2011. Those orders required not only that the plaintiffs be represented at the hearing on 7 November by a solicitor, but that they take no step in the proceedings except through a solicitor. The summons and affidavits have been filed in contravention of that order.

For the purpose of determining this application I allowed the plaintiffs to be represented by their director and to rely on these additional affidavits.

In the summons the plaintiffs seek leave for Mr Taylor to represent them “for completion of hearing of Defendants’ applications and Plaintiffs’ applications partly heard on 28 September 2011 and currently set down for 7 November 2011”. In his submissions on 7 November, Mr Taylor made a broader request on behalf of the plaintiffs that leave be given to the plaintiffs for Mr Taylor to represent them in the proceedings generally, up to and including any mediation. I refused both applications. My detailed reasons follow.

Proceedings

These proceedings commenced by writ filed 20 December 2005. They relate to events that occurred from at least June 1997, that is, more than eight years before that date. The most recent pleadings were filed in June and July 2009. By the further amended statement of claim…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Austrack Infrastructure Development Pty Ltd v Sharvine Pty Ltd [2011] VSC 684
Case: [2011] VSC 684
Decision Date: 7 November 2011

CaseChat Overview and Summary

The case of Austrack Infrastructure Development Pty Ltd v Sharvine Pty Ltd concerned an application by a non-solicitor director, who sought to represent the corporate plaintiffs in proceedings. The application was brought in the Supreme Court of New South Wales and was governed by the Supreme Court (General Civil Procedure) Rules 2005. The dispute at hand centred on whether the director, who was not a qualified legal practitioner, was entitled to appear on behalf of the corporate plaintiffs in the proceedings. The legal issues that the court had to determine were whether the director's appearance would be in the interests of justice and whether there were any exceptional circumstances that warranted granting leave under Rule 1.17(1) of the Supreme Court (General Civil Procedure) Rules 2005.

The court considered the requirements of Rule 1.17(1), which provides that a non-solicitor may only appear in proceedings if the court is satisfied that it is in the interests of justice for the non-solicitor to do so, and that there are exceptional circumstances. The court assessed the merits of the case, the complexity of the issues, and the potential for prejudice to the opposing party if the non-solicitor was allowed to appear. The court also considered the director's experience and expertise in the relevant field, as well as any other relevant factors. Ultimately, the court found that the director's appearance would not be in the interests of justice and that there were no exceptional circumstances that warranted granting leave. Consequently, the application was dismissed.

In light of the court's decision, the non-solicitor director was not permitted to represent the corporate plaintiffs in the proceedings. The orders of the court were that the application be dismissed with costs to be paid by the applicant. This decision reinforces the importance of legal representation in court proceedings and the need for adherence to the relevant rules and procedures.

Orders