J and E Vanjak Pty Ltd v Parton

[2018] FCCA 3520

FEDERAL CIRCUIT COURT OF AUSTRALIA

J & E VANJAK PTY LTD v PARTON & ANOR [2018] FCCA 3520

Catchwords:
BANKRUPTCY – Rule 9.04 of Federal Circuit Court Rules 2001 – Applicant company’s failure to be legally represented – Applicant company’s failure to file application for leave to not be legally represented – application dismissed.

Legislation:

Bankruptcy Act 1955 (Cth)

Applicant: J & E VANJAK PTY LTD
(ACN 158 539 943)

First Respondent: NEVILLE WILLIAM PARTON

Second Respondent: DAVID JAMES HAMBLETON (AS TRUSTEE OF THE PROPERTY OF NEVILLE WILLIAM PARTON, THE DEBTOR)

File Number: BRG 223 of 2018

Judgment of: Judge Vasta

Hearing date: 19 November 2018

Date of Last Submission: 19 November 2018

Delivered at: Brisbane

Delivered on: 19 November 2018

REPRESENTATION

The Applicant appearing on her own behalf via telephone link.

The First Respondent appearing on his own behalf.

The Second Respondent appearing on his own behalf.

ORDERS

1. The Application filed on 7 March 2018 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 223 of 2018

J & E VANJAK PTY LTD (ACN 158 539 943)

Applicant

And

NEVILLE WILLIAM PARTON

First Respondent

DAVID JAMES HAMBLETON (AS TRUSTEE OF THE PROPERTY OF NEVILLE WILLIAM PARTON, THE DEBTOR)

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. When this matter was before Judge Jarrett on 30 July 2018, the director of the Applicant company, Ms Huang, appeared. The exchange between the Bench and Ms Huang was very instructive. His Honour said at page 4, after looking at making some orders in the matter, at line 24, asked Ms Huang:

   You’re a lawyer?

   Ms Huang said:

   No.  I’m self-representing.

   His Honour said:

   Self-representing?  So on what basis do they have to pay your travel costs if you’re not even a lawyer?

   Ms Huang said:

   Okay.  I could withdraw that, the last order.

   His Honour said:

   I see.  Sorry, what is your name?  I assumed you were a lawyer.  What is your name?

   Ms Huang said:

   No, no.  I’m a director of the first – of the applicant.  My name is Ms Huang.

   His Honour said:

   On what basis do you appear for the company then?

   Ms Huang said:

   I am the director of the company.  I have been ---

   His Honour said:

   That’s not enough. 

   Ms Huang said:

   I have been representing this company through all – since 2012.  I have been to the District Court, the Supreme Court.

   His Honour said:

   Well, you’re not in the District Court now, you’re in this Court and the rules of this Court say companies get represented by lawyers.

   Ms Huang said:

   Well, I’m – I didn’t know.  I don’t – I didn’t know that but ---

   His Honour said:

   Well, you’re expected to know that.

   His Honour said:

   Don’t screw your nose up at me, ma’am.  The rules of the Court are clear.  Companies appear by lawyers unless the Court gives leave to somebody else to appear for the company.  And directors are not generally people to whom leave is given because there is often a conflict and, second, directors don’t owe the same duties to the Court as legal practitioners do.  So on the next occasion the matter is before the Court, the company must appear either by a legal representative or an – or alternatively, there must be a properly constituted application for leave to appear on behalf of the company.

   Ms Huang said this:

   Okay.  I will do that, your Honour.

2. Three and a half months later, the matter is now mentioned before me.  Ms Huang has done nothing.  She has come here today, by phone, mind you, and has said “I want to make an oral application”. 

3. There is no material before the Court.  There has been no material filed by the Applicant company since the date of His Honour’s order, despite the assurances of Ms Huang that this would be done.  That means, pursuant to r.9.04, that the company is not represented before me.  It means that the company has no voice before me. 

4. The only voice is that that is here from the Respondents. Both Respondents are here before the Court, the Respondents being Neville William Parton and David James Hambleton as trustee of the property of Neville William Parton, the debtor.

5. It matters not what has happened then in this Court because there is no voice here for the Applicant. In those circumstances, I have no choice but to dismiss the application because of the lack of representation here by the company.

6. I take it that Ms Huang will want to appeal my judgment and so I will make sure that the transcript of these reasons is obtained and revised accordingly.  Thank you all very much.  That’s the end of the matter.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  9 January 2019