Enviro Pak Pty Ltd v New Horticulture Pty Ltd - [2013] FCA 306

FEDERAL COURT OF AUSTRALIA
Enviro Pak Pty Ltd v New Horticulture Pty Ltd [2013] FCA 306

Citation: Enviro Pak Pty Ltd v New Horticulture Pty Ltd [2013] FCA 306

Parties: ENVIRO PAK PTY LTD ACN 116 567 018 v NEW HORTICULTURE PTY LTD T/AS GREEN PACK ACN 086 979 437 and JOACHIM WALTER KOESTERKE; NEW HORTICULTURE PTY LTD T/AS GREEN PACK ACN 086 979 437 and JOACHIM WALTER KOESTERKE

File number: NSD 1124 of 2012

Judge: GRIFFITHS J

Date of judgment: 2 April 2013

Catchwords: PRACTICE AND PROCEDURE – corporate respondent – leave to appear otherwise than by a solicitor – general principles and relevant factors to the exercise of discretion to grant dispensation

Legislation: Designs Act 2003 (Cth) s 93
Federal Court Rules 2011 rr 1.34, 4.01(2)

Cases cited: Deputy Commissioner of Taxation v Compumark Pty Ltd (2012) 292 ALR 83
Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241
Worldwide Enterprises Pty Ltd v Silberman (2009) VSC 165

Date of hearing: 2 April 2013

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 26

Solicitor for the Applicant: Mr P Tahar

Representative for the First Respondent: The second respondent appeared on behalf of the first respondent

Second Respondent: The second respondent appeared on his own behalf

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1124 of 2012

BETWEEN:
ENVIRO PAK PTY LTD ACN 116 567 018
Applicant

NEW HORTICULTURE PTY LTD T/AS GREEN PACK ACN 086 979 437
First Cross-Claimant

JOACHIM WALTER KOESTERKE
Second Cross-Claimant

AND:
NEW HORTICULTURE PTY LTD T/AS GREEN PACK ACN 086 979 437
First Respondent

JOACHIM WALTER KOESTERKE
Second Respondent

JUDGE:

GRIFFITHS J

DATE OF ORDER:

2 APRIL 2013

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.Pursuant to r 1.34 of the Federal Court Rules 2011 dispensation is granted to the first respondent from compliance with r 4.01(2), such that the second respondent may appear in this matter on behalf of the first respondent.
2.The matter be listed for directions at 9:30am on 7 May 2013.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1124 of 2012

BETWEEN:
ENVIRO PAK PTY LTD ACN 116 567 018
Applicant

NEW HORTICULTURE PTY LTD T/AS GREEN PACK ACN 086 979 437
First Cross-Claimant

JOACHIM WALTER KOESTERKE
Second Cross-Claimant

AND:
NEW HORTICULTURE PTY LTD T/AS GREEN PACK ACN 086 979 437
First Respondent

JOACHIM WALTER KOESTERKE
Second Respondent

JUDGE:

GRIFFITHS J

DATE:

2 APRIL 2013

PLACE:

SYDNEY

REASONS FOR JUDGMENT
Introduction

The Court has before it for hearing today an interlocutory application filed on behalf of the first respondent. The application is dated 5 March 2013. Relevantly, the first respondent seeks dispensation under r 1.34 of the Federal Court Rules 2011 from the requirement in r 4.01(2), which is to the effect that a corporation must not proceed in the Court other than by a lawyer.
The…

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

Case: [2013] FCA 306
Decision Date

CaseChat Overview and Summary

The case of Enviro Pak Pty Ltd v New Horticulture Pty Ltd [2013] FCA 306 involved a dispute between Enviro Pak Pty Ltd and New Horticulture Pty Ltd (trading as Green Pack), with Joachim Walter Koesterke also a party to the litigation. The primary issue in the case was whether the court should grant dispensation to allow Mr Koesterke, who was the sole director and shareholder of New Horticulture Pty Ltd, to represent the company in the proceedings in addition to representing himself. This request was made under r 1.34 of the Federal Court Rules 2011, which generally requires corporations to be represented by a lawyer.

The court had to consider several factors in deciding whether to grant the dispensation. These factors included the financial capacity of the company, the effect of diverting resources to pay legal fees, the nature of the company's operations, its financial structure, and its ability to retain staff. Other relevant considerations were the complexities of the case, the competency of the proposed representative, and the stage of the proceedings. The court also took into account the fact that Mr Koesterke was already representing himself in the litigation, which would otherwise require the applicant to deal with him in any event.

Justice Griffiths, who presided over the case, found that New Horticulture Pty Ltd was indeed in financial difficulty, making it challenging for the company to afford legal representation. Additionally, because Mr Koesterke was the sole director and shareholder, there was no conflict of interest in him representing the company. The court also noted that the proceedings were well advanced, with pleadings closed and significant evidence already filed. Although the issues were complex, the court was satisfied that Mr Koesterke, despite his limited litigation experience, could competently represent the company.

In conclusion, the court granted the application for dispensation, allowing Mr Koesterke to represent New Horticulture Pty Ltd in the proceedings. The court ordered that Mr Koesterke could appear on behalf of the company and that the matter be listed for directions on 7 May 2013.

Orders