Jones v Bienewitz, Bienewitz and the State of South Australia - [2006] SASC 224

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal from a Master)
In the Matter of TEMPORARY FILE NO LI-2006-1
JONES v BIENEWITZ, BIENEWITZ AND THE STATE OF SOUTH AUSTRALIA
[2006] SASC 224
Judgment of The Honourable Justice White
25 July 2006
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT
Appeal against decision of Master - appellant sought leave, pursuant to r 36.11, to represent two corporate entities in a proposed action - affidavits lodged in support of the r 36.11 application failed to satisfy the requirements of that rule - Master adjourned the hearing of the r 36.11 application until further evidence could be put before the court in support of that application.
Held: no error was made by the master in adjourning both applications - appeal dismissed.
Supreme Court Rules r 36.11, r 97.03, r 102.09, referred to.

JONES v BIENEWITZ, BIENEWITZ AND THE STATE OF SOUTH AUSTRALIA
[2006] SASC 224
Appeal from a Master
WHITE J:

In April 2005 Mr Brian Jones, who is now resident in the United Kingdom, forwarded to this Court a summons which he wished to have issued out of this Court. The summons named three plaintiffs, two of whom were corporate entities. The first of those corporate entities was described as Atilol Enterprises Pty Ltd and was stated to be in liquidation. The second was described as Encoreprojex Corporation (Ok) Inc.
At all times up until today Mr Jones has been unrepresented. He has engaged in a substantial correspondence with members of the registry of this Court in relation to the proposed issue of the proceedings. The proposed pleadings, and his correspondence with the registry staff, reflect the fact that Mr Jones is unrepresented, and has little familiarity with the requirements of this Court with respect to the institution of proceedings and pleadings.
One matter that was raised with Mr Jones at an early stage by the court was the question of whether he could, as he has sought to do, represent the two corporate entities in the proposed action. The circumstances in which a company may be given leave to appear by a person other than a legal practitioner are governed by r 36.11 which provides:
(1) A company may apply for leave to act in an action in person and to appear in Court or in Chambers by a managing or governing director or other person in whom by the articles of association of the company or the powers of the board of directors are vested between board meetings if he is authorised by a resolution of the company so to do.
(2) Where a company seeks to issue a summons other than through a solicitor such summons shall be filed together with an application for leave under subrule (1), but the summons shall only be issued if the Court gives leave under subrule (1) upon a hearing of the application.
(3)     On the hearing of an application the company must satisfy the Court:
(a) that the person seeking to represent the company is authorised by the company to do so and has power to bind the company;
(b)        that that person has authority to make admissions and give undertakings               which will bind the company;
(c) that that person has power on behalf of the company to sign originating process or notices to defend or set aside process as the case may be;
(d)        that it is otherwise proper that the order be made.
(4) Any signature to any process or document filed in the Registry by a person in whose favour an order is made under subparagraph (1) hereof shall be valid and shall bind the company.
(5) Any document filed under this Rule shall state the capacity in which the party signed the document signs it and that he has the authority of the company to do so.
In a decision delivered on 15 November 2005 a master of this Court, Judge Lunn, outlined the information which he would need before he could make an order pursuant to r 36.11 permitting Mr Jones to represent the two corporate entities in the proceedings. Having referred to affidavits which had been lodged by Mr Jones with a view to satisfying r 36.11, the master said:
The affidavits which have been lodged by the first plaintiff do not satisfy the requirements of r 36.11. For each corporation there needs to be evidence of:
1     the due incorporation of the corporation by an admissible certified copy of the appropriate record of the incorporating authority;
2     the relevant parts of the Constitution of the corporation proved by admissible evidence through some certified copy by the authorised authority in place of incorporation as to the means by which officers or agents of the company can bind it and institute and prosecute Court proceedings on its behalf in Australia;
3     evidence of the acts of the corporation in an admissible form by which the necessary powers have been conferred on the first plaintiff; (An affidavit of the first plaintiff is not acceptable as sole proof of his authorisation.)
4     proper proof of the matters on which the Court is required to be satisfied under r 36.11(3)(a)-(c);
5 affidavit evidence by a person legally qualified in Corporations Law in the place of the incorporation of the corporation which is admissible as proof of foreign law in South Australia that the documentary evidence put forward has the legal effect in the place of incorporation to satisfy r 36.11(3)(a)-(c) for any appointment of the first plaintiff as a representative of the corporation.
In relation to Atilol the name of the company suggests that it has been placed into liquidation. This will need to be explained and proper evidence of the law in the place of incorporation put forward to show how the first plaintiff can still be a director or officer of that company after it has gone into liquidation. (That would not be the case in this State). Proper proof would also be required that any liquidator authorises the appointment of the first plaintiff.
The master then concluded that the evidence provided by Mr Jones did not satisfy r 36.11 in respect of either of the two proposed corporate plaintiffs. He said:
I will adjourn the applications to a date to be fixed and will further consider them if and when more evidence is put forward. However, until an order is made under r 36.11 the summons naming the corporations as plaintiffs will not be issued.
The master also indicated that he was not prepared to consider the question of whether or not any direction should be made pursuant to r 102.09 in respect of the proposed proceedings until the issues arising under r 36.11 had been resolved.
In effect therefore what the master did was to adjourn further consideration of the question of whether or not the proposed summons provided by Mr Jones should be issued.
Mr Jones has appealed against those orders. The notice of appeal bears the date 18 April 2006. It is not precisely clear as to when that notice of appeal was received by the court but, whenever it was received, it was well outside the 14 days fixed by r 97.03 of the Supreme Court Rules for the institution of such an appeal. Hence Mr Jones would need an extension of time within which to institute the appeal.
The notice of appeal indicates that Mr Jones wishes to appeal against what he describes as “the dismissal of an application for leave to issue a summons for the proposed action between Jones v State of South Australia and Others”. That reveals, with all respect to Mr Jones, a misapprehension on his part. From what I have said above, it can be seen that the master has not dismissed his application for leave to issue the summons. I repeat that what the master did was to adjourn consideration of the question until further information of the kind which he had identified in his reasons had been provided to him.
Mr Jones has, only shortly before the hearing of this appeal, retained a legal firm to act for him and that firm has in turn retained Mr Tredrea who has appeared today. Having only recently been instructed and, bearing in mind the volume of material on the file, it is quite understandable that neither the firm nor Mr Tredrea is fully appraised of all the matters which have transpired between Mr Jones and this Court in relation to the proposed issue of proceedings by Mr Jones.
Mr Tredrea has indicated, quite fairly and properly, that he is unable to point to any error in the decision by the master adjourning the question of the issue of the summons pending the receipt of the further information which the master had outlined in his reasons. Nor is he able to point to any error by the master in deciding that he wished the issues arising under r 36.11 to be resolved before proceeding to consider the question of whether or not any orders should be made in connection with the proposed proceedings pursuant to r 102.09.
I am satisfied that the master has not erred in either respect. It was well within his discretion to decide that the questions arising under r 36.11 should be resolved at the outset. The master set out in his reasons, for the assistance of Mr Jones, the matters about which he would need to be satisfied in relation to r 36.11. For reasons which are not clear, Mr Jones appears to have misconstrued the effect of the master’s reasons. It would have been preferable for Mr Jones to have addressed the matters raised by the master rather than seeking to appeal his decision which, of course, involves him having to show that the master’s decision was wrong.
As I understand it from Mr Tredrea this morning, if the matter is remitted to the master it may well be that the firm of legal practitioners now instructed by Mr Jones will be instructed to give proper attention to the form of the proposed proceedings, the plaintiffs which are necessary - and it may well be that the two corporate entities will not continue to be named as plaintiffs, the persons who should be named as the defendants, as well as the causes of action to be pursued by the plaintiff.
I would encourage Mr Jones to continue his retention of legal practitioners in this State who are familiar with the requirements for the institution of proceedings, for pleadings, and for the identification of parties. In that way any proceedings which he does wish to pursue in this Court should be able to be pursued much more expeditiously than has been the case hitherto.
For present purposes, however, I am satisfied that no error by the master in his decision and reasons on 15 November 2005 has been demonstrated. Given the history of this matter, I will grant the appellant an extension of time, but I dismiss the appeal. It is not necessary to make any order in relation to costs.