Velcrete Pty Ltd (Receiver and Manager Appointed) v Melsom

[1999] WASCA 143

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE FULL COURT (WA)

CITATION:   VELCRETE PTY LTD (RECEIVER AND MANAGER APPOINTED) & ANOR -v- MELSOM & ANOR [1999] WASCA 143

CORAM:   MALCOLM CJ

IPP J
PARKER J

HEARD:   16 AUGUST 1999

DELIVERED          :   16 AUGUST 1999

FILE NO/S:   FUL 19 of 1999

BETWEEN:   VELCRETE PTY LTD (RECEIVER AND MANAGER APPOINTED)

First Appellant (First Plaintiff)

IVAN JOHN KENDLE
Second Appellant (Second Plaintiff)

AND

PETER MICHAEL MELSOM
First Respondent (First Defendant)

STANLEY FREDERIC ROBSON
Second Respondent (Second Defendant)

Catchwords:

Application for leave to appeal and leave to represent a company - Not a practitioner - No prospect of success of appeal

Legislation:

Nil

Result:

Applications dismissed

Representation:

Counsel:

First Appellant (First Plaintiff)                 :   Ivan John Kendle

Second Appellant (Second Plaintiff)         :   In person

First Respondent (First Defendant)          :   Mr K L Christensen

Second Respondent (Second Defendant)   :   Mr K L Christensen

Solicitors:

First Appellant (First Plaintiff)                 :   Ivan John Kendle

Second Appellant (Second Plaintiff)         :   In person

First Respondent (First Defendant)          :   Tottle Christensen

Second Respondent (Second Defendant)   :   Tottle Christensen

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

Nil

Case(s) also cited:

Nil

1. MALCOLM CJ:  Although the applicant was present this morning, he was not present when his application was called on.  In my opinion, having regard to the fact that the applicant himself says in a facsimile to this Court received during this afternoon's sittings that, "in any event I have no further submissions", and he would only be offering some evidence concerning his difficulties with a solicitor, which are apparent from the correspondence - namely, difficulties in obtaining an opinion - it would seem to me that there being nothing further on the materials and nothing to have been submitted in support of the application, the appropriate course to take is to dismiss his application.

2. The application is one which, when it was before this Court on 10 March 1999, was regarded as at best somewhat tenuous.  While the applicant was seeking leave to appeal from a decision made on 29 January 1999, as it turned out in the course of argument on that occasion, he was in reality seeking leave to appeal from an order made by Master Sanderson on 29 November 1998.

3. The general principle is that a corporation which is a party to litigation requires to be represented by a legal practitioner.  In this case, both Velcrete Pty Ltd and the applicant Mr Kendle are parties before the Court.  He seeks to represent the company.  There is also the requirement that where two parties appear in the same interest, they are required to be represented by the same practitioner.

4. The preliminary view which I formed in relation to his application on 10 March 1999 was that there was no prospect of success in the proceedings and that it would be inappropriate for the applicant to be on the record as representing both parties for the purposes of the service of documents and the like.  Nothing which has happened since indicates any greater chance of success.  On the contrary, the position would seem to be otherwise.

5. Mr Kendle was present in Court this morning and was aware that this matter would be heard at 2.15pm.  He did not communicate to any officer of the Court that this was inconvenient to him.  His first communication was by fax which has been received in the Court this afternoon.

6. Given, as I say, that in any event he had no further submissions to make and that he only wished to explain some difficulty which he had had in obtaining an opinion from a solicitor, there seems no reason why his application should not now be dismissed.  That, I think, would be the appropriate course to adopt.

1. IPP J:  I agree and have nothing further to add to what his Honour the Chief Justice has said.

2. PARKER J:  I agree.  I would only note that the formal listing was for today.  I noticed that Mr Kendle was here when the luncheon break was reached, his matter not having been heard, and it was then indicated that the Court would resume its hearing at 2.15pm.  It was not originally listed to be heard at 2.15pm but it is clear from the course of the day that it was to be heard this afternoon.  Otherwise I agree, with respect, with what has been said.

3. MALCOLM CJ:  In respect to the point that has been taken by Parker J, it is of course the fact that this matter was number 6 in the list, listed not before 11.30am.  However, it must have been plain to Mr Kendle that the matter would not be heard until 2.15pm or sometime later in the afternoon.  That this was apparent to Mr Kendle is made plain by his fax which is addressed to:

   "Attention their Honours sitting in the Full Court at 2.15pm on Monday, 16 August 1999".