YPG IP Limited v Yellowbook.com.au Pty Limited HC Auckland CIV 2007-404-2839

[2007] NZHC 1943

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2007-404-002839

BETWEEN  YPG IP LIMITED First Plaintiff

AND  YELLOW PAGES GROUP LIMITED Second Plaintiff

AND  YELLOWBOOK.COM.AU PTY LTD First Defendant

AND  DAVID KHOURY Second Defendant

AND  ROBERT G COLES Third Defendant

Judgment:      29 June 2007

JUDGMENT OF HARRISON J

In accordance with R540(4) I direct that the Registrar endorse this judgment with the delivery time of

1.30 pm on 29 June 2007

SOLICITORS

AJ Park (Auckland) for Plaintiffs
Copy to: David Khoury, 7 Yampi Court Shailer Park, Brisbane, Queensland 4128; Robert G Coles,

11/76 Bayview Street, Runaway Bay 4216, Australia

YPG IP LIMITED AND ANOR V YELLOWBOOK.COM.AU PTY LTD AND ORS HC AK CIV 2007-404-

002839  29 June 2007

[1]      YPG and Yellow Pages Group Ltd issued this proceeding on 17 May 2007. They seek relief from the defendants, all three of whom reside in Australia, as a result of alleged breaches of intellectual property rights.  Of particular relevance is their allegation that the first  defendant, Yellowbook.Com.Au, has breached  their copyright and infringed a trademark relating to the Yellow Book directory.

[2]      None of the three defendants has yet filed a statement of defence; given that they reside in Australia, they are not required to file defences until some time in July.

[3]      On 13 June 2007 Clifford J made a number of interim orders.   He directed Yellowbook.Com.Au to serve on YPG’s solicitors within 10 days of the sealing of the order an electronic copy of the Yellow Book directory of New Zealand including specified material.   He also directed that another of YPG’s application for orders relating to material already sent by the defendants to the Court should be heard in the Duty Judge list on 27 June (now apparently enlarged to 4 July 2007).

[4]      Since then the defendants, without the benefit of legal representation, have filed a succession of documents including what are described as memoranda relating to the defendants’ positions, unavailability of certain dates and an application to vary the orders made by Clifford J on 13 June.

[5]      On  21  June  Mr  Emmanuel  Khoury,  Yellowbook.Com.Au’s   managing director, filed a memorandum effectively seeking an order granting leave to allow a director of the company to act for and on its behalf in this proceeding.   He gave various reasons for the request including that Yellowbook.Com.Au has had insufficient time to engage solicitors in New Zealand and cannot afford a retainer of

$20,000 requested by law firms for that purpose.  He also said that he was unable to attend in this Court on 4 July 2007 given the existence of a pre-existing commitment to baptise his child in Israel.

[6]      The  law  in  New Zealand  is  settled.    A  body  corporate  has  no  right  of audience in superior courts because it is not a natural person and cannot appear in person.  Accordingly, a corporation has no right to representation except by counsel. Its rationale is to ensure that the Court will be served by its officers who observe the

rules of their profession, are subject to a disciplinary code, and are familiar with the methods and scope of advocacy followed in presenting arguments in Court: Re GJ Mannix Ltd [1984] 1 NZLR 309 (CA). While Courts have a residual discretion to allow unqualified advocates such as the company’s officers to appear before them, non-professional representation of a company is rarely allowed.

[7]      This proceeding raises difficult issues of intellectual property law.  Litigation in this area is traditionally complex.  A party such as a corporation requires skilled legal  representation.    The  documents  filed  by the  defendants  in  person  to  date disclose an unfamiliarity with the requirements of litigation in this country, both procedural and substantive, which may operate to their eventual detriment.

[8]      In   my   judgment   it   is   essential   that   Yellowbook.Com.Au   is   legally represented if it intends to defend any steps in the proceeding.   Mr Khoury’s application falls well short of satisfying the threshold necessary to justify a departure from the principle that a corporate party should be represented by a solicitor, preferably one experienced in the law of intellectual property.

[9]      I decline Mr Khoury’s application for an order granting leave for an officer of the company to represent Yellowbook.Com.Au in this proceeding.  It must secure formal legal representation if it wishes to take any steps in defence of YPG’s claim. I also direct the registry to reject any further documents lodged for filing for and on behalf of Yellowbook.Com.Au unless they are filed by solicitors.  These orders and directions  do  not  inhibit  the  rights  of  the  second  and  third  defendants  from

representing themselves in this proceeding.

Rhys Harrison J