John Sheahan and Le Poidevin Industries Pty Ltd v Northern Australia Land and Agency Co Ltd

[1993] SASC 3815

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Legal practitioners - Barristers - Barrister appeared at the trial as counsel for himself (being one of the defendants) and for the other two defendants, being respectively his mother, ahd a' company in which he was the chief executive officer - he was also the solicitor on the record, and was personally responsible for entering up the general ledger and journal of the defendant company, and for drawing up two transfers of land, and two mortgages, the authenticity of all of which documents being under challenge in the action - on objection being taken to the admissibility of the impugned documents on the ground of want of Proof, counsel for the defendants then indicated that he wished to give evidence as a witness to prove the execution of the documents- but sought to retain his role as counsel held that his position was completely untenable - ruling that he could no longer be heard as counsel.
Law Society of South Australia Professional Conduct Rules 16.2(f) and 16.2(g) and Supreme Court Rules 36.01 and 36.13. Halsburv's Laws of England. 4th ed vol 17 para 233; Halsburv's Laws of England 4th ed. vol 3 para 1187; R v Secretary of State for India ex parte Ezekiel (1941) 2 KB 169; Stone v Bryson (1846) 4 Dow and L 393 and Ferry v Bonnin and Ors (1889) 23 SALR 66, considered.

HRNG ADELAIDE, 4 February, 1993 #DATE 4:2:1993
Counsel for plaintiffs:         Mr J Cudmore
Solicitors for plaintiffs:     Ward and Partners
Counsel for defendants:         Mr D Le Poidevin

ORDER
Hearing adjourned to enable steps to be taken to secure proper representation of the defendants

JUDGE1 PERRY J In this matter the liquidator of Le Poidevin Industries Pty Ltd (In Liquidation) ("the company"), together with the company as co-plaintiff, sues Northern Australia Land and Agency Co Pty Ltd (Northern Australia Land) and two other defendants, namely Dean Kiverton Le Poidevin and Gloria Dawn Le Poidevin. It is asserted, and not disputed, that Dean Kiverton Le Piodevin was a director and secretary of the company, as was Gloria Dawn Le Poidevin, who, I am informed, is his mother. The solicitor on the record for all three defendants is Mr D.K. Le Poidevin of 8/1A Wattle Terrace, Plympton Park, which is described in the papers before me as the address of the company, which I assumed to mean the registered office. 2. The plaintiffs, inter alia, seek to have transfers of two properties comprising broad acres at Owen and at Angle Vale respectively to a related company, being the first defendant, Northern Australia Land, declared void under s.468 of the Corporations Law. 3. At the commencement of the hearing Mr Le Poidevin indicated that he appeared for all three defendants. I took the view that that was undesirable in the circumstances, and I drew that to his attention, but without taking the matter further at that stage. However, I returned to the matter a little later when I pointed out that Mr Le Poidevin had the ability to apply for leave to act on behalf of the defendant company pursuant to Rule 36.11(1) if he otherwise qualified under the Rule, although a difficulty was posed by Rule 36.13 which precludes the appointment of a legal practitioner to represent a company under that rule. 4. I also drew attention to the Professional Conduct Rules promulgated by the Law Society of South Australia, and in particular Rule 16.2(f) which states: "Counsel shall not act in any proceedings in which it is likely that he will be required to give evidence." and (g): "Counsel shall not act in any proceedings in which it is likely that he will have a direct or indirect interest (other than as counsel) in the outcome of the proceedings." 5. After I had drawn the attention of Mr Le Poidevin to those matters, he asked for leave to appear for all of the defendants. I enquired of him whether he sought leave to appear as a practitioner, that is, as counsel, or as a lay person appearing in his own right insofar as he was a defendant, and in the case of Northern Australia Land by reason of the right of audience given under Rule 36.11(1). Mr Le Poidevin indicated that he was seeking leave to appear as counsel for all three defendants. I then indicated that I would like an assurance, before ruling on the matter, that he was not likely to give evidence. His reply was that: "As long as the facts go in by consent, the likelihood is that I will not have to give evidence." 6. With much hesitation I took the view at that stage that it was proper to allow Mr Le Poidevin to continue to appear in the matter as counsel, notwithstanding the fact that the possibility that he might wish to give evidence could not, on the fact of it, be entirely excluded. 7. Today that very problem has presented itself. When Mr Le Poidevin sought to tender certain documents as part of the case of the defendants, counsel for the plaintiffs indicated that the tender of the documents was opposed. Thereupon Mr Le Poidevin sought leave to give sworn evidence with a view to proving the documents, which include sheets from the company's general ledger and journal, two contracts of sale, and two mortgages. Most of the documents are said to have been handwritten by Mr Le Poidevin himself. Indeed, almost all of the documentation which has been tendered in the case so far has emanated from him in one way or another. 8. The genuineness of the documents, and in particular transfers of the subject land, which are said to have been executed over a year before they were presented for registration at the Lands Titles Office, is very much in issue in the action. It follows that the giving of evidence by Mr Le Poidevin will be no mere formality and is likely, if it was to be otherwise permitted, to result in close and adverse cross examination. 9. Even without reference to authority, it seems to me that in that situation, Mr Le Poidevin is in an impossible position. It would not be right, on the face of it, to allow him to give evidence and then to allow him to resume his position as counsel and then be involved in argument as to his own credibility and the authenticity of the documents which emanated from him. 10. Upon Mr Le Poidevin indicating his desire to give evidence, I then informed counsel that I would give them an opportunity to present legal argument on the question. Following a brief adjournment, Mr Le Poidevin submitted that, on the basis of certain authorities to which I had directed counsel's attention, as he put it, there was a discretion in the matter, which he sought to have exercised in his favour. 11. Halsbury's Laws of England, 4th ed, vol 17 states at para 233: "Counsel or solicitors who are appearing as advocates in a case should not also act in that same case as witnesses, but if they tender evidence, there evidence is not inadmissible." 12. In vol 3 of the same work at para 1187, appears the following: "A barrister should not act as counsel and witness in the same case ..." 13. In R v Secretary of State for India ex parte Ezekiel (1941) 2 KB 169 there appears a footnote at the end of the judgments of the Court of Appeal to the following effect (p.175):
    "(1) After the judgments had been delivered in this case,
    Humphreys J said: Before the court parts with this case, there is
    a short observation which the other members of the court desire
    me to make and with which I agree. It was brought to the
    attention of the court that, on the hearing at Bow Street police
    court, junior counsel on one side was called as a witness to
    prove certain aspects of Indian law and continued thereafter to
    act as counsel in the case. No objection was taken to this by
    counsel on the other side. We think it right to point out that
    this is irregular and contrary to practice. A barrister may be
    briefed as counsel in a case or he may be a witness in a case.
    He should not act as counsel and witness in the same case." 14. In Stones v Byron (1846) 4 Dow and L 393 at p.395 Patteson J said:
    "Here the attorney for the plaintiff makes a speech and conducts
    the cause as his advocate, and examines the witnesses, and
    addresses the jury in reply to the defendant's counsel, and
    afterwards calls himself as a witness. I must say that I do not
    think that such a course of proceeding is proper, or consistent
    with the due administration of justice. It seems to me,
    therefore, that his evidence ought not to have been received,
    and, having been received, that there ought to be a new trial." The report of the case contains a footnote as follows:
    "(a) The learned counsel stated that the only instance in which
    he had been able to find that such a proceeding had been
    permitted, was in the trial of Sir Thomas More, in the time of
    Henry the Eighth, when the then Solicitor General, who was
    conducting the prosecution against that eminent man, 'to his
    eternal disgrace,' to use the words of Lord Campbell, in relating
    the fact in his Lives of Chancellors, vol 1, p.574, 'and to the
    eternal disgrace of the Court who permitted such an outrage on
    decency, left the bar and presented himself as a witness for the
    Crown'.
    (b) This case was referred to, and acted upon, in a subsequent
    case of Deane v Packwood, in Hilary Term, 1847, before Mr Justice
    Erle, in this Court. There the attorney for the plaintiff, after
    opening the case, tendered himself and was admitted as a witness.
    And Mr Justice Erle made absolute a rule for a new trial on this
ground." 15. The only reported decision in this Court which I have been able to find is Ferry v Bonnin and Ors (1889) 23 SALR 66. In that case, P.F. Bonnin, who was one of the defendants, appeared as counsel with Mr Nesbit for the defendants. At the outset of his judgment Boucaut J said (68):
    "I have consulted my learned colleague the Chief Justice as to
    the position of the learned counsel Mr Bonnin, who appeared for
    himself and others, and the Chief Justice has agreed with me in
    the view that I take, and in future I will rule that no person
    can take both the position of suitor and counsel. A person has
    no right to take both positions, and a rule had been passed on
    that in England, and in future in such instances the person will
    have to elect to take the position of counsel or that of suitor;
    he cannot take both." 16. In my opinion, the position taken by Mr Le Poidevin in this case has become, if it was not from the start, completely untenable and cannot be allowed. 17. Whether or not the authorities to which I have referred identify a discretion or a rule of law, does not, in the particular circumstances of this case, matter. It seems to me that even if there was to be a discretion in the matter, there are no grounds identified by Mr Le Poidevin which could possibly result in the exercise of the discretion in his favour. 18. His appearance as counsel in the first place was irregular in that he was purporting to appear for himself and for other parties with whom he clearly had an interest, namely, his mother and a company in which he was involved as an officer. Now the position has been reached where he wishes to give evidence but to maintain his position as counsel. In my opinion, this cannot be allowed, and I rule that I can no longer hear him as counsel for the defendants. 19. I will adjourn the matter for a short time to enable him to consider his position. 20. (After hearing further submissions, His Honour adjourned the hearing to enable steps to be taken to secure proper representation of the defendants).