Kingsfield Holdings Pty Ltd v Lawfirst Pty Ltd [No 2]

[2023] WASC 297

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   KINGSFIELD HOLDINGS PTY LTD -v- LAWFIRST PTY LTD [No 2] [2023] WASC 297

CORAM:   LUNDBERG J

HEARD:   27 JULY 2023 WITH SUPPLEMENTARY SUBMISSIONS FILED ON 1 AUGUST 2023

DELIVERED          :   11 AUGUST 2023

FILE NO/S:   CIV 2167 of 2021

BETWEEN:   KINGSFIELD HOLDINGS PTY LTD

First Plaintiff

JEFFREY STEWART LEE

Second Plaintiff

AND

LAWFIRST PTY LTD

Defendant

Catchwords:

Practice and procedure - Appeal against a decision of a Registrar pursuant to O 60A of the Rules of the Supreme Court 1971 (WA) (RSC) - Scope of appeal - Consent of parties to determine substantive issue on appeal

Legal practitioners - Whether corporate legal practitioner employed by first plaintiff corporation as sole employee is entitled to represent that party as solicitor on the record - Proper construction of O 4 r 3(2) and O 12 r 1(2) RSC - Requirement that a body corporate may not begin or carry on proceedings otherwise than by a solicitor - Relevant policy considerations - Importance of independence and proper authorisation - Held that these proceedings are not being carried on for the first plaintiff corporation by a solicitor

Legislation:

Interpretation Act 1984 (WA), s 3, s 5 and s 8
Legal Profession Act 2008 (WA)
Legal Profession Uniform Law (WA), s 6(1) and s 47
Legal Profession Uniform Law Application Act 2022 (WA), s 361
Rules of the Supreme Court 1971 (WA), O 1 r 4, O 4 r 3, O 12 r 1 and O 60A
Supreme Court Rules Amendment (Legal Profession) Rules 2022 (WA)

Result:

The notice of change of representation dated 20 April 2023, filed in respect of the first plaintiff, be struck out
The notice of appeal is otherwise dismissed
The first plaintiff is to pay the defendant's costs of the appeal, to be fixed in the sum of $2,277 to be paid within 14 days

Category:    B

Representation:

Counsel:

First Plaintiff	:	Mr J S Lee
Second Plaintiff	:	Mr J S Lee
Defendant	:	Mr S F Popperwell

Solicitors:

First Plaintiff	:	Corporate Solicitor
Second Plaintiff	:	In person
Defendant	:	Popperwell & Co

Case(s) referred to in decision(s):

A1 for Maintenance Pty Ltd v SG Excellence WA Pty Ltd [2018] FCA 355

Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; (2009) 269 CLR 333

CVW Group Holdings Pty Ltd v Addison [2011] WASC 267

Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd [2000] WASC 178; (2000) 22 WAR 372

Hume v Goldblaze Nominees Pty Ltd as trustee for the Goldblaze Unit Trust [2021] WASCA 177

Kingsfield Holdings Pty Ltd v Lawfirst Pty Ltd [2022] WASC 161

Kingsfield Holdings Pty Ltd v Rutherford [2016] WASC 117

Krysiak v Housing Authority [2020] WASCA 119

Lee v Lawfirst Pty Ltd [2023] WASCA 59

Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited [2015] HCA 37; (2015) 256 CLR 104

Penson v Titan National Pty Ltd (No 2) [2015] NSWCA 403

Priority Networking Pty Ltd v Peterson [2018] WASC 36

Prow Pty Ltd v Commissioner of Police [2012] WASC 363

Scotts Head Developments Pty Ltd v Pallisar Pty Ltd [1994] NSWCA 281

Tanamerah Estates Pty Ltd v Tibra Capital Pty Ltd [2013] NSWSC 36

Tanning Research Laboratories Inc v O'Brien [1990] HCA 8; 169 CLR 332

Tritonia Limited v Equity and Law Assurance Society [1943] 1 AC 584

Tydeman v Asgard Group Pty Ltd, in the matter of Asgard Pty Ltd [2023] FCA 486

Winn v Stewart Bros Constructions Pty Ltd [2012] SASC 150; (2012) 114 SASR 149; (2012) 91 ACSR 200

Table of Contents

A.     Introduction and summary

B.      Factual background

The present action

Mr Lee and Kingsfield Holdings

C.     The Registrar's decision

D.     Relevant legislative provisions

E.      Contentions on the appeal

Kingsfield Holdings' position

Defendant's position

F.      Disposition

Construction of O 4 r 3(2) RSC

Application of O 4 r 3(2) RSC

G.     Orders

LUNDBERG J:

A.     Introduction and summary

1. In this court, by reason of O 4 r 3(2) and O 12 r 1(2) of the Rules of the Supreme Court 1971 (WA) (RSC), there is a requirement that bodies corporate must be represented by a solicitor such that only a solicitor can carry on the proceedings on behalf of a corporate litigant.  That is, there must be a solicitor on the record, who is then able to take formal steps in the proceedings, such as filing pleadings, initiating applications and giving discovery, by way of example. 

2. In contrast to other courts in Australia,[1] this court has no power to dispense with this requirement.[2]  The requirement cannot be waived or remedied by the exercise of inherent power.  The provisions in each Australian State and Territory, and in the Federal Court, were helpfully assembled and reviewed some years ago by Blue J in Winn v Stewart Bros Constructions Pty Ltd [2012] SASC 150; (2012) 114 SASR 149; (2012) 91 ACSR 200 [28].

   [1] Compare the position under the Federal Court Rules 2011 (Cth), where the equivalent requirement in rule 4.01(2) may be dispensed with pursuant to rule 1.34: A1 for Maintenance Pty Ltd v SG Excellence WA Pty Ltd [2018] FCA 355 [7] (Colvin J); and Tydeman v Asgard Group Pty Ltd, in the matter of Asgard Pty Ltd [2023] FCA 486 [7] (Stewart J). In the Supreme Court of NSW, an authorised director may carry on proceedings for the corporation in certain circumstances as permitted by rules 7.1(2)(a), (3) and (4) of the Uniform Civil Procedure Rules 2005 (NSW): Penson v Titan National Pty Ltd (No 2) [2015] NSWCA 403 (Meagher, Gleeson and Simpson JJA); and Tanamerah Estates Pty Ltd v Tibra Capital Pty Ltd [2013] NSWSC 36 [90] ‑ [94] (Hallen J).

   [2] Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd [2000] WASC 178; (2000) 22 WAR 372 [44], [47] (Hasluck J); Prow Pty Ltd v Commissioner of Police [2012] WASC 363 [18] (Hall J); and Hume v Goldblaze Nominees Pty Ltd as trustee for the Goldblaze Unit Trust [2021] WASCA 177 [15] (Murphy and Mitchell JJA).

3. This requirement does not preclude persons other than solicitors 'appearing' before the court as an advocate for a corporate litigant, such as in the capacity of a McKenzie friend, but the circumstances in which that may occur are extremely limited and the discretion to permit this course is to be exercised sparingly.[3]

   [3] Krysiak v Housing Authority [2020] WASCA 119 [83] (Murphy and Mitchell JJA); and Prow Pty Ltd v Commissioner of Police [20] - [23] (Hall J).

4. In this appeal, which is brought pursuant to O 60A RSC against a decision of a Registrar of this court, the first plaintiff (Kingsfield Holdings) seeks to agitate a narrow issue.  The sole issue which arises on this appeal is whether Kingsfield Holdings is able to be represented in this action through Mr Jeffrey Lee, who is the sole employee and sole in‑house counsel of Kingsfield Holdings, and who holds a practising certificate as a corporate legal practitioner.  Mr Lee was formerly the sole director, sole company secretary, and sole shareholder of Kingsfield Holdings (until 27 October 2022).  Additionally, Mr Lee is the second plaintiff to this action, and in that capacity he represents himself. 

5. Mr Lee advanced submissions to the effect that, whatever the previous position in this State may have been, the position has altered as a result of various changes to the legislative regulatory regime which governs legal practitioners in this State.  Those changes were introduced in 2022 in conjunction with the passage of the Legal Professional Uniform Law Application Act 2022 (WA) (Application Act).  The Application Act repealed the Legal Profession Act 2008 (WA) and introduced the Legal Profession Uniform Law (WA) (Uniform Law), as part of the national harmonisation of the legal profession throughout Australia.  A number of amendments were also made to the rules of this court to reflect nomenclature and other changes.[4]  In particular, various references to the term 'practitioner' were amended to refer to 'legal practitioner', including in O 12 r 1 RSC. The former definition of 'practitioner' in O 1 r 4 RSC was also deleted.

   [4] Supreme Court Rules Amendment (Legal Profession) Rules 2022 (WA) (SL 2022/74).

6. The defendant, which was represented by Mr S F Popperwell at the appeal hearing, was not persuaded that these legislative changes had the effect for which Mr Lee contended. The defendant opposed Mr Lee acting for Kingsfield Holdings in the manner disclosed in the notice of change of representation which was filed on 20 April 2023, on the basis it was contrary to O 4 r 3(2) RSC.

7. It is not necessary for the purposes of this appeal that I express any view as to whether it is generally permissible for in‑house legal practitioners to represent, on the record, their employer body corporate in legal proceedings in this court.  It is sufficient, in order to dispose of this appeal, that I address the particular circumstances of Mr Lee's representation of the first plaintiff.

8. Further, the issue before me does not require any determination or finding that there is or may be a conflict between the interests of Mr Lee and those of Kingsfield Holdings. No application has been brought in this respect. Rather, I am concerned with the question whether O 4 r 3(2) RSC entitles Kingsfield Holdings to be represented in the present manner, that is, through Mr Lee as its corporate legal practitioner.

9. In my view, in the particular factual circumstances which have been disclosed on this appeal, to allow these proceedings to be conducted for the first plaintiff through Mr Lee would in effect mean the proceedings are being conducted 'by' Kingsfield Holdings, and not 'by' a solicitor.  I am therefore of the view that these proceedings are presently being carried on for the first plaintiff body corporate 'otherwise than by a solicitor', in that it is Kingsfield Holdings itself who is carrying on the proceedings, in contravention of O 4 r 3(2) RSC. My detailed reasons for reaching this conclusion are set out below.

B.     Factual background

The present action

1. It is unnecessary for the purposes of this appeal to set out the precise details of the plaintiffs' claims in the present action.  It is sufficient to note that the plaintiffs bring this action against the defendant law firm, seeking damages for breach of contract and breach of duty.  The plaintiffs allege that the defendant law firm was retained by them to act in defamation claims brought against Mr Rutherford in this court and to advise them in their dealings with Mr Rutherford.  The defamation action brought by the plaintiffs was ultimately unsuccessful:  Kingsfield Holdings Pty Ltd v Rutherford [2016] WASC 117 (Kenneth Martin J).

2. On 11 May 2022, substantial portions of the plaintiffs' statement of claim in the present action were struck out by Master Sanderson:  Kingsfield Holdings Pty Ltd v Lawfirst Pty Ltd [2022] WASC 161. That decision has been the subject of an appeal to the Court of Appeal: Lee v Lawfirst Pty Ltd [2023] WASCA 59. The Court of Appeal declined leave to appeal, other than in respect of one specific aspect of the appeal.[5]  The balance of the appeal will be heard by the Court of Appeal on 24 October 2023.

Mr Lee and Kingsfield Holdings

[5] Being the issue identified at [65.1] of the Court of Appeal's reasons.

1. Mr Lee is a former director and former company secretary of Kingsfield Holdings.  He resigned from those positions on 27 October 2022, shortly before sequestration orders were made in relation to his estate.[6]  The sole director and company secretary of Kingsfield Holdings is now Mr Alan James Camp.[7]  Mr Lee also appears to have transferred his shareholding in Kingsfield Holdings to Mr Camp, such that Mr Camp is now the sole shareholder in the company.[8]  The circumstances in which this occurred have not been explained.  That is, there is no evidence before me as to the instruments or transactions involving Mr Camp and Mr Lee by which the shares in Kingsfield Holdings were transferred.  

   [6] Affidavit of Phylicia Elizabeth Fenwick sworn 19 July 2023, PEF1, page 5, and PEF2, page 10.

   [7] Affidavit of Phylicia Elizabeth Fenwick sworn 19 July 2023, PEF1, page 5.

   [8] Affidavit of Phylicia Elizabeth Fenwick sworn 19 July 2023, PEF1, page 6.

2. Initially, Kingsfield Holdings was represented in this action by Bayview Legal, a law firm of which Mr Lee was the proprietor.  On 20 April 2023, Kingsfield Holdings filed and served a notice of change of representation (Folio 50), indicating that the first plaintiff was represented by Mr Lee, as a 'corporate solicitor', with an address in Mosman Park.[9]

   [9] Affidavit of Alan James Camp sworn 11 July 2023, JL4, page 13.

3. The affidavit filed by Mr Camp, sworn 11 July 2023, attaches a practising certificate issued by the Legal Practice Board of Western Australia which relevantly states that 'The Legal Practice Board certifies that Jeffrey Stewart Lee … is authorised to engage in legal practice as a Corporate legal practitioner for the period 1 July 2023 until 30 June 2024'.[10]

   [10] Affidavit of Alan James Camp sworn 11 July 2023, JL1, page 8.

4. In addition, a letter from the Legal Practice Board to Mr Lee dated 8 December 2022 stipulates that certain conditions would be imposed on Mr Lee's entitlement to practise.[11]  One of those conditions (being condition (a)), imposed pursuant to s 89(3)(b) of the Uniform Law, was that Mr Lee was authorised to only engage in legal practice as an employee of a law practice.  The letter clarified this condition in the following manner:

   By way of clarification, in relation to proposed condition (a), under section 47(4) of the Uniform Law an Australian practising certificate authorising the holder to engage in legal practice as an employee of a law practice also authorises the holder to engage in legal practice as a corporate legal practitioner or government legal practitioner.[12]

   [11] Affidavit of Alan James Camp sworn 11 July 2023, JL1, page 9.

   [12] Affidavit of Alan James Camp sworn 11 July 2023, JL1, page 10.

5. Mr Camp has included in his affidavit a resolution of Kingsfield Holdings which, on its face, indicates that a resolution was passed by the company on 25 January 2023 to appoint Mr Lee as corporate legal practitioner for the company.[13]  Allied to this, Mr Camp has attached a letter written by him to Mr Lee, dated 25 January 2023, which confirms Mr Lee's 'employment and appointment as a corporate legal practitioner for Kingsfield Holdings Pty Ltd from 25 January 2023'.[14]

   [13] Affidavit of Alan James Camp sworn 11 July 2023, JL2, page 11.

   [14] Affidavit of Alan James Camp sworn 11 July 2023, JL3, page 12.

C.     The Registrar's decision

1. The appeal filed by Kingsfield Holdings is against the programming directions made by a Registrar on 17 May 2023. The appeal is brought pursuant to O 60A RSC. An appeal under this provision is by way of a new hearing of the matter that was before the Registrar: O 60A r 6 RSC. The appeal is a hearing de novo in the sense that:

   … the powers of the court on appeal are exercisable not only where the appellant can demonstrate that, having regard to all the evidence now before the court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error. On an appeal from a registrar the court may exercise its powers regardless of error.[15]

   [15] CVW Group Holdings Pty Ltd v Addison [2011] WASC 267 [17] (Le Miere J). See also Priority Networking Pty Ltd v Peterson [2018] WASC 36 [27] (Le Miere J).

2. The catalyst for the programming directions made by the Registrar was a concern, raised with the parties by the court, as to whether Kingsfield Holdings was able to be represented by Mr Lee in his capacity as a corporate legal practitioner employed by Kingsfield Holdings itself. On 17 May 2023, an email communication was sent by the Registrar's associate to the parties which drew their attention to O 4 r 3(2) RSC and the authorities referred to in the associated commentary within the Red Book.[16] 

   [16] Gething M, Curwood M and Joseph R, Civil Procedure: Western Australia (vol 1 at Service 192).

3. The email from the Registrar's associate indicated the matter would be determined at the next case management hearing (which was scheduled for 29 May 2023) and allowed the parties to file short written submissions and affidavits ahead of the hearing for that purpose.  The email communication noted that any material sought to be filed on behalf of Kingsfield Holdings would be received provisionally pending determination of the issue of representation.  In the circumstances, the receipt of such material on a provisional basis is a relatively orthodox approach.

4. Before the representation issue could be determined by the Registrar, a notice of appeal was filed by Kingsfield Holdings.[17]  The essence of the challenge, as set out in the notice of appeal, was against the directions made by the Registrar for the determination of the representation issue, rather than the substantive issue itself. 

   [17] Notice of appeal dated 22 May 2023.

5. The appeal came on for hearing before me on 27 July 2023.  At the outset of the appeal, rather than engage in an arid debate as to the nature and adequacy of the programming directions, I raised with the parties whether there was agreement that the substantive representation issue could be determined on the appeal, a course of action which had been suggested in the defendant's submissions.[18]  Both parties were in express agreement that this was an efficient course to adopt.[19]  With that consent, I accordingly consider that I am properly seized with the jurisdiction to determine the substantive representation issue which was raised with the parties through the email from the Registrar's associate.

   [18] Defendant's submissions, [2].

   [19] ts 52 ‑ 54.

D.     Relevant legislative provisions

1. Order 4 r 3 RSC follows the wording of the Rules of the Supreme Court 1965 (Eng). Order 4 r 3 states:

   Individual may act in person or by solicitor; body corporate must act by solicitor

   (1)Subject to subrule (2) and to Order 18 rule 12, Order 18A rule 2 and Order 70 rule 2, any person (whether or not the person sues as a trustee or personal representative or in any other representative capacity) may begin and carry on proceedings in the Supreme Court by a solicitor or in person.

   (2)Except as expressly provided by or under any Act a body corporate may not begin or carry on any such proceedings otherwise than by a solicitor.

2. Order 12 r 1 RSC states:

   Who may enter appearance

   (1)Subject to subrule (2) and to Order 70 rule 2, a defendant to an action may (whether or not he is sued as a trustee or personal representative or in any other representative capacity) enter an appearance in the action and defend it by a legal practitioner or in person.

   (2)Except as expressly provided by any Act, a defendant to such an action which is a body corporate may not enter an appearance in the action or defend it otherwise than by a legal practitioner.

3. On its face, the scope of O 12 r 1(2) RSC is confined to the representation of bodies corporate in their capacity as defendants. The provision is directed to the manner in which an appearance may be lodged, and how proceedings may thereafter be defended. The provision refers to defendant bodies corporate not entering an appearance in the action or defending it, otherwise than by a legal practitioner. The notion of defending an action has been seen as extending to include the taking of any step in the proceedings or carrying on the action, when this provision is construed consistently with O 4 r 3(2) RSC.[20] For my part, I am not certain O 12 r 1(2) RSC needs to be so construed and I would prefer the view that the two provisions operate according to their terms, within their own fields of operation. However, this issue does not require resolution in the context of the current appeal.

   [20] Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd [47] (Hasluck J).

4. I referred at the outset of these reasons to the passage of the Application Act in 2022.  In addition to the legislative changes already mentioned, it is pertinent to note that the Application Act introduced amendments to the Interpretation Act 1984 (WA) (Interpretation Act). By s 361 of the Application Act, the following definitions were inserted into s 5 of the Interpretation Act:

   lawyer means an Australian lawyer as defined in the Legal Profession Uniform Law (WA) section 6(1);

   legal practitioner means an Australian legal practitioner as defined in the Legal Profession Uniform Law (WA) section 6(1);

1. These definitions have application to the interpretation of the rules of this court.

2. Tracing these definitions through to the Uniform Law, one finds the term 'Australian lawyer' is defined to mean a 'person admitted to the Australian legal profession in this jurisdiction or any other jurisdiction' (s 6(1) Uniform Law) and the term 'Australian legal practitioner' is defined to mean 'an Australian lawyer who holds a current Australian practising certificate' (s 6(1) Uniform Law). 

3. I should also note, at this point, that the Uniform Law defines the term 'corporate legal practitioner' to mean 'an Australian legal practitioner who engages in legal practice only in the capacity of an in‑house lawyer for his or her employer or a related entity, but does not include a government legal practitioner'.

E.     Contentions on the appeal

Kingsfield Holdings' position

1. Kingsfield Holdings filed an outline of submissions dated 12 July 2023, in which Mr Lee identified a number of legislative provisions which were said to support his position. 

2. Mr Lee's ultimate contention, as expressed in his submissions, was that he was entitled to represent the first plaintiff given the relevant provisions of the Uniform Law and the RSC, as amended. Mr Lee placed reliance on s 3, s 5 and s 8 of the Interpretation Act and a range of definitions in the Uniform Law. Mr Lee submitted that, pursuant to the provisions of the Uniform Law, he can properly be described as a legal practitioner and a solicitor, and he submitted that the authorities referred to in the Red Book in fact support his position on this appeal.

3. Mr Lee also drew the court's attention to a matrix which is published by the Law Society of NSW concerning the activities which can be undertaken by various types of legal practitioners.[21]  On its face, the matrix indicates that a corporate legal practitioner such as Mr Lee can act as a solicitor on the record.  The sole references within the matrix in support of this proposition are said to be the definition of 'corporate legal practitioner' in s 6(1) of the Uniform Law and the terms of s 47 of the Uniform Law.  For my part, I cannot discern how those particular statutory provisions support that proposition.  In any event, as I have already noted, the UCPRs which apply in NSW allow for dispensation to be granted in respect of the representation requirement, and so the position in NSW does not wholly translate to this State.  

   [21] Affidavit of Alan James Camp sworn 11 July 2023, JL16, pages 35 - 42.

4. Within his written submissions and during his oral address, Mr Lee raised a number of concerns as to procedural unfairness.  These concerns were driven by Mr Lee's dissatisfaction with the programming directions made by the Registrar.  These concerns are not relevant or determinative on this appeal.[22]  For the avoidance of doubt, I should observe that I do not accept Kingsfield Holdings was denied procedural fairness below.  In any event, and importantly, Kingsfield Holdings has now had more than an ample opportunity to present its submissions on the representation issue before me. 

   [22] ts 87.

5. Mr Lee sought to agitate on this appeal an additional question, namely whether Mr Popperwell and his firm Popperwell & Co were legitimately able to represent the defendant in this action.  By way of context to this issue, I observe that the defendant is a body corporate and Popperwell & Co is an incorporated legal practice, and Mr Lee submitted that such a practice could not represent a body corporate.  The defendant opposed this issue being raised on the appeal.  

6. I allowed Kingsfield Holdings the opportunity to file additional submissions on the above issue, following the hearing of the appeal.  Those submissions were received from Mr Lee on 1 August 2023.  However, although I permitted those submissions to be filed in fairness to Mr Lee, I made it clear at the appeal hearing that I was not at that point persuaded that I was properly seized of that issue.[23]  Having reviewed Mr Lee's further submissions, I am of the view that this issue is extraneous to the present appeal and not capable of being addressed in these proceedings.  I take this view because the controversy before the Registrar was confined to the entitlement of Mr Lee to represent the first plaintiff in this action as a corporate legal practitioner.  The Registrar did not identify any issue as to the entitlement of the defendant to be represented by Popperwell & Co.  In the absence of consent from all parties, it is not open to Kingsfield Holdings to introduce this further issue merely through the notice of appeal or by way of submissions on the appeal.

Defendant's position

[23] ts 90 - 91.

1. The defendant placed emphasis on the word 'by' in O 4 r 3(2) RSC and submitted that Kingsfield Holdings is not represented in this proceeding by Mr Lee, rather it is simply seeking to represent itself.

2. Further, the defendant drew attention to the policy underlying the prohibition of a body corporate carrying on proceedings otherwise than by a solicitor.  The defendant submitted that the possibility of a conflict looms large in the current litigation.

F.     Disposition

Construction of O 4 r 3(2) RSC

1. The first step in the analysis of the issue raised by this appeal is to construe the terms of O 4 r 3(2) RSC (and, relatedly, O 12 r 1(2) RSC). I have not identified any authoritative judicial decisions which directly address the construction of these rules in the sense relevant to this appeal, and no authorities were cited by either party to this effect in their submissions. I therefore propose to address the construction issue by reference to the text, context and purpose of the provisions.

2. First, turning to the text of the rules, I note the full terms of both O 4 r 3(2) RSC and O 12 r 1(2) RSC have been extracted above. As with O 4 r 3(2) RSC, the language employed in O 12 r 1(2) RSC similarly precludes steps being taken by a body corporate in proceedings otherwise than 'by' a legal practitioner.  

3. There are three components of O 4 r 3(2) RSC and O 12 r 1(2) RSC which require examination. First, there is the activity which is described as being undertaken.  Second, there is the particular actor who undertakes that activity.  Finally, there is the prepositional term 'by'.

4. The relevant activity is the beginning of legal proceedings or the carrying on of legal proceedings (in O 4 r 3(2) RSC), and the entering of an appearance or the defending of the legal proceedings (in O 12 r 1(2) RSC). These are not simply physical tasks.  These are activities which form part of the process of the administration of justice and in respect of which only certain persons are authorised to engage (leaving to one side natural persons who represent themselves in litigation and who are permitted to undertake these tasks). 

5. In both provisions to which I have referred, the focus is placed upon the particular actor who is undertaking the activity ('a solicitor' or 'a legal practitioner').  The use of the word 'by' connotes that the steps in question are being carried on through the particular actor.  The meaning of the preposition 'by' is to be derived not by reference to authority but by reference to the text and the context of the provision in which it appears.[24]  In this context, it is the solicitor or the legal practitioner who must be the person whom, or the entity which, is taking responsibility for the activity in question (such as the beginning or carrying on of the legal proceedings, including taking steps within the legal proceedings).  The focus is not merely upon the person whom, or entity which, is physically undertaking the activity.

   [24] See, by way of analogy in the contractual context, Tanning Research Laboratories Inc v O'Brien [1990] HCA 8; 169 CLR 332, 342 (Brennan and Dawson JJ, Toohey J agreeing); and Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited [2015] HCA 37; (2015) 256 CLR 104 [96] (Kiefel and Keane JJ).

6. Second, it is appropriate to have regard to the purpose of the provisions by reference to the evident policy considerations and rationales which underlie the representation requirement in these provisions.  Some of these policy considerations are driven by the concerns which arise when directors or other officers of a company seek to represent the interests of the company in legal proceedings.  Other policy considerations are driven by concerns arising where non‑legally trained persons represent the interests of a company and the impact this has on the administration of justice and the protection of parties in the litigation, as well as protection of the company's shareholders and creditors.  These policy considerations should of course not be used to superimpose on the language of the rules additional criteria where none exist.

7. The foregoing policy matters justify the approach, evident in O 4 r 3(2) RSC, whereby companies are not, at least as of right, able to be represented on the record in legal proceedings by a director or other officer of the entity. This reflects the separation which arises upon incorporation between the legal personality of the company and the legal personality of the members and office holders of the company. Having chosen to incorporate, these persons in effect forego the right to represent the company in legal proceedings. Viscount Simon LC in Tritonia Limited v Equity and Law Assurance Society [1943] 1 AC 584 explained the issue:

   In the case of a corporation, inasmuch as the artificial entity cannot attend and argue personally, the right of audience is necessarily limited to counsel instructed on the corporation's behalf.[25]

   [25] Tritonia Limited v Equity and Law Assurance Society [1943] 1 AC 584, 586.

8. The policy considerations which underpin the representation requirement include the need to ensure that persons who represent a company have appropriate authority to act on its behalf, and the need to avoid the possibility of conflicts between the interests of the company and the interests of representatives of the company. 

9. As noted above, at least in part, the requirement that a body corporate must be represented by a solicitor in legal proceedings is also intended to ensure that unqualified lay persons do not undertake this responsibility.  Broader policy considerations arise when examining the role played by non‑lawyers in this regard, relative to the assumed performance of the duties of candour and honesty imposed upon members of the legal profession.  Acting President Mahoney (as his Honour then was) outlined some of these considerations in an unreported decision of the NSW Court of Appeal, Scotts Head Developments Pty Ltd v Pallisar Pty Ltd [1994] NSWCA 281:

   The rule of practice which the Court has adopted whereby appearance is limited to persons admitted to practise before the Court is not based on technicalities.  It has long been regarded as based on considerations central to the proper administration of justice and the protection of the parties in the litigation.  

   First, the Court has emphasised the importance, for the administration of justice, of the fact that those permitted to appear before it owe a responsibility to the Court to ensure that the Court is properly informed and not misled...  

   Second, the Court has regard to the possibility of unqualified or untrained advocates interfering with the course of a proceeding before the Court and causing loss to the parties involved.  Reference was made to considerations of this kind in Hubbard Association of Scientologists International v Anderson and Anor [1972] VR 340 and in Abse and Ors v Smith and Ors [1986] QB 536. Experience has shown that a proceeding conducted by a person unskilled in advocacy tends to last longer and to cost more. In determining whether to allow such an advocate to appear, the Court must have regard not merely to the position of the party for whom he seeks to appear, but also to that of the other party. The interest of the defendant in having the proceeding dealt with without unnecessary delay and cost is one which, in my opinion, is to be borne in mind.

   Third, there remains the public interest in the effective, efficient and timeous disposal of litigation.  The administration of justice requires that full assistance be available to the Court in determining the issues of fact and law which come before it.  The isolation of issues and the presentation of the consideration which support one answer rather than another are things best done by a person experienced in such matters...

10. I accept that we are not presently dealing with an unqualified person seeking to represent a body corporate.  Mr Lee holds a practising certificate.  Nonetheless, the points outlined above shed light on the applicable policy drivers. 

11. Acting President Mahoney went on to specifically deal with the circumstance in which the party to litigation is a limited company and a person seeking to appear for the company is an officer and/or a shareholder in the company.  His Honour noted that, in cases of that kind, two questions were apt to arise:

    … whether the person seeking to appear has been validly authorised by the company to do so; and whether (if he has) he should be allowed to appear.  Such questions were considered by this Court in Bay Marine Pty Ltd v Clayton Country Properties Pty Ltd (1986) 8 NSWLR 104.

    Not infrequently, the person who seeks to appear for the company does not have the full authority from the company to do so.  Where a company is involved in litigation it is, of course, apt to incur liabilities, for costs and otherwise, if it actively pursues the litigation.  If such liabilities are incurred, they may affect not merely the shareholders of the company but those to whom it has obligations, as creditors or otherwise.  The fact that a person is, eg, a shareholder of a company or an officer of it does not, as such, warrant the person causing the company to incur liabilities which are to be borne by others.  If a company validly, in accordance with its constitution, authorises a person to appear for it, this objection does not exist and the right to appear will then depend ordinarily upon the general considerations to which I have referred.

12. These important policy considerations support an approach to the construction and the application of O 4 r 3(2) RSC and also O 12 r 1(2) RSC which favours substance over form, and which recognises that the requirement is no mere technicality. The policy considerations fortify me in the view that the use of the term 'by' in these provisions carries the meaning to which I have attached as set out at [39] to [41] above. 

Application of O 4 r 3(2) RSC

1. I turn now to consider the application of the representation requirement to the present circumstances.  There are two preliminary points to make in this regard.

2. First, there is no power to dispense with the requirements imposed by O 4 r 3 RSC.[26]  It follows from this that the requirement that no steps be taken in proceedings in this court on behalf of a body corporate other than by a solicitor cannot be waived, or remedied by the exercise of inherent power.[27]

   [26] See footnote 1 above. 

   [27] Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd [44], [47] (Hasluck J); Prow Pty Ltd v Commissioner of Police [18] (Hall J); and Hume v Goldblaze Nominees Pty Ltd as trustee for the Goldblaze Unit Trust [15] (Murphy and Mitchell JJA).

3. Second, there are no statutory provisions which establish or create an exception to the operation of O 4 r 3 RSC. The first plaintiff has placed reliance on a number of legislative provisions to support its argument, but in truth none of those provisions directly address the right of a corporate legal practitioner, such as Mr Lee, to represent his or her employer in legal proceedings. Although various legislative changes were introduced in 2022 at the time of the enactment of the Uniform Law, no substantive changes were made to the terms of O 4 r 3 RSC or O 12 r 1 RSC.

4. Having regard to the proper construction of O 4 r 3(2) RSC, as outlined at [37] to [48] above, the core question on this appeal is whether it is permissible for Kingsfield Holdings to be represented in the manner disclosed in the notice of change of representation dated 20 April 2023. In my view, it is not. The current arrangement, in which the first plaintiff Kingsfield Holdings is being represented through Mr Lee, falls foul of O 4 r 3(2) RSC in that the proceedings are being carried on otherwise than by a solicitor. The action is presently being conducted 'by' Kingsfield Holdings, and not 'by' a solicitor.  I reach this conclusion for the following reasons:

   (a)First, as a matter of fact, Mr Lee's role with Kingsfield Holdings is much more than merely a solicitor engaged by that entity to undertake legal work on its behalf.  Until as recently as October 2022, Mr Lee was the sole director, sole company secretary and sole shareholder of this company.  Presently, Mr Lee is the sole employee and sole in‑house counsel of Kingsfield Holdings.  Mr Lee is also a plaintiff to the present action in his personal capacity.  Further, the proceedings which are being agitated by Kingsfield Holdings relate to the conduct of Mr Lee in engaging and instructing the defendant law firm, such that Mr Lee is effectively acting as both the client instructor and the solicitor.  It would therefore be naive to characterise Mr Lee's relationship with Kingsfield Holdings as merely one of employee/employer (although I accept that his relationship with Kingsfield Holdings at least includes the relationship of employee/employer). 

   (b)Second, the matters referred to in the preceding paragraph tend to support the view that, when Mr Lee is acting for Kingsfield Holdings, Mr Lee is not acting independently of that entity, as an arms' length employed solicitor.

   (c)Third, and allied to the second point, as an employee of Kingsfield Holdings, Mr Lee acts only for and on behalf of that entity in performing any functions related to this litigation, and he does not relevantly act in any personal or independent sense (other than of course when he represents his own interests as the second plaintiff in this action).

   (d)Fourth, Mr Lee's entitlement to practise is limited in that he is authorised to practise only as an employee of a law practice, which includes acting as a corporate legal practitioner, and he is precluded from acting as a legal practitioner on his own account.

   (e)Fifth, an approach to the application of O 4 r 3(2) RSC which would permit an individual in‑house lawyer to conduct proceedings, on the record, for his or her employer company, where that lawyer is so closely associated with the employer company, is tantamount to the solicitor representing himself or herself. Relatively recently, a plurality of the High Court described this situation as undesirable. In Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; (2009) 269 CLR 333 [19] (Kiefel CJ, Bell, Keane and Gordon JJ), the High Court examined (and ultimately rejected) the anomalous Chorley exception, and stated that:

   Importantly, the view that solicitors should be encouraged to act for themselves is contrary to the modern orthodoxy that it is undesirable, as a matter of professional ethics, for a solicitor to act for himself or herself in litigation.

   (f)Sixth, given the combination of the foregoing matters, in particular the relationship of employee/employer between Mr Lee and Kingsfield Holdings and also the close association between them, it is Kingsfield Holdings which in substance is the entity responsible for the activity or steps being physically undertaken by Mr Lee in carrying out these proceedings.

5. It is of course not in dispute that Mr Lee is an 'Australian legal practitioner' within the meaning of the Uniform Law, and a 'legal practitioner' as that term is defined in the Interpretation Act. But these conclusions do not answer the question which was raised by the Registrar, and which is the agreed subject of the present appeal. That question arises from the operation of O 4 r 3(2) RSC. It requires that attention be directed to the effect of that provision.

1. When properly understood, in the context of the policy considerations which underpin that provision, I cannot accept that a corporate legal practitioner who is employed by a body corporate as its sole employee and in-house counsel, with such a close association, and who is precluded from practising on his own account, is able to carry on legal proceedings in this court, on the record, for that body corporate. 

2. The conclusion that I have reached is consistent with the limitations on Mr Lee's right to practise as a lawyer, which is only to engage in legal practice as an employee of a law practice (and which includes an entitlement to practise as a corporate legal practitioner), but does not permit Mr Lee to practise on his own account.

3. Thus, properly understood, the person on the record so to speak is not Mr Lee, but rather is Kingsfield Holdings.  In the circumstances, the appropriate order to reflect the above reasons is that the notice of change of representation (Folio 50) should be struck out.

G.     Orders

1. The appropriate disposition of this appeal is as follows and I will make orders accordingly:

   1.The notice of change of representation dated 20 April 2023, filed in respect of the first plaintiff, be struck out.

   2.The notice of appeal is otherwise dismissed.

   3.The first plaintiff is to pay the defendant's costs of the appeal, to be fixed in the sum of $2,277 to be paid within 14 days.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

SAO

Associate to the Honourable Justice Lundberg

11 AUGUST 2023