Flymore Pty Ltd v Police - [2013] SASC 142

Supreme Court of South Australia
(Applications Under Various Acts or Rules: Criminal)
FLYMORE PTY LTD v POLICE
[2013] SASC 142
Judgment of The Honourable Justice Sulan (ex tempore)
5 September 2013
CORPORATIONS - LEGAL CAPACITY AND RELATIONS WITH OUTSIDERS - EXTERNAL LITIGATION PROCEDURE - APPEARANCE IN COURT BY COMPANY AND REPRESENTATION
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - APPEARANCE AND DEFAULT OF APPEARANCE
The appellant, Flymore Pty Ltd, was convicted in the Magistrates Court of being the owner of a vehicle detected travelling above the speed limit, and being the owner of a vehicle being driven without registration or insurance.
The company has appealed to this Court. Mr Johnson, the appellant's sole director and controlling shareholder, sought leave to represent the company on appeal, pursuant to r 27 of the Supreme Court Civil Rules 2006 (SA).
Held: Application refused. The granting of leave in this case would result in a protracted hearing. It is unlikely that any submissions made by Mr Johanson will assist the Court. The probability that Mr Johanson would be a witness on the appeal also weighs against the granting of leave.
Road Traffic Act 1961 (SA) s 79B, s 79B(c)(i)(ii)(iii); Supreme Court Civil Rules 2006 (SA) r 27, referred to.
Winn v Stewart Bros Constructions (2012) 114 SASR 149, considered.

FLYMORE PTY LTD v POLICE
[2013] SASC 142
Magistrates Appeal: Application

SULAN J: Flymore Pty Ltd (“the company”) was charged with being the owner of a Volkswagen motor vehicle which was detected travelling at 58 km/h in a 50 km/h zone on King William Street, Adelaide at about 2.20 pm on 25 December 2011.
The company was further charged with being the owner of the same vehicle being driven on the same date without registration and without insurance.
At trial before the Chief Magistrate, the company was represented by Mr Johanson. He is the sole director and controlling shareholder of the company. During the trial Mr Johanson raised a number of legal issues. He was invited by the Chief Magistrate to consider giving evidence, but he elected not to do so. On 16 May 2013, the company was convicted of both offences.
The company has sought to appeal the decision of the Chief Magistrate. The notice of appeal appears to have been drafted by Mr Johanson. The appeal is against the whole of the judgment. The grounds of appeal are as follows:
·refusal to recognise the Road Traffic Act 1961 s 79B(c)(i)(ii)(iii);
·refusal to recognise Commonwealth law;
·Denial of right to due process and procedural standards;
·refusal to recognise action as a civil matter; and
·refusal to recognise our right to a court of competent jurisdiction.
By interlocutory application dated 6 August 2013, Mr Johanson applied, pursuant to r 27 of the Supreme Court Civil Rules 2006 (SA), for leave to represent the company on the appeal. Rule 27 provides:
27—Representation of company
(1) The Court may, on application by a director of 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] SASC 142
Decision Date

CaseChat Overview and Summary

Flymore Pty Ltd has appealed against its conviction in the Magistrates Court of being the owner of a vehicle detected travelling above the speed limit, and being the owner of a vehicle being driven without registration or insurance. Mr Johnson, the sole director and controlling shareholder of the company, applied to the Supreme Court for leave to represent the company on the appeal, pursuant to r 27 of the Supreme Court Civil Rules 2006 (SA). The primary legal issues before the court were whether the application for leave to represent the company should be granted and what factors the court should consider in making that decision. The court considered the rationales for the principle that a company does not have an absolute right to be represented by a person other than a legal practitioner. The court found that the application should not be granted. The granting of leave in this case would result in a protracted hearing. It is unlikely that any submissions made by Mr Johanson would assist the court. The probability that Mr Johanson would be a witness on the appeal was a further factor which weighed against the granting of leave. The application was refused.

The court considered the broad discretion conferred upon it by r 27. In deciding whether to grant authorisation under r 27, the court needed to consider all relevant factors, including not only the respective interests of the parties but also the public interest in the administration of justice. The court concluded that the overall balancing of factors did not favour authorisation in this case. The court found that the application was refused and the appeal would proceed without Mr Johanson representing the company.

Orders