Vintage Marine Art Pty Ltd v Henderson

[2021] NSWSC 48

Supreme Court

New South Wales

Medium Neutral Citation:

Vintage Marine Art Pty Ltd v Henderson [2021] NSWSC 48

Hearing dates:

22 June 2020

Decision date:

15 February 2021

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

In relation to the defendants’ notice of motion filed on 28 May 2020, I make the following orders:

(1) Pursuant to r 7.1 of the Uniform Civil Procedure Rules 2005 (NSW), the plaintiff is to retain a solicitor holding an unrestricted practising certificate to appear for it in these proceedings.

(2) The proceedings are stayed pending compliance with order (1).

(3) If a solicitor holding an unrestricted practising certificate has not filed a notice of appearance for the plaintiff by Monday 15 March 2021, then as of that date:

a) the proceedings are dismissed;

b) the plaintiff is to pay the defendants’ costs of the proceedings; and

c) the sum of $10,000 paid into court by way of security for costs, and any interest thereon, is to be released to the solicitor for the defendants forthwith.

(4) The plaintiff to pay the defendants’ costs on the defendants’ notice of motion.

In relation to the plaintiff’s notice of motion filed on 10 June 2020, I make the following order:

(5) The plaintiff’s notice of motion filed on 10 June 2020 is dismissed, with costs.

Catchwords:

CIVIL PROCEDURE – proceedings carried on by corporation – necessity for solicitor to act – subpoena – application to set side

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Uniform Civil Procedure Rules 2005 (NSW), r 7

Category:

Principal judgment

Parties:

Vintage Marine Art Pty Ltd (Plaintiff)
Robert Henderson (First Defendant)
Douglas Cremer (Second Defendant)

Representation:

Counsel:
G Edwards (as Director of the Plaintiff) (self-represented)
M Pesman SC; C Alexander (Defendants)

Solicitors:
McLaughlin & Riordan (Defendants)

File Number(s):

2014/344104

Judgment

1. HIS HONOUR: This is the hearing of two notices of motion filed respectively by the defendants on 28 May 2020 and by the plaintiff on 10 June 2020. The defendants also called upon a subpoena to produce certain documents filed 12 June 2020 that it said had been served on the plaintiff’s representative. The call was resisted by the plaintiff and is dealt with at the conclusion of this judgment.

2. The dispute between the parties concerns an alleged assignment of an interest in a licence agreement and whether the defendants had misrepresented their interest in the product which was the subject of the licence agreement. Both notices of motion seek to affect the manner in which the proceedings are being conducted by the parties based on the parties’ past conduct and, therefore, it is necessary to refer to the court history of the matter.

The relevant history of the dispute

3. On 21 November 2008, the defendants entered into a licence agreement with Vintage Marine Art Ltd (“VMA”), which was a company incorporated in the United Kingdom (“the Licence Agreement”). The recitals of the Licence Agreement relevantly include the following:

“WHEREAS [the first defendant] is the owner of the collection of approximately 2000 images, including original photographs, posters, and brochures, relating to P&O Cruises (hereinafter referred [to as] the ‘P&O images’)

WHEREAS, VMA desires to license from [the first defendant], the exclusive right to sell products bearing the P&O images owned by [the first defendant].

AND WHEREAS, VMA shall not sell, transfer, encumbered or assign the exclusive right to any other person or entity without the written consent of [the first defendant].”

4. The directors of VMA at that time were Gina Edwards (then Gina Dombosch), Danielle Demarest, William Ferguson and Elizabeth Ferguson.

5. On 31 March 2010, the parties executed an Addendum to the Licence Agreement (“the Addendum”), whereby the Licence Agreement was extended from 10 to 50 years, it was expressed to be binding upon the first defendant’s successors, heirs and assigns and the first defendant reserved “the right to assign all or a portion of his licensing payments upon written notice to VMA”. A further clause concerned the creation of a right to the first defendant to “loan all or part of the P&O images to any museum, library or other institution for exhibition, display, study or storage”, subject to certain conditions.

6. The plaintiff asserted that on 3 April 2010, VMA assigned its rights and interests under the Licence Agreement to the plaintiff, which is a company that was incorporated in Australia on 2 January 2010 (“the Assignment”). At incorporation, its directors were Gina Edwards, Danielle Demarest, William Ferguson, Elizabeth Ferguson and the first defendant. An ASIC search of the plaintiff, tendered in an earlier hearing in this Court concerning costs security, disclosed that the first defendant ceased being a director of the plaintiff on 4 March 2011. VMA was dissolved on 31 October 2014, being the equivalent of deregistration in Australia.

7. On 21 November 2014, the plaintiff filed a statement of claim, seeking orders against the defendants for damages pursuant to s 82 of the Trade Practices Act 1974 (Cth) and s 68 of the Fair Trading Act 1987 (NSW); compensation pursuant to s 87 of the Trade Practices Act and s 72 of the Fair Trading Act; indemnity costs pursuant to cl 12 of the Licence Agreement or, in the alternative, costs on the ordinary basis; and an order for interest.

8. The plaintiff pleaded that in the Licence Agreement, the defendants had misrepresented that they were the owners of the P&O images, whereas “the intellectual property therein was owned (at least in part) by [Dubai Ports World] or the Peninsular and Oriental Steam Navigation Company”. The plaintiff pleaded it became aware of their ownership in a letter it received from them on or about 9 July 2010.

9. The plaintiff pleaded that the defendants had consented to the Assignment on 2 January 2010, so that the plaintiff became entitled to market and sell the P&O images on merchandise on the terms appearing in the Licence Agreement, from that date.

10. In the alternative, the plaintiff pleaded that from “in or about April 2010”, VMA assigned and otherwise transferred to the plaintiff all rights, title and interest that it held pursuant to the Licence Agreement.

11. In their defence which was filed on 17 July 2015, the defendants maintained, contrary to the plaintiff’s claims, that they were the owners of the P&O images and denied that they had consented to the Assignment. The defence sought a set off pursuant to the Licence Agreement for unpaid licence fees of $6,583.50, as of 30 July 2010.

12. Robert John McLaughlin, solicitor for the defendants, claims in two affidavits in support of the defendants’ notice of motion, dated 28 May 2020 and 11 June 2020 that were read at the hearing (“Mr McLaughlin’s affidavits”), that thereafter, the litigation has proceeded very slowly due to actions by Ms Edwards. The court history, as set out by him and in correspondence and other documents annexed to his affidavits, is as follows.

13. On 8 October 2015, Harrison AsJ ordered that the plaintiff provide security for the defendants’ costs in the sum of $10,000.

14. On 13 November 2015, the Court ordered that the plaintiff serve the lay evidence on which it proposed to rely by 19 February 2016. The plaintiff did not serve its lay evidence until 7 March 2017.

15. On 22 September 2017, the Court ordered that the plaintiff serve its expert evidence on or before 27 October 2017. The plaintiff’s expert evidence was served on 2 February 2018.

16. Court-ordered mediation occurred on 20 March 2018 and was unsuccessful in settling the matter.

17. On 8 June 2018, the plaintiff was ordered to serve any further affidavit evidence upon which it intended to rely by 21 June 2018. The defendants filed a notice of motion for further security for costs, which was set down for hearing on 10 August 2018. Following repeated adjournments at the request of the plaintiff, the defendants’ notice of motion was heard on 14 November 2018 by Rothman J, who ordered that the plaintiff pay into Court the further sum of $40,000 as security for costs. On 19 September 2019, the Court of Appeal upheld an appeal against Rothman J’s decision by the plaintiff.

18. At a directions hearing on 15 October 2019, Ms Edwards, who by that time was appearing for the plaintiff, advised that the plaintiff proposed to amend its statement of claim. The Court made orders as to service by the plaintiff of any proposed amended statement of claim and, if the defendants did not consent to such amendment, the plaintiff was ordered to file and serve a notice of motion seeking leave to amend by 7 February 2020. The matter was stood over to 14 February 2020.

19. On 9 February 2020, Ms Edwards served a copy of a notice of motion seeking leave to amend the statement of claim and a supporting affidavit sworn by her. The draft amended statement of claim that was annexed to Ms Edwards’ affidavit proposed that VMA would be joined as the second plaintiff, she would be joined personally as the third plaintiff and the defendants’ firm of solicitors, McLaughlin & Riordan, would be joined as the third defendant. This obliged McLaughlin & Riordan to cease to act for the defendants and pass the file to new solicitors, Benjamin Lawyers. A notice of change of solicitor was filed on 11 February 2020.

20. At a directions hearing on 14 February 2020, the Court made orders for the filing of affidavit evidence in support of the plaintiff’s notice of motion and set it down for hearing on 23 April 2020.

21. From about February 2020, in correspondence with the defendants’ solicitors and the Registrar, and in affidavits sworn by her, Ms Edwards raised three impediments to finalising her draft amended statement of claim. These were, firstly, that she was being treated for a serious illness the nature of which she declined to disclose and which she alleged was exacerbated by the behaviour of the defendants’ solicitors; secondly, the protracted process of reinstating VMA; and thirdly, her laptop computer, on which her essential files and documents were stored, had ceased to function and was in the George Street Apple store which was closed because of the pandemic with no known re-opening date.

22. On 24 February 2020, Ms Edwards wrote to the defendants advising that she wished to rely on a new proposed amended statement of claim, not yet served, and that she was “withdrawing [herself] as a proposed plaintiff [and] also McLaughlin & Riordan as a prospective defendant”. She stated that the only proposed amendment was:

“… to add my UK entity VMA Ltd. As I explained on 14 February, I am in the process of reinstating it with Companies House. Please let me know if you have any objection to this amendment.

Unfortunately, my personal laptop died this past weekend and is currently being repaired and/or data being recovered but I will send a revised proposed Amended Statement of Claim as soon as I am able. The causes of action will not change at all and the only addition will be to change ‘Plaintiff’ to ‘Plaintiffs’ as well as correcting a few other grammatical errors or missing information background information from the first Statement of Claim.”

23. On 9 March 2020, Benjamin Lawyers responded, indicating that they were instructed to object to the addition of VMA as second plaintiff. They also raised the issue of r 7.1 of the Uniform Civil Procedure Rules 2005 (NSW) (“the UCPR”). Ms Edwards replied to the effect that she had understood from discussions outside Court on 14 February 2020 that the defendants would not object to adding VMA. Ms Edwards continued:

“Both VMA entities will be represented by a solicitor shortly so I might suggest saving your clients the time and expense of drafting your motion and affidavit?”

24. Ms Edwards stated that she anticipated that she would prepare the revised statement of claim within a fortnight after she was “free from quarantine on March 23rd”.

25. On 16 March 2020, Benjamin Lawyers served affidavits by Mr Benjamin and another solicitor of the firm, Mr Khalil, contesting Ms Edwards’ version of the conversation outside Court on 14 February 2020 that they had agreed to her adding VMA as a party. Ms Edwards responded the same day by email, copying the Registrar, writing:

“I truly cannot believe the absolute lies you have put forward in this Affidavit. You know those words never came nor would come out of my mouth. You have made up that entire conversation. In addition you have now defamed me.

I intend to immediately file a complaint against you with the Law Society. This behaviour is beyond unprofessional. I am sickened you would go to such shameful lengths to further your clients position.”

26. At a directions hearing on 17 March 2020, the Court vacated the hearing date of 23 April 2020 and stood the matter over to 3 June 2020. Ms Edwards confirmed that she no longer intended to join the firm of McLaughlin & Riordan.

27. On 23 March 2020, Ms Edwards sent an email to the Registrar attaching “a medical certificate from [her] GP”. She advised the Registrar that she had been tested for COVID-19 on 18 March 2020 but that the “tests were not kept at the proper temperature for the required time and therefore contaminated” and that she would be required to redo the test during the week commencing 23 March 2020. The email was not copied to Benjamin Lawyers and the Registrar did not disclose the medical certificate to them, at the request of Ms Edwards.

28. The defendants filed a notice of change of solicitor on 6 April 2020, notifying that instructions were withdrawn from Benjamin Lawyers and that McLaughlin & Riordan were again instructed.

29. On 8 April 2020, McLaughlin & Riordan received an email from Ms Edwards’ husband, stating that his wife was in hospital “in critical condition” and that:

“I found a note on my wife’s laptop where she advised that her personal laptop with all her case files is at Apple being repaired and they have been closed for many weeks … She noted she said she ‘could not hire a solicitor and complete the pleadings until Apple reopened and her laptop was fixed and returned.’ That is direct from her file note.”

30. In an email to the Registrar dated 28 April 2020, copied to Benjamin Lawyers, Ms Edwards explained why she had not provided a draft amended statement of claim as follows:

“… the continuing problem is that Apple is still closed and my laptop still locked in the Genius Bar. All of my case materials as well as documents requested by Companies House to complete reinstatement of my UK entity which I seek to add as a Plaintiff are on that laptop as I mentioned during the 17 March hearing. I never thought it would be closed this long but I know we are in unprecedented times.

… I cannot draft the amended pleading, complete the reinstatement of my company nor retain a solicitor to assist until I have access to my personal laptop. My husband had to return my Allens work laptop for me so I have nothing apart from iPhone and iPad – neither have Word capabilities and so I can draft little more than emails right now …

My proposed way forward is that as soon as the government lifts the restrictions and the Apple stores reopen, I will immediately write to the Court and a timetable and new hearing date can be set. I estimate from the date of obtaining my laptop, I only require 3 weeks to complete the hiring of a solicitor, preparing the amended pleadings and notice of motion and provide the UK Companies House with the documents requested to reinstate the entity.”

31. On 11 May 2020, Ms Edwards wrote an email to the Registrar seeking a further adjournment. She stated that she had encountered difficulties having VMA reinstated because:

“… I believe this impending hearing date is the impetus for the harassment I have been experiencing.

The two factors which were discussed at the 17 March hearing are unfortunately still at issue: my health and my laptop locked in the Genius Bar at Apple. The George Street Apple store remains closed (although some locations are open) preventing access to my personal laptop which needs repair and/or data. I have now been told over the phone that Apple does not remove hard drives and restore data so I might need to send it elsewhere depending upon the results of the assessment. I will also still need to make an appointment once they open along with thousands of others whose devices have been locked in since March … Until the laptop is repaired and data restored, I cannot access my company’s files and documents needed to hire a solicitor, obtain advice on my amended pleading and necessary supporting evidence. I also need the data to complete the forms of reinstatement of the entity I seek to join as a party. A recent email from UK Companies House indicated that even once I complete the 130 pages of forms, there is a processing time of approximately 20-30 days to complete reinstatement. They have been operating at reduced capacity due to the shutdown.

…

Last week, I received aggressive emails from Mr McLaughlin every other day. There are three separate emails demanding information on my hospitalization. Someone even called the hospital multiple times asking for information about me but refused to provide their name. In March, my doctor provided a medical certificate that I was unable to work until 30 April, yet Mr McLaughlin who apparently found this insufficient for him, continued to send multiple emails to me throughout April. Despite my husband responding to one email in early April asking for a modicum of patience and understanding during a very difficult time, Mr McLaughlin completely ignored this and continued to ramp up the pressure.

This harassment follows Mr Khalil submitting a perjurious affidavit in advance of our 17 March hearing attempting to severely damage my credibility. I have hired a polygrapher and will attend as soon I am well enough. I will submit an affidavit to prove that Mr Khalil’s efforts - which also felt like an attempt to intimidate and harass me - were nothing more than a blatant act of perjury.

…

My husband has contacted the police and urged me to file a complaint and has also contacted the NSW Law Society. I have also been advised that for my own health and safety Mr McLaughlin should cease all communications with me and have another associate in his office do so if necessary. Because of steps taken, I will not be able to read any further communications from his email address.”

32. An attached one-sentence medical certificate by a general practitioner, dated 11 May 2020, stated:

“I have examined Gina Edwards who in my opinion is suffering from a medical condition and will be unfit for court from 11/05/2020 to 30/06/2020 inclusive.”

33. Mr McLaughlin stated that he went online to the Companies House website and observed that the reinstatement application form is about four pages in length.

34. The following day, 12 May 2020, the Registrar wrote to Ms Edwards, stating:

“Can you please provide the Court with a sworn affidavit setting out details of your medical condition, if that remains relevant, and also of the timeframe for recovery of your laptop from Apple. Please annexed all relevant records. Are you able to please provide this within 7 days?”

35. The same day, Ms Edwards replied, stating:

“I asked my husband to please contact Apple support today. He was told the following but was unable to get anything in writing from the representative he spoke with (although I presume this can be confirmed from anyone contacting Apple support) …”

36. Ms Edwards then listed five items of information, the first being: “They have no updated information on when the George Street store will re-open”.

37. Later the same afternoon, the Registrar responded by email, relevantly as follows:

“I will need to see this information in a sworn affidavit as previously requested. Please make arrangements for this to occur and please provide the Court with copies of any relevant records regarding your medical condition and the situation with Apple. The Court cannot consider any further adjournment of the matter without a sworn affidavit.

I confirm that this matter has now been listed for Direction on 21 May 2020. A Notice of Listing will be sent to you shortly.”

38. On 20 May 2020, Ms Edwards emailed the Registrar, copying Mr McLaughlin and attaching a scanned affidavit. In her email, she stated:

“I have a doctors appointment tomorrow which I would have to miss to call into this Directions Hearing. I need additional medication and would like to please attend. I respectfully request that I be excused from calling in as the doctor states I am simply unfit to participate and I cannot represent my company at this time due to my medical issues.”

39. In the affidavit attached to that email, in relation to her medical condition, Ms Edwards stated:

“I am currently suffering from breathing difficulties, extreme fatigue and weakness, situational depression, anxiety, panic attacks, severe digestive issues, disruptions to sleep and eating patterns. I am currently undergoing a variety of tests for all of the symptoms and issues and have begun some preliminary medication. I also note the sustained bullying and harassment I have experienced from the Defendant’s solicitor has caused me harm. For this reason, when I visited my doctor on 11 May, she provided the attached medical certificate marked ‘A’ advising I was unfit for court as exposure to the person(s) who have harassed me would cause unnecessary stress and exacerbation of my symptoms. I am terrified of suffering a debilitating panic attack at the upcoming Directions Hearing particularly having my private medical condition and information discussed in open court and do not feel I am adequately able to represent my company at the current time.”

40. Exhibit A is the same medical certificate, dated 11 May 2020, that was attached to Ms Edwards’ email of that date. In relation to her laptop, in her affidavit, she relevantly stated:

“In late February, my personal laptop suddenly would not turn on or respond to the power charge. I made an appointment online using my Apple ID and brought the laptop for analysis and repair ... Due to quarantine and self-isolation, I was unable to retrieve the laptop before the store closed in mid-March due to COVID-19. It was initially due to reopen by 30 March, however, the stay-at-home government order(s) were then issued and the store remain closed.

The George Street Apple store has remained closed and there is no indication of when it will reopen. Online screenshots from Apple’s website are marked ‘B’.

… I will supplement the exhibits to this Affidavit by providing the written analysis or assessment after the examination of the laptop. I had been tentatively told in February at the Genius Bar that it could likely be a failure of the mother board. I have since been advised that Apple does not restore data from the hard drive if the motherboard has indeed failed therefore the laptop must be sent off to third party to examine and attempt to restore the contents of the hard drive on an external hard drive.

I have contacted a company named OnTrack which indicated they can examine a hard drive and if possible, replicate a hard drive within 7-10 days. I will supplement the exhibits to this affidavit if this occurs with any report produced.”

41. Annexure B to the affidavit included a download titled “Apple Store reopening” which stated, “Apple Sydney has been closed since January 5 for renovations and will reopen at a later date”.

42. In relation to reinstating VMA, Ms Edwards reiterated:

“… I must complete over 130 pages of forms from 2012-present and pay a substantial penalty and back fees for my former Scottish director’s failure to comply with the regulations of Companies House. The information required for these forms is on my laptop. Companies House advised that the process for reinstatement can take between 20-30 days.

I also need access to the litigation files on my computer in order to hire a solicitor as the Defendants have consistently taken the position in the Court of Appeals [sic], in this Court and in correspondence with me that they will oppose any application for my company to proceed without a solicitor. Once my computer and data issues are resolved, I need to retain and instruct a solicitor and bring them up to speed on the matter so they may provide advice and draft the amended pleading and supporting evidence.”

43. On 1 June 2020, Ms Edwards wrote to the Registrar, copying Mr McLaughlin, attaching “the technician’s diagnosis regarding the failure of my laptop as I indicated in my last Affidavit I would supplement with this information once available”. Annexed to the email is an email dated Saturday 30 May 2020 at 11:22am from “Craig Peterson”, whose email address is at “macmedic.com.au”, to Ms Edwards. That email states:

“This message has been sent to you in relation to your current repair with Mosman.

Please find the attached job notes from your technician/customer manager at MacMedic. If you have any queries please call during business hours or respond to this email. Please ensure that if you email to approve a repair, if the amount requested is over $500, you will need to call through a deposit over the phone, and if multiple options have been provided, please specify exactly which option you wish to proceed with. Thank you!”

44. The note has a “Tech ID” number and states:

“*Confirmed Fault – computer does not turn on at all

*Found LED on power adapter does not light up

*Removed bottom case

*Found liquid damage to I/O cable and connector on Main Logic Board (MLB)

*Removed battery

*Found liquid residue on top side of the battery and liquid damage to the trackpad and IPD cable

*Tested MLB with KG 1/O board and cable-still does not turn on

*MLB, trackpad, IPD cable and I/O cable are liquid damaged-need to be replaced at a cost of $1256 ($977 to pay is to $279 paid already)

*New equivalent replacement MacBook Air 13” Retina with 256GB storage is $1599

*If customer wishes to go ahead with repair, we may require payment in full to be made before we can order the parts

*if customer does not want to go ahead, we can clone the internal drive to a new Toshiba 1TB USB 3.0 drive for $309 ($30 to pay as $279 paid already)”

45. On 3 June 2020, Mr McLaughlin forwarded an email to Ms Edwards in which he referred to various matters, including the laptop. He went on to refer to the various occasions upon which she had previously stated that she had deposited her laptop with the Genius Bar at the George Street Apple store on the weekend preceding Monday, 24 February 2020 and that it remained “locked in the Genius Bar” at that store. Mr McLaughlin stated:

“I confirm your advice to Registrar Jones this morning that you attended at the George Street Apple store last Friday and uplifted your computer. You advised Benjamin Lawyers by email on 24 February 2020 that your ‘laptop died this past weekend and is currently being repaired and/or data being recovered’. By email to this firm on 8 April 2020 your husband advised that your laptop had been left ‘at Apple’ and by email to the Registrar on 11 May 2020 you advised that your laptop was ‘locked in the Genius Bar’ at Apple’s George Street store. By email to the Registrar on 12 May 2020 you advised that your husband had contacted Apple support who had advised that ‘they have no updated information on when the George Street store will re-open’ and you advised that ‘many people such as myself are awaiting repair and assessment from devices left prior to the store closure’.

An employee of Apple advised me yesterday that her research into Apple’s records did not disclose the lodgement by you of your laptop at any Apple store. She also advised that the George Street Apple Store closed for business on 5 January 2020 and re-opened last Friday, 29 May 2020.”

46. In his affidavit evidence, Mr McLaughlin stated that there had been multiple changes in the plaintiff’s legal representation since the statement of claim was filed, at which time it instructed Slater & Gordon. On 28 July 2016, a notice of change of solicitor was filed by Hall & Wilcox, instructions having been withdrawn from Slater & Gordon. On 19 July 2018, Hall & Wilcox filed a notice of ceasing to act. On 20 September 2018, Mr McLaughlin was advised that a firm of solicitors named Legal Made Easy had been retained by the plaintiff. On 22 September 2018, Harrison AsJ was informed by that firm that they were no longer instructed by the plaintiff. Since that time, Ms Edwards has appeared at Court as the plaintiff’s representative, by virtue of being a director of it: r 7.1(2)(a) of the UCPR.

The defendants’ notice of motion

47. The defendants’ notice of motion seeks the following orders:

“1. Pursuant to r 7.1 of the UCPR, order that a solicitor holding an unrestricted practising certificate and who has been retained by the plaintiff file a notice of appearance for the plaintiff company within two months of Order.

2.   Order that the proceedings be stayed pending compliance with Order 1.

3.   In the event that no solicitor holding an unrestricted practising certificate files a notice of appearance in accordance with order 1, then:

a.   Order that the proceedings be dismissed;

b.   Order that the plaintiff pay the defendant’s costs of the proceedings; and

c.   order that the sum of $10,000 and any interest thereon paid into court by way of security for costs be released to the solicitor for the defendant’s forthwith.

4.   Such further or other orders as the court sees fit.

5.   Costs.”

48. Rule 7.1 of the UCPR relevantly provides:

“7.1   By whom proceedings may be commenced and carried on

(1)   A natural person may commence and carry on proceedings in any court, either by a solicitor acting on his or her behalf or in person.

(1A)   Despite subrule (1), but subject to subrule (5), the court may order that proceedings commenced by a natural person acting on behalf of another person pursuant to a power of attorney be carried on, on behalf of that other person, by a solicitor.

(2) A company within the meaning of the Corporations Act 2001 of the Commonwealth—

(a)   may commence and carry on proceedings in any court by a solicitor or by a director of the company, and

(b)   may commence and, unless the court orders otherwise, carry on proceedings in the Local Court by a duly authorised officer or employee of the company.

…”

49. In his affidavit sworn on 28 May 2020, Mr McLaughlin expressed the following nine concerns as to why the Court should require a solicitor to appear for the plaintiff and not permit Ms Edwards to have the conduct of the proceedings:

1. The proceedings are complex. The trial has a five-day estimate and will involve numerous issues of fact and law. Each party will be calling a forensic accountant, both of which are likely to be cross-examined.

2. Ms Edwards’ credit is “firmly in issue”. She is the primary witness for the plaintiff. Her affidavit in chief is 323 paragraphs long and comprises four folders of exhibits. Two of the plaintiff’s four shareholders (William Ferguson and Elizabeth Ferguson) have made affidavits in support of the defendants’ case and the other two shareholders (Ms Edwards and Ms Demarest) have made affidavits in support of the plaintiff.

3. A factual issue concerns the identity of the fabricator of an email produced by the plaintiff that purported to have been sent from the first defendant to Ms Edwards, dated 26 July 2010, which appears to evidence an awareness on his part of the Assignment. In the email, the first defendant asked Ms Edwards:

“Should the invoice be addressed to VMA in the UK, VMA Australia or Billy personally? I am a bit confused given what you explained earlier this year with the different entities, the contracts and the assignment to the AU corporation.”

4. This passage does not appear in a version of the email that was extracted from the hard drive of the first defendant’s computer, suggesting that the version produced by the plaintiff is a fabrication. A copy of an expert report to that effect was served on the plaintiff’s then solicitors on 18 May 2018. On 19 July 2018, Ms Edwards served an affidavit in which she stated, at para (7):

“I do not disagree that there has been a change to the original email, however, I deny that I altered this email in any way at any time.”

5. In his affidavit dated 28 May 2020, Mr McLaughlin stated, at para (66):

“The issue of who fabricated this email and when are issues for determination at trial.”

6. The defendants object to the plaintiff relying on the report of its forensic accountant on the basis that documents that it relies upon are unreliable and not admissible. The report annexes certain invoices that were purportedly addressed to Carnival Australia. The defendants submit that documents that have been produced to them by Carnival Australia pursuant to subpoena “cast doubt” about whether those invoices annexed to the expert report are genuine.

7. The defendants express concern about Ms Edwards’ conduct before the Court, alleging that on 25 September 2018, she sought to advise Harrison AsJ about communications that were made at the court-referred mediation, which had been directed pursuant to s 26 of the Civil Procedure Act 2005 (NSW) so that it was thus subject to confidentiality: s 30(4)(a) of that Act. In addition, in the appeal to the Court of Appeal of the costs order, she sought to take the Court to “without prejudice” communications.

8. Mr McLaughlin refers to Ms Edwards’ “conduct in correspondence” between the parties, in which she accused him of “harassing her in correspondence” and indicated that she had complained about him and solicitors from Benjamin Lawyers to the Law Society. Mr McLaughlin stated that he did not believe he had engaged in professional misconduct or unsatisfactory official conduct. He relies upon the passages from correspondence from Ms Edwards to him, Benjamin Lawyers and the Registrar in his affidavit material, that are said to illustrate Ms Edwards’ attitude and how the matter of the plaintiff’s intention to amend the statement of claim has not advanced, since it was first proposed in October 2019.

9. Mr McLaughlin suggests that the evidence discloses that Ms Edwards has not sought to advance the plaintiff’s motion, despite her stating in an email of 24 February 2020 that there was no further evidence to adduce and that the only substantive amendments were to add VMA, which was a deregistered company. Mr McLaughlin stated, at para (83):

“Despite numerous requests from the Court (for instance by email on 2 April and also 12 May 2020), Ms Edwards has been unable or unwilling to specify an amended timetable to progress the Plaintiff’s Motion.”

10. The change of solicitors occasioned by Ms Edwards’ intention to join McLaughlin & Riordan as a third defendant obliged them to incur a cost of $16,969.70 plus counsel’s fees during the period that they were engaged. The need for McLaughlin & Riordan to withdraw and then come back into the matter had been disruptive and has resulted in wasted costs to the defendants. Costs and disbursements since the date of commencement of the proceedings, at the time of Mr McLaughlin’s affidavit, were in excess of $224,000.

11. Finally, Mr McLaughlin refers to multiple requests for missing documents or documents not served in evidence to which there has been no response from Ms Edwards.

12. Perhaps the most significant document sought is the original of a photocopied document that has been produced by the plaintiff, titled “Assignment of Contract”, dated 3 April 2010. On its face, it is a deed of assignment of “all rights, title and interest” held by VMA to the plaintiff pursuant to the Licence Agreement and the Addendum. It is executed only by Ms Edwards (signing as “Gina Dombosch”) on behalf of VMA and the plaintiff.

13. Ms Edwards did not reply to requests made by correspondence for an inspection of the document or information as to its whereabouts. A Notice to Produce was formerly called upon in Court on 14 November 2018, but the document was not produced.

14. On 15 March 2018 and on 1, 21 and 31 May 2018, Mr McLaughlin’s firm wrote to the plaintiff’s then solicitor requesting electronic copies of certain exhibits that had been served as part of the plaintiff’s evidence in chief, as well as electronic and hard copies of evidence that was referred to in the plaintiff’s reply evidence but had not been served. Mr McLaughlin did not receive an acknowledgement or response. On 4 May 2020, Mr McLaughlin’s firm sent an email to Ms Edwards setting out the details of various documents that had been previously requested and not produced, seeking her response. The documents were not provided.

15. On 19 occasions, the plaintiff has been granted extensions of time by the Court to comply with existing orders.

16. By email to the Court dated 11 May 2020, Ms Edwards requested that Mr McLaughlin cease all communications with her. She stated that, “Because of steps taken, I will not be able to read any further communications from [Mr McLaughlin’s] email address”.

50. In his second affidavit, Mr McLaughlin stated that in a directions hearing on 3 June 2020 that was conducted by telephone before the Registrar, Ms Edwards informed the Court that she had not received the defendants’ motion or supporting affidavit because she had blocked Mr McLaughlin’s email address. The matter was adjourned to 12 June 2020 and the motion and supporting documents were re-sent to Ms Edwards from a different email address.

51. Mr McLaughlin stated that he endeavoured to resolve the defendants’ motion without a contested hearing. On 3 June 2020, Ms Edwards emailed his assistant stating that she did not object to orders (1)–(3) in the defendants’ notice of motion. Mr McLaughlin prepared draft consent orders and forwarded them to Ms Edwards by email the following day. On Tuesday 9 June 2020, his assistant received an email from Ms Edwards informing him: “I am filing an emergency motion to be heard soonest”. On 11 June 2020, Mr McLaughlin received an email from Ms Edwards attaching an unfiled notice of motion and affidavit dated 10 June 2020 (filed 11 June 2020). On 11 June 2020, he received a further email from her attaching “revised consent orders”. Ms Edwards had changed proposed order (2) to permit her fresh motion to proceed to hearing, despite an order that a solicitor appear for the plaintiff. Later the same day, Mr McLaughlin advised Ms Edwards by email that he could not sign the proposed orders as proposed order one was inconsistent with proposed order two.

The plaintiff’s notice of motion

52. Ms Edwards appeared for the plaintiff at the hearing, by leave. She stated that she has held a New South Wales solicitor practising certificate since January 2020 and that she intended to “[turn] it in shortly” because she was enrolled in the Bar admission course. The defendants did not oppose to her being granted leave to appear at the hearing as a director of the plaintiff.

53. The orders sought by the plaintiff in its notice of motion are as follows:

“ORDERS SOUGHT

Pursuant to Rule 42 as well as under 4, 5, 7, 19, 34 of the NSW Legal Profession Uniform Law Australian Solicitor’s Conduct Rules 2015 and Rule 33 and 34 of the Uniform Civil Procedure Rules:

(a)   that the Defendants solicitor be ordered to cease all bullying, harassment, humiliation and intimidation of the Plaintiff and its director and be ordered to conduct himself in accordance with the Rules cited above.

(b)   that the Defendants solicitors who submitted perjurious affidavits be held in contempt of Court and order of indemnity costs be entered against these solicitors;

(c)   that the Subpoena issued by the Defendants to Apple Pty Ltd be quashed/set aside on the grounds of no legitimate forensic purpose and constitutes a fishing expedition against the Plaintiff’s director personally and not relate in any way to the issues of this case;

(d)   that the Notice to Produce issued by the Defendants under Rule 34 to the Plaintiff be set aside as it purports to request documents from a non-party, the Plaintiff’s director when the Defendants’ solicitor is well aware that the issues related to the director’s laptop and to reinstate the UK entity are within the purview of the director as an individual not in any way related to the Plaintiff entity; the Notice to Produce was issued for no other reason than to harass the Plaintiff’s director.

(e)   Costs of this Motion.”

54. At the hearing, Ms Edwards abandoned prayers (a), (b) and (c). However, it is necessary to nevertheless refer to the material that she tendered in affidavit form as it responds to the evidence adduced by the defendants in support of their motion.

55. The plaintiff relied upon two affidavits sworn by Ms Edwards as a director of the plaintiff, filed 11 June 2020 and 19 June 2020. I note there are two versions of the first affidavit, one version having hand corrections to the annexure letters. Neither version is paginated.

56. In her first affidavit, Ms Edwards gave an account of the conversation that she alleges she had with Mr Benjamin and Mr Kahlil on 14 February 2020, outside the Court of the Registrar’s hearing, which included the following passage:

“I mentioned that it could be that I remove both myself from the proposed amended pleading and the firm that would leave only my UK entity. His reply was either ‘we would have no objection to that’ or ‘then we would not object to that.’”

57. Annexed to Ms Edwards’ affidavit are affidavits by Mr Benjamin and Mr Kahlil, both dated 16 March 2020. In his affidavit, Mr Benjamin denied that he had said words to the effect that the clients would not object or would consent to the joining of the reinstated company. Mr Kahlil said:

“Outside the courtroom, I stood with Mr Benjamin whilst he and Ms Edwards spoke concerning an appropriate form of consent orders. I recall Ms Edwards and Mr Benjamin discussing reinstatement of the dissolved UK company, Vintage Marine Art Ltd but do not recall the specifics of that conversation. However had Mr Benjamin ever said to Ms Edwards during that conversation that the Defendants would not oppose joinder of that company if it was successfully reinstated, I would certainly have recalled that – but I do not.”

58. In her affidavit, Ms Edwards said:

“I was both sickened and shocked when I read the Affidavits of Mr Kahlil and Mr Benjamin in advance of the March 17 directions hearing. That solicitors would go to such lengths to oppose an adjournment by committing perjury was something I had never experienced in my time as a prosecutor or commercial litigator in the United States. I felt that particularly with Mr Kahlil, it was also a bullying and intimidation tactic which I have been subjected to throughout this case by Mr McLaughlin.”

59. In relation to her complaint about Mr McLaughlin, Ms Edwards expressed her belief that

“… the adversarial relationship has recently crossed into a very toxic and unlawful territory with Mr McLaughlin employing oppressive tactics including bullying, intimidation and harassment which has caused me substantial harm and has been extremely prejudicial to the Plaintiff’s case.”

60. Ms Edwards stated in her second affidavit that she had complained of Mr McLaughlin’s behaviour to the Registrar, “law enforcement”, the Law Society and the Legal Services Commissioner. According to her first affidavit, the bullying and harassment “surround four main issues”.

61. The first issue was the failure of Mr McLaughlin to accept the authenticity of Ms Edwards’ claim that she was suffering from a serious illness. She stated:

“On 23 March 2020, I forwarded a medical certificate to Registrar Jones which documented I was suffering from a serious illness and would be unavailable to work and must self-isolate until 30 April 2020.”

62. I note that this is an email that was not copied to the defendants’ solicitors, Benjamin Lawyers, and that Ms Edwards informed the Registrar that she did not want the medical certificate disclosed to them. It appears that the Registrar acquiesced to Ms Edwards’ request.

63. Ms Edwards stated that Mr McLaughlin sent her three emails “demanding my private medical information” and that, while she was hospitalised, “an anonymous male even called attempting to obtain information about me”. Ms Edwards stated that she alerted the Court to his behaviour in an email which was “annexed hereto as Annexure E along with samples of Mr McLaughlin’s emails”. Annexure E is the email from Ms Edwards to the Registrar dated 11 May 2020. It does not include any emails from Mr McLaughlin to her.

64. The second issue was Mr McLaughlin’s endeavours to corroborate Ms Edwards’ account as to the whereabouts of her laptop. In relation to Mr McLaughlin’s communication to Ms Edwards on 3 June 2020, she stated:

“The laptop was never under the name Gina Edwards and not connected to either of the addresses Mr McLaughlin provided. During the 17 March 2020 hearing and in almost all of my correspondence I only mentioned the Apple Store without specificity. This was based upon my mistaken belief there was only one Apple Store downtown in a shopping mall. After my hospitalisation and in the midst of a major health battle taking multiple medications at after being bullied and harassed, my husband and I both googled Apple Sydney to get updates on the reopening and hours and continued to see it was closed. I did not know this was a different store than I had visited and that it was closed for renovation not due to COVID. Instead of issuing a legal subpoena and faulty Notice to Produce, Mr McLaughlin could have simply authored a professional courteous email request and the confusion would have been cleared up within minutes. Instead, Mr McLaughlin embarked on yet another crusade to harass and intimidate me.

…

… Mr McLaughlin falsely stated in his 3 June email … that I advised the Registrar during the 3 June Directions Hearing I had visited the Apple Store on George Street regarding my laptop. I never said anything about this whatsoever and I never visited this store last week. Mr McLaughlin was not at the hearing so I can only surmise that Mr Alexander told this complete and total lie to Mr McLaughlin who repeated it in his email.”

65. Ms Edwards annexed to her second affidavit the transcript of the hearing on 3 June 2020, which included a reference by her to her need “to get my laptop repaired, which is now in the process of being done at an authorised provider”. Ms Edwards did not explain how or when her computer was transferred from Apple to the authorised provider.

66. Ms Edwards stated that after she had provided the report concerning her laptop from Craig Peterson, “Mr McLaughlin continued threatening and harassing me. See Annexure K”. Annexure K in that version of the affidavit was the email from Craig Peterson. In the other version, the reference is to Annexure L, which is clearly incorrect. Nowhere in the documents annexed to either version of the affidavit do there appear to be emails from Mr McLaughlin after the date of Mr Peterson’s email concerning the laptop issue.

67. The third issue in which Ms Edwards alleged that Mr McLaughlin had bullied and harassed her was in relation to her attempts to reinstate VMA. She stated that Mr McLaughlin’s reference to his viewing of the Companies House website revealing that a four page document needed to be filled in so that a company could be reinstated:

“… is simply untrue. In yet another effort to bully me, he obtains a portion of the facts then twists it to imply I am being untruthful about what is required for reinstatement.”

68. Annexure L to the affidavit is a table described by Ms Edwards in her affidavit as: “A summary of the document [sic] required to be filed with Companies House”. These are a “Form RT01” and a “letter of consent from the Q&LTR office”. Thereafter, she listed “Company accounts” for each of the years 2011 to 2019, “Annual Return Form AR01” for each of the years 2012 to 2015, and “Confirmation Statements (Form CS01)” for the years 2016 to 2019. There was no explanation as to why those documents need to be filed.

69. Ms Edwards described the issuing of a Notice to Produce by Mr McLaughlin to the plaintiff for correspondence with Companies House as being:

“… to imply or even affirmatively state that I am lying about the steps necessary for reinstatement. Again, through an abuse of process, Mr McLaughlin addressed the Notice to Produce to me personally despite I am not a party to this action.”

70. The fourth issue, as best I can understand it from Ms Edwards’ affidavit, concerns a cost assessment of the costs flowing from the decision of the Court of Appeal in her favour on the issue of costs security. She stated:

“In yet another attempt at gamesmanship, the Defendants refused to pay any of my Court of Appeal court costs I was awarded and forced a lengthy Cost Assessment.”

71. In her second affidavit, Ms Edwards referred to annexed photocopies of letters dated 30 September 2010 and 15 October 2010 from Mr McLaughlin to solicitors acting for the Peninsular & Oriental Steam Navigation Company, in which he referred to the plaintiff as “the company with which our clients have a Licence Agreement [permitting] that company the right to market and sell the property of our clients”. Ms Edwards submitted that, in light of this evidence, the defendants’ claim that the assignment is fraudulent is without any basis.

72. Ms Edwards also referred to submissions made by the defendants to Rothman J on 14 November 2018 that the plaintiff was utilising a litigation funder, which Ms Edwards denied.

73. At the hearing, in relation to the laptop issue, Ms Edwards said that she had taken it to the Apple Broadway store, stating: “I did not know there are two stores downtown”. She said she did not deposit the laptop in her name, but did not reveal the name in which it was lodged. She continued:

“We Googled ‘Apple Sydney’ and it said that it was closed. At that point I did not know that the store that I went to was not called ‘Apple Sydney’, nor did I know that there were actually two stores located downtown. So I made the mistake when I Googled ‘Apple Sydney’ of seeing the closure and noting the closure … As soon as Mr McLaughlin made me aware that that store was closed for renovations, I made enquiries and found out that in fact it was a different store but it was considered a downtown store but it had a different name.”

The defendants’ submissions

74. In relation to the first order sought by the plaintiff, the defendants submitted that, even if such an order could be made, the plaintiff was incapable of being bullied since it is an incorporated entity. Neither Ms Edwards nor Mr McLaughlin are parties to the application or the proceedings generally.

75. In relation to the second order sought by the plaintiff, the defendants submitted that the allegation of perjury against the defendants’ solicitors, being an allegation of an offence under the Crimes Act 1900 (NSW), was a matter for the police, who had declined to take any action. Similarly, there is no statement of charge of contempt.

76. The defendants’ enquiries into Ms Edwards’ explanation for not advancing the case since the end of 2019 were appropriate, “perfectly normal and sensible”. It is apparent that Ms Edwards is “very emotionally invested in this litigation” which is a reason in itself to require the plaintiff to engage a solicitor.

77. The defendants referred to Ms Edwards’ claim that Mr Benjamin and Mr Kahlil committed perjury by denying in their affidavits Ms Edwards’ version of the conversation she had with them on 14 February 2020 outside the Registrar’s Court, in particular that they agreed to her proposed amendment to join VMA. It was pointed out that in the email to Mr Kahlil dated 24 February 2020, Ms Edwards referred to her proposed amendment to the statement of claim to add VMA and said:

“As I explained on 14 February, I am in the process of reinstating it with Companies House. Please let me know if you have any objection to this amendment.”

78. Such a request is illogical if indeed Mr Kahlil and Mr Benjamin had indicated on 14 February 2020 that they had no objection to the proposed amendment. It would also be illogical for them to have agreed to VMA being added as a party when at that stage it did not exist.

79. The defendants submitted that a careful reading of the correspondence between their solicitors and Ms Edwards, as well as of Ms Edwards’ affidavits, revealed that her accusations in response to that correspondence were without any justification. The fact that Ms Edwards and the defendants’ solicitors had different recollections of the same conversation was not, by itself, determinative of the defendants’ solicitors having lied or perjured themselves.

80. The defendants do not suggest that Ms Edwards does not have serious health issues but, rather, they have no idea what they are and there is no medical evidence of them, other than her general practitioner’s one-sentence medical certificate. At the hearing before me, Ms Edwards maintained her objection to the defendants having access to the medical certificate apparently attached to her email to the Registrar dated 23 March 2020. In spite of her serious medical condition, Ms Edwards has been able to compose and send multiple emails to the Registrar.

81. The defendants submitted that the passage of time since Ms Edwards commenced the litigation weighed heavily on them. Both are aged in their mid-seventies and are anxious for the litigation to proceed.

82. In conclusion, the defendants submitted that they were entitled to investigate the reasons offered by Ms Edwards as to why the plaintiff had not yet provided a draft amended statement of claim and moved on its motion to file it.

The plaintiff’s submissions

83. Ms Edwards submitted that there were about 120 pages of forms she needed to complete in order for Companies House to reinstate VMA. She provided further information to the reason for the various forms that she had cited in her affidavit of 20 May 2020, submitting:

“I contacted Companies House over the phone to find out whether I could appeal the substantial penalty that my former directors had incurred, which was up to $13,000 because of their failure to file all of these forms in a timely fashion and the company being struck off, and I noted and made that chart of all the documents that were required to be filed in order for the company to be reinstated. I started those documents in February and was planning to launch the reinstatement sometime in March when my laptop failed and I could not finish the documents and then my health failed and I couldn't do anything.”

84. Ms Edwards indicated that she did not know how long it would take her to complete the documentation for Companies House. She named the hospital in which she had been hospitalised for more than three weeks, but stated that she had recovered from the illness, although there had been “some additional issues that had arisen after that”. However, at a later point of her address, she said: “I have been extremely ill over the last six weeks”.

85. Ms Edwards noted that she had her own personal difficulties to contend with; she had spent “hundreds and thousands of dollars prosecuting this case”, in the course of which she had lost her home in the United States and “all of my possessions” funding the litigation.

86. Ms Edwards stated that it was always her intention for the plaintiff to instruct a solicitor and anticipated that she would do so within 60 days, most likely within 30 to 40 days, by which time she expected to have the information on her old laptop available to her and sufficient funds to employ a solicitor.

87. Ms Edwards’ plan in relation to the laptop was to wait until July 2020 when she expected to have sufficient funds to buy a new laptop and pay the “Mac technician” to transfer information from the old laptop to the new one.

The subpoena to produce

88. In his second affidavit, Mr McLaughlin stated that on 3 June 2020, he caused a notice to produce to court to be sent by email and post to Ms Edwards.

89. The notice to produce required Ms Edwards to produce the following to court on 12 June 2020:

“1.   All correspondence between [the plaintiff] and Companies House, limited to documents dated after 1 February 2020.

2.   Any application form lodged with Companies House to reinstate the entity known as [VMA], bearing company number SC351094.

3.   Any document recording the deposit of the laptop referred to in paragraph 3 of the affidavit of Gina Alexandra Edwards, sworn 20 May 2020 with the Apple Store.”

90. Ms Edwards replied to the notice to produce by email the same day, stating:

“I have had several telephone conversations with Companies House regarding the reinstatement of [VMA]. During one of them, I noted the document [sic] required for reinstatement and created a chart in order to keep trap track of the documents needed in paper form to be completed for reinstatement. I will produce that as requested.

I have no other documents other than the laptop diagnosis from the Apple service provider which has already been provided this week.”

91. The subpoena to produce filed on 12 June 2020 requiring documents to be produced to this Court on the date of the hearing, being 22 June 2020, is in identical terms to the notice to produce, above.

92. Conformably with her email dated 3 June 2020, Ms Edwards informed the Court that there was nothing to produce in relation to items 1 and 2. By way of explanation, she stated that there had been no correspondence at all between the plaintiff and Companies House, and an application form had not yet been lodged with Companies House to reinstate VMA. In relation to item 3, Ms Edwards said: “I don’t have any such documents”.

93. Ms Edwards submitted that the notice to produce should be set aside, because:

“I am not personally a party to this action and the notice was sent to the plaintiff which is my entity but yet seeking personal documents from me. So I asked for it to be set aside and when that notice of motion was filed and I assume read by Mr McLaughlin, he then attempted to produce a subpoena which was sent by email not served upon the personally. So I make an oral motion to set aside both the notice to produce and the subpoena.”

94. Ms Edwards’ email to Mr McLaughlin on the same day the notice to produce was sent to her email address is evidence that she accepted service and indeed responded to it. The subpoena to produce, being in the same terms as the notice to produce and also being the subject of a response at the hearing to the same effect as her email dated 3 June 2020, equally constitutes in my view an acceptance of service. Accordingly, I will dismiss Ms Edwards’ prayer that the notice to produce be set aside and her oral application at the hearing that the subpoena to produce the set aside.

Consideration

95. In relation to the defendants’ motion, I am satisfied that it is necessary for the Court to only allow the matter to proceed if the plaintiff is represented by a legal practitioner other than Ms Edwards.

96. In relation to the issue of the laptop, the defendants’ solicitors were and are entitled to seek documentary corroboration of Ms Edwards’ claim that, on the weekend of 22 and 23 February 2020, she left her laptop at the Genius Bar of an Apple Store in Sydney. Leaving it at an Apple store for three months remains a central reason advanced by Ms Edwards as to why she has been, and continues to be, unable to efficiently prosecute her claim against the defendants. Without its contents, she maintains, she is unable to instruct a solicitor to appear for the plaintiff and complete the documentation required by Companies House in order to reinstate VMA.

97. Ms Edwards’ claim that the enquiries made by Mr McLaughlin of Apple constitute harassment is without foundation. The annexure to her affidavit sworn on 20 May 2020 of the Apple website download that stated that the George Street store had been closed since 5 January 2020 contradicted her own account at that time that she had left her laptop there on the weekend of 22 and 23 February 2020. In those circumstances, it was clearly appropriate for Mr McLaughlin to make enquires as to whether the laptop had been left with Apple at all. In the course of the hearing, for the first time, Ms Edwards claimed that she in fact left it at the Apple Broadway store, but has still not indicated in which name she deposited it, nor has she produced any documentation that corroborates her claim that it was left with Apple in February 2020.

95. Ms Edwards’ criticism of Mr McLaughlin for incorrectly claiming in his email of 3 June 2020 that she had informed the Registrar that morning that she had picked up her laptop from the George Street Apple store the previous Friday is justified. However, in her response at the time, she ignored the substantive issue in the email, that Apple had no record of a person with her name having deposited a laptop with Apple at any store, and that the George Street store had been closed in February, in any event.

96. The discovery by the defendants that an email sent by Mr Henderson to Ms Edwards and later produced by her to the plaintiff’s solicitors, Slater & Gordon, had a passage added, so as to suggest that Mr Henderson was aware of the Assignment, raises a serious issue as to the reliability of the plaintiff’s evidence. Ms Edwards has not contested that the email has been tampered with and denies that she was responsible for it, but it has appropriately put the defendants on notice to make their own enquiries as to representations made by the plaintiff.

97. Ms Edwards has claimed that serious health issues have prevented her from finalising the amendment of her statement of claim, but has only provided the defendants with a one-sentence medical certificate that simply states that she is suffering from “a medical condition”. In submissions before me, Ms Edwards stated that she continues to be ill, and has not revealed any detail as to the nature of the condition or its prognosis, beyond what she stated in her affidavit of 20 May 2020. In my view, Mr McLaughlin is entitled to seek information that will enable the defendants to form their own opinion as to the implications of Ms Edwards’ illness for the resolution of their commercial dispute.

98. The entitlement of the defendants’ solicitors to make these enquiries does not excuse any bullying, harassment, humiliation or intimidation that accompanies these enquiries. However, having read the correspondence and affidavits of the defendants’ solicitors that has been tendered into evidence by both parties, there is no evidence before me at all of any such behaviour by the defendants’ past or present solicitors.

99. The first two prayers of the defendants are also warranted by the manner in which Ms Edwards has conducted herself in the proceedings thus far. I accept the defendants’ submission that Ms Edwards is emotionally invested in the matter to a point that her capacity to properly put the plaintiff’s case and act ethically towards the defendants’ legal representatives is impaired. Allegations that they have perjured themselves and that they should be dealt with for contempt should not be made without a proper evidentiary basis. Although Ms Edwards, at the time of the hearing, was a solicitor, she nevertheless has demonstrated that she is unable to discharge her duties as a representative of the plaintiff in the court proceedings with the minimum necessary degree of dispassion. Her decision to block emails from Mr McLaughlin, and thus impair communication between the parties’ representatives, also demonstrates her inability to properly partake in the litigation as a representative of the plaintiff.

100. Ms Edwards will inevitably be a witness in the five-day hearing of the matter, and her credibility has been flagged as a significant feature of the defendants’ case. In that circumstance alone, it is inappropriate for Ms Edwards to continue to appear for the plaintiff.

The orders sought by the defendants

104. In view of the passage of time since the hearing and Ms Edwards’ stated intention at that time to engage a solicitor for the plaintiff within 30 to 40 days from that time, it is appropriate to amend the period of time in order (1) within which a solicitor is to be retained, from 2 months to 1 month.

105. In relation to order (3), ordinarily I would be reluctant to make orders contingently dismissing the proceedings without a further hearing as to the merits of the plaintiff’s case, but in view of Ms Edwards holding a solicitor’s practising certificate and that she acquiesced to that order in her communications with Mr McLaughlin in early June 2020, as well as the age of the matter and the little progress that has been made due to the conduct of the plaintiff’s case, it is appropriate to make order (3).

Orders

106. I make orders as follows.

In relation to the defendants’ notice of motion filed on 28 May 2020, I make the following orders:

1. Pursuant to r 7.1 of the Uniform Civil Procedure Rules 2005 (NSW), the plaintiff is to retain a solicitor holding an unrestricted practising certificate to appear for it in these proceedings.

2. The proceedings are stayed pending compliance with order (1).

3. If a solicitor holding an unrestricted practising certificate has not filed a notice of appearance for the plaintiff by Monday 15 March 2021, then as of that date:

   (a)   the proceedings are dismissed;

   (b)   the plaintiff is to pay the defendants’ costs of the proceedings; and

   (c)   the sum of $10,000 paid into court by way of security for costs, and any interest thereon, is to be released to the solicitor for the defendants forthwith.

4. The plaintiff to pay the defendants’ costs on the defendants’ notice of motion.

In relation to the plaintiff’s notice of motion filed on 10 June 2020, I make the following order:

1. The plaintiff’s notice of motion filed on 10 June 2020 is dismissed, with costs.

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Decision last updated: 15 February 2021