Austrack Infrastructure Development Pty Ltd v Sharvine Pty Ltd
[2011] VSC 684
•7 November 2011
| 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 filed 2 June 2009 the plaintiffs, by that stage solely corporate plaintiffs, seek quantified sums and damages in excess of $28,500,000 against the defendants. The plaintiffs allege breach by the first defendant (“Sharvine”) and second defendant of a number of agreements with various plaintiffs relating to the development of a coal loader and storage facility at the port of Newcastle, in New South Wales. I set out a summary of the pleadings below, which is intended to give a brief overview only, and should not be read as ignoring the complexity of the various causes of action and defences raised.
The agreement pleaded that was first in time is a confidentiality agreement entered into in June 1997 between the first to sixth plaintiffs and the second defendant by which the plaintiffs assert that they agreed to provide the second defendant with confidential information in relation to the development proposal. Also pleaded are agreements for the sale of certain assets by certain plaintiffs to Sharvine, an agreement by which the sixth plaintiff licensed Sharvine to use certain technology, charges over the assets of certain plaintiffs in favour of Sharvine and a guarantee entered into by the second defendant in favour of certain plaintiffs guaranteeing the performance of obligations by Sharvine pursuant to the sales, licence and confidentiality agreements and charges. All these documents were dated 9 December 1997. The plaintiffs assert various breaches of these various agreements. The defendants generally deny the asserted breaches, or say if there was a breach it was waived by the relevant plaintiffs; say that the sales agreement and consequently the licence agreement were lawfully terminated in January 2000; claim a set off of $369,000 by reason of which Sharvine is not obliged to discharge the charges; and say that the majority of the claims are statute barred. There are also defences as to causation and absence of loss in respect of some of the asserted claims.
As is apparent from this overview, the amount claimed by the plaintiffs is very large, there is a significant issue which could be the subject of preliminary hearing (the allegation that most of the claims are statute barred by reason of failure to give sufficient notice of them prior to the expiration of the limitation period) that may then determine the future conduct of the proceedings, and, in the event the matter goes to trial, the factual issues will require traversing events from at least June 1997 to January 2000, now between 11 and 14 years ago.
The plaintiffs were represented by solicitors until 1 April 2011 at which time their solicitors filed a notice of ceasing to act. On 18 March 2011, the defendants filed a summons seeking that the proceedings be dismissed or, alternatively, stayed. By affidavit in support of that summons sworn 30 March 2011 by Ms Alison Urquhart, Ms Urquhart deposed that all of the plaintiffs had been deregistered by ASIC by 18 March 2011 due to withdrawal of consent of the registered business address.
The defendants had earlier, on 22 September 2009, filed a summons seeking that the plaintiffs provide security for their costs of defending the proceedings. That summons has still not been heard, substantially due to requests by the plaintiffs to adjourn the proceedings due to ill‑health of the plaintiff companies’ sole director, Mr Taylor. Hearings and directions hearings listed from 27 November 2009 to 3 November 2010 were adjourned by consent by reason of these asserted health issues. On 10 November 2010, the Court made further timetabling orders in relation to the defendants’ application for security for costs by consent and noted that the defendants’ consent to those orders was afforded on the basis that the defendants “will not consent to and will oppose any future requests and/or application for a further extension of time”. The summons was then listed for hearing in March 2011. That date was subsequently adjourned to 6 April 2011.
On 6 April 2011, there was no appearance by or on behalf of the plaintiffs. I made orders on the application of the defendants staying the proceedings and making provision for the plaintiffs to seek leave to reinstate the proceedings on certain terms. Order 2 provided that:
2. The plaintiffs may apply for leave to reinstate the proceedings, such application to be made no later than 29 July 2011 and such application to be supported by an affidavit on behalf of the plaintiffs deposing as to:
(a)the reinstatement of the registration of all or any of the plaintiffs;
(b)the evidence relied on by the plaintiffs in response to the orders for security for costs sought by the defendants by summons dated 22 September 2009;
(c)the measures put in place by the plaintiffs to ensure the proceeding is prosecuted without further delay; and
(d)payment of the order of Registrar Conidi of 10 February 2011.
The orders of 6 April 2011 contained reference in “Other Matters” to the requirement that a corporation cannot take a step in proceedings except by solicitor by these words: “ In the event that the registration of one or more of the plaintiffs is reinstated, as a corporation that or those plaintiffs may not take any step in these proceedings except by a solicitor (pursuant to Rule 1.17) or by leave of the Court”.
The plaintiffs did not file a summons seeking leave to reinstate the proceeding or retain solicitors on the record. Instead, Mr Taylor filed by email to my associate on 29 July 2011 an affidavit said in the jurat to be sworn by him in Sydney on 28 July 2011 in which he deposed to being in New York for medical treatment, having obtained the reinstatement of the sixth plaintiff on 22 June 2011 and stated “I make application that this case be reinstated”. In apparent reference to the question of payment of the order of Registrar Conidi (a taxed bill of costs in the sum of $40,016.16) Mr Taylor exhibited correspondence from his then solicitors Harris Cost Lawyers dated 7 May 2009 to the solicitors for the defendants enclosing a bill of costs for compliance by the plaintiffs or Mr Taylor with a subpoena issued by Sharvine in related proceedings (in which the plaintiffs are not parties). Mr Taylor asserts in the affidavit that this is “taxed bill of costs” in the sum of $150,692.93. The exhibit does not appear to be a taxed bill. By later affidavits, Mr Taylor deposes to the taxation of that bill having been listed for 8 November 2011.[1]
[1]Affidavit sworn 17 October 2011, paragraph 11.
The other exhibit to the affidavit of 28 July 2011 is what appears to be a US patent assigned by Mr Taylor to the sixth plaintiff entitled “Stockyard for Bulk Materials” and dated 21 January 2003. Paragraph 5 of the affidavit may seek to assert that this is “evidence to show we are able to prosecute this case”. By a later affidavit sent to my associate by email on 10 August 2011 in unsworn form Mr Taylor asserts that “the purpose of exhibiting my USA Patent a priori demonstrates adequate assets to prosecute this matter, since … Brambles and Sharvine entered into agreements, including a license agreement on 7 December 1997 to pay me more than $10,000,000 in license fees for use of this design.” That later unsworn affidavit also exhibits what is said to be “(f)urther evidence of assets in the form of enforceable mineral claims in various parts of South America containing gold, tantalum and other valuable metals.”
The defendants’ applications next came before me on 28 September 2011. On that date, Mr Taylor attended and sought leave on behalf of the plaintiffs to represent them. I granted leave for that day only and indicated to the plaintiffs through Mr Taylor that they were required to be represented by solicitors in respect of any further step taken in the proceedings and on the next occasion. Counsel for the defendants made submissions in respect of the summons for dismissal. The orders made on 28 September were as follows:
1.The Defendants’ summonses filed 18 March 2011 and 22 September 2009 are adjourned part heard to Associate Judges’ Court 4, Ground Floor, 436 Lonsdale Street, Melbourne on 7 November 2011 not before 11.00 am.
2.The Plaintiffs are required to be legally represented on that day and not to take any step in these proceedings except by a solicitor without the consent in writing of the Defendants or leave.
3.In the event the Plaintiffs seek to prosecute the application for reinstatement of the proceeding sought to be made by affidavit of Mr Taylor sworn 28 July 2011, the Plaintiffs are required to:
(a)file and serve a summons in that regard by 24 October 2011;
(b)file and serve any further affidavit in compliance with orders 2(b), (c) and (d) of 6 April 2011 by 24 October 2011.
4.The Defendants may file and serve any affidavit in response by 31 October 2011.
5.The Defendants’ costs of today are reserved.
6.There is liberty to apply.
In purported compliance with order 3, Mr Taylor filed a summons on behalf of the plaintiffs on 17 October 2011, seeking that the proceedings be reinstated and other orders. The other summons and various affidavits as set out earlier followed, all filed by Mr Taylor rather than by a solicitor on the record.
Legal principles
Rule 1.17(1) of Chapter I of the Supreme Court (General Civil Procedure Rules) 2005 reads as follows:
Except where otherwise provided by or under any Act or these Rules, a corporation, whether or not a party, shall not take any step in a proceeding save by a solicitor.
The rationale for this Rule was set out by his Honour Justice J. Forrest in Worldwide Enterprises Pty Ltd v Dov Silberman andSam Chizik,[2] (“Worldwide Enterprises”) in particular at paragraphs 16-19. In paragraph 20 His Honour set out the principles that the Court must apply when considering an application for leave to depart from Rule 1.17(1). Those principles are as follows:
[2][2009] VSC 165.
In light of the foregoing discussion, the following principles, I think, can be distilled:
(a)The starting point, as rule 1.17 shows, is that usually a company will not be permitted to appear without a legal representative. However, the rule is not absolute.
(b)Where such circumstances warrant it, a company may be permitted to “take a step” without being represented by a legally qualified person.
(c)The following matters are relevant to determining whether such circumstances have been shown.
(i)The manner in which the case has progressed at the time that the application is made;
(ii)The manner in which the case can proceed in the future without a solicitor;
(iii)The complexity of the issues involved in the case;
(iv)Whether the lack of disciplinary measures in relation to the person seeking to represent the company will affect the administration of justice;
(v)Whether the case can be conducted in an orderly and responsible fashion without a solicitor;
(vi)Whether there are financial considerations which would inhibit a company from obtaining legal representation;
(vii)The stage which the case has reached;
(viii)Whether the defendant is likely to expend more funds in defending the claim absent a solicitor acting for the company;
(ix)What effect, if any, permitting a company to appear without a solicitor will have on Court resources and, particularly, the effect upon other litigants in the Court List.
As an initial matter, Mr Taylor asserts that he is not only the governing mind of all the plaintiffs, but that they were only brought into existence as a requirement of the defendants, and so their corporate form should not now be a barrier to prosecution by him of their claims. Assuming, without deciding on the evidence, that it was a requirement of the defendants that Mr Taylor incorporate vehicles for his dealings with them, I accept the submission of the defendants that nothing sinister should be inferred from this request. Indeed, I accept that incorporation of the proponents of such a large venture would be the usual course. Incorporation confers clear benefits for enterprise, most particularly limited liability. It is not unreasonable that it also confers obligations, in this instance the necessity for legal representation to prosecute any claim in this Court. It is sufficient justification for this rule that limited liability for the consequences of unsuccessful litigation obliges a company to retain lawyers and so subject the company’s claims to legal scrutiny and certification as to a proper basis before those claims can be litigated.
The onus of showing circumstances that warrant leave being granted to a company to take a step without being represented by a legally qualified person lies on the company. I consider the principles as applied to the facts of this case as follows.
(i)The manner in which the case has progressed at the time that the application was made
These proceedings were commenced by the plaintiffs on the very eve of the expiration of the limitation period, if that limitation period runs from 20 December 1999. The generally endorsed writ filed on 20 December 2005 alleges breach by wrongful termination of the sales agreement by notice dated 20 December 1999 and 17 January 2000. The proceedings relate to events between 1997 and 2000. The late start to the proceedings imposes on the plaintiffs a special duty to prosecute their claims in a timely and efficient manner, being a greater duty than that cast on a plaintiff who sues early in the limitation period.[3]
[3]Hargrave J. in Francis v Bunnett [2011] VSC 443, at [6] citing Bishopsgate Insurance Ltd (In liq) v Deloitte Haskins & Sells [1999] 3 VR 863 at [32].
The case has not, however, proceeded in a timely and efficient manner. The further amended statement of claim was not filed until June 2009, and this was the last significant step taken by the plaintiffs- now more than 2 years ago. The failure to prosecute the action since that time cannot be said to be attributable to lack of legal representation. The plaintiffs were legally represented until 1 April of this year. Mr Taylor deposes in an affidavit sworn 31 March 2011 (filed for the 6 April 2011 adjourned date in response to the defendants’ application to dismiss the proceedings) to a number of health problems he has suffered from August 2009, the latest of which is prostate cancer. Even if it be the case that it is his health problems that have caused the delay since June 2009 (and I express no view on that as the dismissal application is part heard), what the delay to date does impose on the plaintiffs is an obligation to proceed now with expedition. For the reasons that will become apparent, I consider that this is more likely to be the case if the plaintiff companies are legally represented.
(ii)The manner in which the case can proceed in the future without a solicitor
Mr Taylor submits that the current applications and the conduct of the proceedings generally up to and including mediation can be adequately handled by him and, in respect of discovery, are best handled by him. He says that discovery conducted on his behalf in other proceedings in which he is personally a defendant resulted in inordinate delay and cost, and that the solicitors were not able to identify with the same ease that he can which documents are relevant.
It became apparent in the course of submissions, however, that Mr Taylor is not familiar with legal concepts that are fundamental to proper discovery. I say this without criticism of him, as such familiarity would not be expected of a person without legal qualifications. He appeared unfamiliar with the requirements of the Harman[4] undertaking implied in respect of documents produced for discovery; it may be that he does not appreciate the restrictions imposed by legal professional privilege[5]; and I have grave doubts as to whether he sufficiently appreciates the distinction between what is relevant and what is not relevant, and that relevance may depend on the issue under consideration.
[4]Harman v Home Office [1983] 1 AC 280 at 304; Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 32.
[5]He sought to rely on legal advice given to the second defendant, although in fairness on enquiry he said he had obtained that document in papers returned to him by the second defendant.
By way of example, the affidavits on which he relies on behalf of the plaintiffs for this application contain considerable material that is irrelevant to this application, or, arguably, the other current applications. For example, his affidavit sworn 17 October 2011 contains a long paragraph 10 in which he sets out what he describes as “defendants’ now 15 years of ongoing unconscionable and oppressive conduct towards me and plaintiffs”. The strength of the plaintiffs’ claim and any unconscionable conduct of the defendants may, on a generous view, perhaps be relevant to the dismissal, reinstatement or security for costs applications (I express no concluded view as those applications are not yet heard in full), but it is only of peripheral relevance to this application, that he be permitted to represent the corporate plaintiffs.
Appreciation of relevance, and that it is dependent on the issue under consideration, cannot be expected without an understanding of the legal principles applicable to that issue, and so again this is not a personal criticism of Mr Taylor. In addition to inclusion of irrelevant material, the material contained in paragraph 10 of the affidavit sworn 17 October and elsewhere in his affidavits is also more in the nature of assertion or argument, rather than evidence of fact only (demonstrating a lack of understanding of the difference between evidence and argument) and is expressed in inappropriately intemperate and highly coloured language. All these matters demonstrate that the proceedings will be prosecuted with greater efficiency if the plaintiffs are legally represented.
For these reasons I would not grant leave to the plaintiffs to be represented generally by Mr Taylor, or even to mediation. The current issues before the Court, however, are also serious and require an understanding of legal principles. The defendants’ current application seeks dismissal of the proceedings; the plaintiffs’ application (if the defendants’ application is unsuccessful) seeks reinstatement of the proceedings which are currently stayed; and, if the proceedings are reinstated, the defendants will move on their application for security for costs. If that application is successful, it will also stay the proceedings until the security is paid. Accordingly, all the current applications have the potential to either stay or dismiss the proceedings. If the proceedings are stayed or the existing stay continued, then, even if the current application for dismissal is unsuccessful, the additional delay will add fuel to any future application for dismissal.
In addition to being serious, the current applications also require legal knowledge. In his affidavit material filed for this application, Mr Taylor demonstrates that he does not appreciate what is legally required for a security for costs application. He has criticised affidavits filed in support of the application for security for costs on the basis that the searches there undertaken were unnecessary, artificial and not carried out in good faith.[6] Again, his comments are expressed in an intemperate manner and make quite inappropriate personal criticism of the solicitors for the defendants.[7] What this demonstrates to my mind, is that he does not understand the legal principle that applicants for security for costs, here the defendants, are required to undertake enquiries of this sort and bear the burden of establishing that security should be given.
[6]His affidavit sworn 17 October 2011, paragraph 14.
[7]Ibid, in particular paragraph 14(e).
Mr Taylor stressed in his submissions that he was the best person to represent the plaintiffs because he knew the most about the facts. I endeavoured to explain to him in the course of those submissions that there is a significant distinction between factual knowledge of the issues and the ability to put that factual knowledge in the proper legal context and so properly represent a party. It is the latter that would be afforded by legal representation. He would remain the principal witness for the plaintiffs, and the principal, or indeed only, source of instructions as to the factual material in the course of the proceedings. I do not believe from his continued submissions that he appreciates this distinction or understands the benefit that impartial and informed legal advice would give to the plaintiffs’ conduct of the proceedings.
(iii)The complexity of the issues involved in the case
As outlined earlier, the proceedings are complex. There are very large sums sought, they will require evidence of events many years ago, there are multiple causes of action and multiple defences. The defendants have incurred very large sums already in respect of their defence of the proceedings. The current applications are also serious and require legal knowledge. I consider that this factor as well as factors (i) and (ii) militate against the grant of leave as sought.
(iv) and (v)Whether the lack of disciplinary measures in relation to the person seek to represent the company will affect the administration of justice and whether the case can be conducted in an orderly and responsible fashion without a solicitor
As set out earlier, Mr Taylor has made very serious allegations in his affidavit material against both the defendants and their solicitors. In oral submissions he alleged that the defendants engaged in a cynical exercise to take advantage of him by obtaining his knowledge and contacts and then abandoning engagement with him. In his affidavit sworn 17 October 2011 he accuses the defendants of:
gross breach of contracts with the most ill of intent and flagrant abuse of law, the consequences of which damaged not only plaintiffs but also the Australian economy, industry and public-demonstrated and measured by the loss of industrial growth, exports and millions of $ of ship demurrage paid at Newcastle due to the 10 year delay caused by defendants in the construction of my project.[8]
[8]At paragraph 31 (vii).
In respect of the solicitors, he has also made serious allegations, for example that the searches undertaken by Ms Kiely for her affidavit sworn 18 September 2009 in support of the defendants’ application for security for costs were “not carried out in a good faith or bona fide manner”[9]. This is not the occasion to determine whether or not allegations of unconscionable conduct by the defendants or inappropriate conduct by their solicitors are correct. However, they could not be made by a person admitted to practice without a proper foundation for fear of disciplinary sanction by the Court. No similarly effective sanction exists in respect of allegations of this type made by an individual.
[9]Mr Taylor’s affidavit sworn 17 October 2011, paragraph 14(e).
What these allegations also suggest, to my mind, is that Mr Taylor is unable to distinguish between his forceful conviction that the defendants have engaged in wrongdoing towards him and the appropriate way of prosecuting such allegations. The plaintiff companies would benefit from dispassionate legal advice in relation to these matters. The prosecution of such serious allegations, if they are to be prosecuted once legal advice has been obtained, would also be assisted by legal representation. This will save the defendants and the Court from unnecessary exposure to serious allegations if they cannot be supported.
(vi)Whether there are financial considerations which would inhibit a company from obtaining legal representation
Mr Taylor does not say the plaintiffs will not be able to afford legal representation. The plaintiffs were legally represented until 1 April 2011, and Mr Taylor deposes to attempts he has made to obtain further funding for legal representation. He concedes that legal representation is required for the preparation for trial and trial itself. He deposes to efforts he has made in the time available to him to find a new firm of solicitors with the capacity and willingness to handle the proceedings. He recently engaged solicitors for the plaintiffs presumably because he considered it prudent to do so, to resist a statutory demand in respect of the unpaid taxed costs owed to the defendants[10]. Giving his approach the characterisation most favourable to him, it appears that what he seeks to do is minimise the plaintiffs’ legal costs by retaining solicitors only when he considers it necessary, and after satisfaction of their and his requirements as to representation. Rule 1.17 does not in terms allow for such an approach.
[10]Email of 6 October 2011 from Mr Taylor to my associate seeking adjournment of 7 November 2011.
I am not satisfied that there are financial considerations which would prevent the plaintiffs being legally represented. The plaintiffs have been on written notice since receipt of the orders of 6 April 2011 that they must be legally represented to prosecute their claims. Mr Taylor has been on personal notice of that requirement since his appearance in court on 28 September 2011. If the time that has elapsed has been insufficient to obtain legal representation, my orders made 7 November give the plaintiffs one further and final opportunity to obtain legal representation in the light of the formal refusal of the grant of leave on that date, the short ex tempore reasons given that day and these more detailed reasons.
(vii)The stage which the case has reached
In Worldwise Enterprises Forrest J. considered that leave may more likely be granted where a case is close to trial or “a non-legally qualified person has been permitted to act on behalf of a company for a considerable period of time”[11]. By analogy it could be said that these proceedings, while not close to trial, are close to a critical, and potentially fatal stage. By the orders made 7 November 2011, unless Mr Taylor can demonstrate good medical cause to the contrary, the applications will be further heard on 16 December, and the plaintiffs must file any further affidavits by solicitor by 9 December 2011. I am conscious that that will require swift action from 7 November to retain and instruct solicitors. However, as set out above, the plaintiffs have been on notice at least since the order of 6 April 2011 that they were required to be legally represented. Mr Taylor personally has been on notice of that since 28 September 2011. I have now given the plaintiff companies one further month to obtain legal representation. Mr Taylor has not been permitted by me to represent the company other than on 28 September 2011. In my view this time line is more than adequate, and this factor does not favour the grant of leave.
(viii)Whether the defendant is likely to expend more funds in defending the claim absent a solicitor acting for the company
[11]At [24]
I accept the submission of the defendants that this is indeed the case. The affidavits filed by Mr Taylor in support of this application and the other applications currently before the Court demonstrate, as set out earlier, an inability to distinguish between what is relevant in legal terms and what is irrelevant. They are lengthy, repetitive, contain argument as well as assertions of fact, assertion of fact are in many instances insufficiently detailed, and much of the material is in inadmissible form. These are not merely matters of form. The defendants and the Court have been required to read voluminous amounts of material, which I accept have been put forward by Mr Taylor in good faith and in an earnest desire to comply with the Court orders, but the defendants have thereby been occasioned more cost than would have been the case had the plaintiff companies been represented by a solicitor.
(ix)What effect, if any, permitting a company to appear without a solicitor will have on court resources and, particularly, the effect upon other litigants in the court list
The foreshadowed further hearing of these applications on 16 December 2011 will be the fourth hearing of the defendants’ applications on and from 6 April 2011. Experience suggests that had the plaintiff companies been legally represented, as required by the orders of 6 April, it would not have been necessary to devote this amount of court resources to the applications. In particular, all of the applications were listed for hearing today. In the event, only the application for leave for the plaintiff companies to be represented by Mr Taylor, has been heard.
Determination
It was for these reasons that I refused leave to the plaintiffs to be represented by Mr Taylor both generally and in the current applications. In my view, none of considerations outlined above favour the grant of leave to the corporate plaintiffs to be represented by Mr Taylor, and all, except (vi) and (vii) which are adequately accommodated by adjournment from 7 November to 16 December 2011, favour refusal. In my orders made 7 November, I was conscious that refusal of this leave would potentially leave the plaintiffs exposed to an unopposed application for dismissal of the proceedings. It is for that reason, in addition to affording one final opportunity to retain solicitors in the light of formal refusal of leave, that I further adjourned that application and the other two outstanding applications.
Status of application and affidavits filed by the plaintiffs through Mr Taylor and not by a solicitor
The orders made 7 November also require consideration as to the extent, if at all, the summons and the affidavits filed by Mr Taylor on behalf of the plaintiff companies since 28 September 2011 can be taken into account in determining the applications.
As set out earlier, and in discussion on 28 September 2011, it is clearly desirable that there be a contradictor to the defendants’ application for dismissal if possible. It would, however, be inconsistent with the refusal of leave to the plaintiffs to be represented by Mr Taylor to allow affidavits filed by him to be relied upon. It would also potentially expose the Court and the defendants to the worst of all worlds-voluminous and likely inadmissible material, without the benefit of oral argument to determine any objections or put the material in context.
For those reasons, I have concluded that it is a necessary consequence of the refusal of leave that no documents filed other than by solicitor after 28 September 2011 may be relied upon by the plaintiffs to oppose the defendants’ applications. In discussion on 7 November 2011 I indicated I would hear the parties further on this issue. On reflection, I consider that to do so would be to act inconsistently with my orders and invite reconsideration of them. For those reasons I will not permit the parties to further address me in relation to reliance on documents filed by Mr Taylor for the plaintiffs after 28 September 2011. I will, however, reserve the position in relation to affidavits filed by Mr Taylor earlier than that date for argument on the next occasion. I consider that 28 September 2011 is the appropriate date on which to draw a distinction because Mr Taylor was personally present on that day when he was informed the plaintiffs must be legally represented.
In the event the plaintiffs do retain solicitors, then the plaintiffs must identify by appropriate affidavit filed and served by solicitor by 9 December 2011 what portions, if any, of previous affidavits are now relied upon. My intention is that legal scrutiny should eliminate reliance on inadmissible material.
I make it explicit that this approach also applies to the summons filed by Mr Taylor on behalf of the plaintiffs for reinstatement of the proceedings. If reinstatement is to be sought, the summons may be relied upon but must be adopted and amended as required by a solicitor on the record. Affidavits filed by Mr Taylor personally similarly may not be relied upon for this application unless the subject of an affidavit filed by solicitor. I take this approach for two reasons. First, Mr Taylor has sought to rely on the same affidavits sworn by him for various applications, whether the plaintiffs’ application or the defendants’, and accordingly the same approach must be taken to all of his affidavits. Secondly, reinstatement of the proceedings is a major step where the plaintiffs must demonstrate their commitment to compliance with Court orders and Rules by retaining legal representation.
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