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 company, authorise representation of a company by the applicant or some other director of the company.
(2) The Court must be satisfied that a director who is to represent the company has power to bind the company in relation to the conduct of the proceeding.
(3) If a company lodges originating process for filing, and it does not appear from the process that a solicitor is acting for the company, the Registrar will accept it provisionally subject to the grant of an authorisation under subrule (1).
The application came before me on 23 August 2013. Mr Johanson indicated he had talked to a legal practitioner who had told him that the granting of leave was a matter of formality. Mr Johanson had filed an affidavit, which restated the order sought in the application. The affidavit provided no evidence in support of the application. I indicated during the hearing that the application was not a matter of formality, and referred Mr Johanson to Winn v Stewart Bros Constructions.[1]I granted an adjournment of the application so Mr Johanson could consider that authority and provide me with any further material in support of the application.
[1] (2012) 114 SASR 149.
During the adjournment I advised the respondent to the appeal, the Police, of the application. I invited them to attend on the resumed hearing of the application if so advised.
Mr Johanson provided an affidavit in support of the application. Mr Johanson deposes in the affidavit that the company is not in a financial position to employ a lawyer. Exhibited to the affidavit is a bank statement of the company. That statement indicates that although the company appears to be solvent, it has very limited cash reserves available to it. In the affidavit Mr Johanson further deposes that he is a director of the company. It is a family company which he controls. He deposes that he can adequately represent the company's interests.
When the hearing of the application resumed Mr Johanson submitted that, in the circumstances, it was appropriate for him to represent the company. He submitted that the time of the court would not be extended by the company’s failure to have a legal representative. He submitted that his experience with legal advice has not been a happy one and he believes that he can best represent the company.
Mr Grant, who appeared for the respondent, opposed the application. He submitted that a reading of the transcript before the learned Magistrate, and a consideration of the transcript of the application on 23 August 2013, demonstrate that Mr Johanson does not have an adequate understanding of the legal issues. Mr Grant submitted that in the circumstances, if leave were given the time and cost of the appeal would be extended because of the inability of Mr Johanson to adequately understand the legal and factual matters that are relevant to the appeal.
Mr Grant submitted that, in order to rebut the presumptions in the Road Traffic Act 1961 (SA) in respect of the offence,[2] it was necessary for Mr Johanson to have given evidence before the Magistrate. Mr Grant submitted that Mr Johanson misunderstood his position and chose not to give evidence before the Magistrate, which further demonstrates his misunderstanding of the law.
[2] See Road Traffic Act 1961 (SA) s 79B.
Mr Grant submitted that if this appeal is to have any prospects of success, it will be necessary for Mr Johanson to be called as a witness. Mr Johanson himself conceded that he intended to swear an affidavit upon which he intended to rely on the appeal. Mr Grant submitted that, in those circumstances, it would be inappropriate for Mr Johanson to be granted leave to represent the company, as he was a potential witness.
A lay advocate is not subject to the ethical precepts that bind legally qualified practitioners. Mr Grant submitted that on the previous hearing of the application, Mr Johanson misled me. Mr Johanson had suggested that he had not had an opportunity to give evidence before the Magistrate. The transcript of the proceedings before the Magistrate makes it clear that he was given the opportunity on a number of occasions to give evidence, but elected not to do so. Mr Johanson submitted that he unintentionally made that submission and that he did not intend to mislead me. I accept that that may well be the position and that he just misunderstood or forgot exactly what had occurred before the Magistrate. I make no judgment about whether the misinformation, which Mr Johanson accepts was given to me, was intentional. Nevertheless, it demonstrates that Mr Johanson does not understand or comprehend the importance of putting accurate information before the Court.
In Winn v Stewart Bros Constructions, Blue J considered the mirror provision to r 27 in the District Court Civil Rules 2006 (SA). His Honour surveyed comparable provisions in other jurisdictions. He observed:[3]
I consider that r 27 confers upon the court a broad discretion to be exercised judicially but not fettered by specific rules such as the “exceptional circumstances” criterion in England and Wales… In deciding whether to grant authorisation under r 27, the court needs to consider all relevant factors including not only the respective interests of the parties but also the public interest in the administration of justice. At the end of its consideration, the court will need to be satisfied that the overall balancing of factors favours authorisation in order to make an order. …
[3] (2012) 114 SASR 149, [34].
Justice Blue observed three rationales for the principle that a company does not have an absolute right to be represented by a person other than a legal practitioner:[4]
1.   The opposite party may be disadvantaged by the time and cost of the proceeding being extended due to the company not being represented by a legally qualified advocate.
2.   The public interest in the efficient and timely administration of justice may be prejudiced by the time and cost of the proceeding being extended due to the company not being represented by a legally qualified advocate.
3.   The public interest in the fair administration of justice may be prejudiced by the fact that a lay advocate (unlike a legally qualified advocate) does not owe a duty to the court and to the parties in the litigation to ensure that the court is properly informed and not misled.
[4] (2012) 114 SASR 149, [38].
I accept Mr Johanson’s submission that he is the sole director of what is a family company. The company has limited financial resources.
Nevertheless, there is a public interest in ensuring that hearings are not protracted and that appeals are properly instituted. In this respect, I have had regard to Mr Johanson’s conduct both in the Magistrates Court and before me.
I have considered the Notice of Appeal which was prepared by Mr Johanson on behalf of the company. The grounds of appeal are not easy to comprehend. Without seeking to make a final judgment, the Notice of Appeal and, in particular, the grounds of appeal appear to demonstrate a fundamental misunderstanding of the legal issues relevant to the reasons for judgment.
If the company is represented by Mr Johanson, I conclude that the Court will be faced with a number of irrelevant arguments, and the hearing will be protracted. Further, 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 is a further factor which weighs against the granting of leave.
Further, Mr Johanson has demonstrated that he is unable to discharge the duties of an advocate who is a legal practitioner. The respondent is likely to be prejudiced by a lengthy hearing without a properly prepared outline of argument, thereby defining the issues to which the respondent must respond.
The application is refused.