FEDERAL COURT OF AUSTRALIA

Hamod v State of New South Wales

[2000] FCA 1100

ANTHONY HAMOD and HAMOD INVESTMENTS PTY LIMITED v STATE OF NEW SOUTH WALES and UBS AUSTRALIA LIMITED

N 643 OF 2000

GYLES J

SYDNEY

2 AUGUST 2000

THE COURT ORDERS THAT:

1.                  The Notice of Motion seeking leave for the second applicant to continue to be represented by first applicant be dismissed.

2.                  Second respondent’s Notice of Motion to have the proceedings struck out or generally stayed be dismissed.

3.                  The proceedings brought on behalf of second applicant be stayed pending further order.

4.         Costs reserved.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     In this matter the application was commenced on behalf of two applicants, Anthony Hamod, the first applicant, and Hamod Investments Pty Limited, the second applicant, by the first applicant.  He tells me that when he spoke with the Federal Court Registry in Sydney he was informed that notwithstanding O 4 r 14(2) the proceedings could be commenced and leave granted by the court in due course.  There is authority that that is so.  See Checked-Out Pty Ltd v Eagle Eye Inspections Pty Ltd (1999) 92 FCR 451 per Lehane J.

2                     When the matter came before me last week I granted leave for Mr Hamod to represent the second applicant for the purposes of that application, and indeed until further order.  I indicated the leave to represent would expire today, and to regularise that I withdraw the leave that was granted on that occasion and order that leave to be withdrawn.  This is merely done to bring the matter into status quo.

3                     Mr Hamod has now filed a notice of motion seeking leave that the first applicant continue to represent the second applicant in these proceedings.  I have read the evidence filed on his behalf and the evidence filed by Mr Speakman, on behalf of the second respondent.  Both respondents object to the leave which is sought being granted. 

4                     Counsel for each of the first and second respondents have filed and now serve written submissions as to their position.  Mr Hamod has a copy of those submissions, and they will need to be placed with the papers.  They are consistent with each other and, in the main, stress the same points, although the submissions on behalf of the second respondent are somewhat fuller.

5                     It seems to me, with one exception, that the considerations which Mr Speakman has included in his submissions, and which are mirrored by Mr Lancaster's submissions for the first respondent, are material to the discretion which I have pursuant to O 4 r 14(2), and I am satisfied that I have been referred by counsel to the relevant authorities on the topic.  The exception is that in this case I am not yet satisfied that the question of the incapacity of Mr Hamod due to the illness, which is spoken of in the evidence, would be sufficient to be seriously weighed on the scales against his application.

6                     Save for that matter, it seems to me that Mr Speakman's points are sound.   I will not burden this judgment by reproducing the submissions word for word.  Mr Hamod has been here and has read and heard them.  The transcript will speak for itself.  As each counsel has submitted, it is correct that the normal rule is that a company must act by a solicitor.  There are sound reasons for this rule which have been mentioned and explained by the judges who have so far considered this type of application.

7                     I accept the submission that it is, generally speaking, for the applicant on this motion to establish good reasons for departure from that general rule.  In my opinion, that has not been achieved by Mr Hamod in the present case.  He can make no case that there is no possibility of having representation because of the financial position of the applicant.  The nature of the case tells very heavily against it being carried on properly without the assistance of a solicitor. 

8                     I have not as yet closely examined or analysed the application or the statement of claim.  Suffice to say that they are prolix, and that a number of causes of action are referred to.  The circumstances under which they are pleaded can at least be recognised as being somewhat novel.  The claims for damages are very substantial and again not in a conventional form.

9                     The role of a solicitor in commercial litigation of this character is extremely important, as has been stressed by counsel.  There are two main features of it that influence me.  The first is the professional responsibility which must be brought to bear, with a duty owed to the court as well as to the client.  The second is a sheer matter of competence to understand what the causes of action are and how the facts relate to them, and then to be able to, in a sensible fashion, present the matter to the court, on the pleadings and during the course of interlocutory procedures, as well as the trial.  That is not to down play the role either of the client or counsel who may attend on particular occasions.

10                 Mr Speakman and Mr Lancaster have both drawn attention to the fact, as French J did in Termi-Mesh Australia Pty Ltd v Jocu Manufacturing Pty Ltd (1999) FCA 1241, that when a corporation is used as the vehicle for conducting business, that carries with it many advantages and it also carries with it responsibilities.  One of those responsibilities is to conduct litigation through solicitors unless there is a good reason to the contrary, particularly where the corporation is an applicant.  This is particularly true for an applicant in what is essentially a commercial matter, so far as that applicant is concerned, involving very serious allegations against the respondents, with the claimed relief being very serious both as to the financial aspects and the other aspects of the matter.

11                 Counsel have also stressed the fact that in this case it is clear from the material before the Court on this motion that Mr Hamod will, himself, be a principal witness in the matter for the applicants, and that creates its own special problems which are not limited to the final hearing or trial.  The conduct of interlocutory proceedings in a matter such as this is of crucial importance.

12                 I think it is correct that I must take into account not just the interests of the parties to this litigation, although that is paramount, but I must also have in mind that the court is not here as a sort of quasi-legal service for unrepresented applicants in matters of this character. In particular, it is not able and should not be devoting more time to this case than is proper to be devoted to it, having in mind its inherent characteristics.  In other words, if time is wasted that then effectively means that the court cannot deal with the cases of other litigants.

13                 The matter which caused me concern on the last occasion, and still requires consideration, is the fact that the first applicant is already a party to the proceedings and requires no leave to represent himself.  Whilst that can be put simply, it is complicated, because there is also a general rule that applicants should be represented by the one representative.  That is not again a hard and fast rule and may depend upon the nature of the proceedings.  It has been put to me that I should not approve a situation in which Mr Hamod would represent himself in the event that a solicitor is engaged for the company.  I think it is premature to consider that situation.  I am here concerned only with the application in relation to the company. 

14                 On reflection it seems to me that all of the reasons why it is appropriate that a company be represented by a solicitor continue to apply in a case of this character, notwithstanding the fact that the individual is an applicant also.  Furthermore, even a superficial look at the pleadings in the matter indicates that there may be a myriad of issues in this case which could lead to a situation in which the corporation has interests which are separate from that of Mr Hamod, which will require separate and professional consideration and in which the court is entitled to expect that to be provided.  So, for all those reasons, I decline to make the order sought.  That means that there is no existing leave for the proceedings to be carried on by the second applicant otherwise but by a solicitor.

15                 Mr Speakman on the last occasion filed a motion seeking to have the proceedings dismissed as incompetent because, he said, no leave had been obtained prior to the proceedings being commenced and he says that if no retrospective leave is granted the same situation now exists.  I take Mr Lancaster, on behalf of his client, to essentially put the same submission.  I do not propose to strike out the proceedings or stay the proceedings generally.  Mr Hamod, as an individual, is entitled to bring his case subject to all of the interlocutory processes of the court, and I do not propose to take any step which would impede his action.

16                 The position of the corporation is that at the moment it is without leave to commence or carry on the proceedings.  I think the appropriate thing to do, just to make sure we all know where we stand, is for me to stay the proceedings in so far as they are brought on behalf of the second applicant pending further order.  I propose to stand the matter over for a time which we can agree to enable Mr Hamod and the second applicant to consider their position.  Mr Hamod has already indicated that he would expect that the second applicant would retain a solicitor.  If that is so, the sooner the better, so that we can work out a sensible way of proceeding with this case.  It is clear to me that there will be interlocutory proceedings of one sort or another which need to be dealt with.  I will, as it were, retain interlocutory control of the matter, and the second applicant can always make a further application to be relieved of the responsibility to instruct a solicitor if the occasion arises.

17                  I should have earlier said that I agree with the submission that was made to me that the retaining of counsel at the trial, whilst an advantage, does not substitute for the solicitor’s role in the meantime.  I think that is implicit in what I earlier had to say.

Associate:

Dated:              August 2000