Checked-Out Pty Ltd v Eagle Eye Inspections Pty Ltd of NSW
[1999] FCA 536
•3 MAY 1999
FEDERAL COURT OF AUSTRALIA
Checked‑Out Pty Ltd v Eagle Eye Inspections Pty Ltd of NSW
[1999] FCA 536
PRACTICE AND PROCEDURE – applicant a corporation – proceeding commenced otherwise than by solicitor – whether Court has power retrospectively to grant leave to commence proceeding otherwise than by solicitor
Federal Court Rules O 4 r 14(2)
Supreme Court Rules 1937 (ACT) O 2A r 14(2)
Individual Homes Pty Limited v Commonwealth Bank of Australia (1994) 50 FCR 372 referred to
ACT General Cleaning Company Pty Ltd v Naoum (1996) 67 FCR 361 applied
Penale Pty Ltd v McLernon Group Ltd (Federal Court of Australia, French J, 17 November 1997, unreported) citedCHECKED‑OUT PTY LTD v EAGLE EYE INSPECTIONS PTY LTD OF NSW
AND JOSEPH WILLIAMS AND WAYNE COOK AND TIMOTHY BOLLINS
AND PETER ADAMS SOLICITORS AND G H HEALEY
AND McCANN SOLICITORS AND MARK KELADA SOLICITORS
AND QUINNS SOLICITORS AND NOYCE LAWYERS
AND GRECH PARTNERS SOLICITORS
AND GUY AND ASSOCIATES SOLICITORSN 169 OF 1999
LEHANE J
3 MAY 1999
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 169 OF 1999
BETWEEN:
CHECKED‑OUT PTY LTD
(ACN 071 965 798)
ApplicantAND:
EAGLE EYE INSPECTIONS PTY LTD OF NSW
(ACN 084 722 234)First Respondent
JOSEPH WILLIAMS
Second Respondent
WAYNE COOK
Third Respondent
TIMOTHY BOLLINS
Fourth Respondent
PETER ADAMS SOLICITORS
Fifth Respondent
G H HEALEY AND McCANN SOLICITORS
Sixth Respondent
MARK KELADA SOLICITORS
Seventh Respondent
QUINNS SOLICITORS
Eighth Respondent
NOYCE LAWYERS
Ninth Respondent
GRECH PARTNERS SOLICITORS
Tenth Respondent
GUY AND ASSOCIATES SOLICITORS
Eleventh RespondentJUDGE:
LEHANE J
DATE OF ORDER:
3 MAY 1999
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Leave be granted to the applicant nunc pro tunc to commence the proceeding, and to file and serve an amended statement of claim as contemplated in Order 3, otherwise than by a solicitor.
2.The statement of claim be struck out.
3.The applicant have liberty to file and serve an amended statement of claim not later than 28 June 1999.
4.The applicant pay the costs of the first, second, third and fourth respondents and of the fifth, seventh, eighth, ninth and tenth respondents of their respective applications to strike out paragraphs of the statement of claim.
5.The applications of the first, second, third and fourth respondents and of the fifth, seventh, eight, ninth and tenth respondents for security for costs be stood over to 9:30 am on Monday, 5 July 1999.
6.The matter be listed for further directions at 9:30 am on Monday, 5 July 1999.
7.Each party have liberty to apply on five days’ notice.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 169 OF 1999
BETWEEN:
CHECKED‑OUT PTY LTD
(ACN 071 965 798)
ApplicantAND:
EAGLE EYE INSPECTIONS PTY LTD OF NSW
(ACN 084 722 234)First Respondent
JOSEPH WILLIAMS
Second Respondent
WAYNE COOK
Third Respondent
TIMOTHY BOLLINS
Fourth Respondent
PETER ADAMS SOLICITORS
Fifth Respondent
G H HEALEY AND McCANN SOLICITORS
Sixth Respondent
MARK KELADA SOLICITORS
Seventh Respondent
QUINNS SOLICITORS
Eighth Respondent
NOYCE LAWYERS
Ninth Respondent
GRECH PARTNERS SOLICITORS
Tenth Respondent
GUY AND ASSOCIATES SOLICITORS
Eleventh RespondentJUDGE:
LEHANE J
DATE:
3 MAY 1999
PLACE:
SYDNEY
REASONS FOR JUDGMENT
On Wednesday, 28 April 1999 I heard evidence and argument on motions of the first, second, third and fourth respondents and of the fifth, seventh, eighth, ninth and tenth respondents. Each motion sought orders that the applicant provide security for costs; each also sought that the statement of claim, to the extent that it propounded causes of action against respondents in the relevant group, be struck out. The first four respondents also sought an order that the proceeding be dismissed as incompetent. That order was sought on the ground that the proceeding had, without leave of the Court, been commenced by the applicant, a corporation, otherwise than by a solicitor.
At the conclusion of the hearing of the motion I gave reasons for my conclusion that the statement of claim ought to be struck out but that the applicant should have liberty to file an amended statement of claim. I did not deal with the applications for security for costs but expressed the view that it was appropriate in the circumstances that those applications be stood over to the occasion when the matter was next before the Court.
In those circumstances, counsel for the first four respondents submitted that I should give effect to those views by dismissing the present proceeding, but reserving liberty to the applicant to commence a fresh proceeding. The basis of the submission was a proposition that the Court has no power, nunc pro tunc, to give leave to the applicant to commence proceedings otherwise than by a solicitor.
Order 4 r 14(2) of the Federal Court Rules provides:
“Except as provided by or under any Act, a corporation may not, without leave of the Court, commence or carry on any proceeding otherwise than by a solicitor.”
Counsel’s submission that I had no power, once the proceeding had been commenced otherwise than by a solicitor, to give leave under that rule was based on Individual Homes Pty Limited v Commonwealth Bank of Australia (1994) 50 FCR 372. In that case the Full Court, by majority, reached a conclusion expressed, at 375, 376, in these terms:
“As the proceeding by way of appeal purported to be commenced on behalf of the company otherwise than by a solicitor and leave to commence the proceeding without the intervention of a solicitor was not sought or given, the notice of appeal dated 19 May 1994 was not effective to institute an appeal. Consequently, the notice of appeal of that date was struck out as incompetent.”
The intending appellant had also filed a supplementary notice of appeal signed by a solicitor. The evidence was, however, that the solicitor had been instructed to do no more than file the notice of appeal; particularly he had no instructions in relation to the conduct of the appeal. In those circumstances the Court held that the supplementary notice of appeal was an abuse of process and should be struck out.
I do not think that that decision has anything to say, one way or the other, about the Court’s power to grant retrospective leave. At all events, the position is put beyond doubt by the later decision of the Full Court in ACT General Cleaning Company Pty Ltd v Naoum (1996) 67 FCR 361. That case arose under O 2A r 14(2) of the Supreme Court Rules 1937 (ACT), which is in the same terms as O 4 r 14(2) of the Federal Court Rules. There the Court granted leave in a case where a notice of appeal had been filed by a corporation without the intervention of a solicitor. The Court accepted (at 363) that unless leave were given the notice of appeal would not be valid. The Court decided on the merits that in the circumstances leave should (retrospectively) be granted. In the course of its reasons, the Court, at 363, referred to Individual Homes, but without suggesting that that decision cast any doubt on the power of the Court to grant leave retrospectively.
Since the hearing of the motions I have confirmed my impression that the Court from time to time grants leave retrospectively, in proper cases, to the extent of discovering that French J made such an order in Penale Pty Ltd v McLernon Group Ltd (Federal Court of Australia, 17 November 1997, unreported).
The evidence (including an admission made in the course of argument on behalf of the applicant) disclosed sufficient of the applicant’s financial condition and of the association with it of Mr Hardcastle (who prepared and filed the statement of claim and appeared by leave on the motions) to satisfy me that it is appropriate that I now give leave, retrospectively, to the applicant to commence the present proceeding, and to carry it on to the extent of filing and serving an amended statement of claim, otherwise than by a solicitor. As matters stand at present, I see no reason why leave would not be given to the applicant, if the matter is to proceed, to continue it otherwise than by a solicitor; that, however, can be dealt with when the matter is next before the Court. Accordingly, the orders of the Court are that:
1.Leave be granted to the applicant nunc pro tunc to commence the proceeding, and to file and serve an amended statement of claim as contemplated in Order 3, otherwise than by a solicitor.
2.The statement of claim be struck out.
3.The applicant have liberty to file and serve an amended statement of claim not later than 28 June 1999.
4.The applicant pay the costs of the first, second, third and fourth respondents and of the fifth, seventh, eighth, ninth and tenth respondents of their respective applications to strike out paragraphs of the statement of claim.
5.The applications of the first, second, third and fourth respondents and of the fifth, seventh, eight, ninth and tenth respondents for security for costs be stood over to 9:30 am on Monday, 5 July 1999.
6.The matter be listed for further directions at 9:30 am on Monday, 5 July 1999.
7.Each party have liberty to apply on five days’ notice.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane.
Associate:
Dated: 3 May 1999
Counsel for the First, Second, Third and Fourth Respondents:
Mr J S Drummond
Solicitor for the First, Second, Third and Fourth Respondents:
Bateman Battersby
Counsel for the Fifth, Seventh, Eighth, Ninth and Tenth Respondents:
Mr P B Walsh
Solicitor for the Fifth, Seventh, Eighth, Ninth and Tenth Respondents:
Noyce Lawyers
Date of Hearing:
28 April 1999
Date of Judgment:
3 May 1999
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