FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission v Dataline.net.au Pty Ltd [2004] FCA 1361

Trade Practices Act 1974 (Cth)

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v DATALINE.NET.AU PTY LTD, AUSTRALIS INTERNET PTY LTD, WORLD PUBLISHING SYSTEMS PTY LTD, JOHN LYNDEN RUSSELL, NEALE FRANCIS BANKS, JEFFERSON LITCHFIELD, SARA MARY MOORE

Q277 OF 2001

KIEFEL J

15 OCTOBER 2004

BRISBANE

THE COURT ORDERS THAT:

1.         The application for leave for the fourth respondent to appear for the first, second and third respondents on the hearing of the action is refused. 

2.         The fourth respondent has leave to appear for the first, second and third respondents on the applicant’s motion to strike out their defence.

3.         The first, second and third respondents pay the applicant’s costs on the motion.

4.         The seventh respondent is at liberty to apply with respect to the issue of her representation.

THE COURT FURTHER DIRECTS:

5.         On the applicant’s motion the fourth respondent file and serve any material on which the fourth respondent and the first, second and third respondents intend to rely by 5 November 2004.

6.         The applicant file and serve its submissions in relation to the applicant’s motion on or before 4.00 pm on 24 November 2004.

7.         The fourth respondent file and serve submissions in relation to the applicant’s motion by 4 pm on 29 November 2004.

8.         The matter be set down for hearing for two hours on 1 December 2004.

9.         The costs for directions be the parties’ costs in the proceedings.

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

REASONS FOR JUDGMENT

1                     The fourth respondent, Mr Russell, has filed an application which is, in effect, one on behalf of the first, second and third respondents to the application that he be permitted to appear for them in the balance of the proceedings, including the trial.  Order 4, r 14(2) of the Federal Court Rules provides that a corporation may not carry on any proceeding other than by a solicitor without the leave of the Court.  The fourth respondent says he is a sole director of the first, second and third respondents.  He effectively managed and controlled them.  These matters are not in dispute. 

2                     The third and first respondents have not traded since 1999 and March 2003 respectively and they have no funds.  I am told that the second respondent is now in liquidation.  The proceedings brought by the Australian Competition And Consumer Commission for contraventions of the Trade Practices Act 1974 (Cth) are factually, technically and legally complex.  The estimates given for the trial to date are between seven weeks and three months.  I have no doubt that the fourth respondent could not adequately present a case for the corporate respondents, even though I accept that he is an intelligent man.  The Court would not be assisted by his acting for the companies, rather to the contrary, I fear.

3                     Then there is the question of his position in the action.  In relation to the contraventions against the first, second and third respondents, it is sought to make him liable as an accessory, or as being knowingly concerned in the contraventions.  It could hardly be a satisfactory state of affairs to have him as a witness in his own defence and also making submissions and presenting evidence for the companies. 

4                     Impecuniosity of a corporation does not automatically permit or require non-legal representation.  In the present case, it is inappropriate. Insofar as the fourth respondent is affected, or potentially affected, by the outcome of the case against the corporate respondents, he can tender such evidence, challenge such evidence and make submissions as are relevant to the corporations’ liability, so far as it affects him. 

5                     I am obliged to refuse the application.  I will, however, make an order that the corporations may be represented by Mr Russell on the hearing of the applicant’s notice of motion for orders that the defence be struck out for non-compliance.  They would seem to me to be limited in their factual scope and Mr Russell should well be able to deal with questions as to why an order should not be made and why there has been non-compliance with the order. 

6                     The seventh respondent has notified the Court that she wishes Mr Russell to appear for her on the hearing of the application.  She was the secretary of the second respondent at a relevant time and an employee of the first and second respondents.  Orders based upon her alleged accessorial liability are also sought against her.  As I have said, she seeks an order that the fourth respondent act for her.  She did not appear at the hearing today but has filed an affidavit.

7                     I can well understand that she may wish Mr Russell to appear for her, but I do not think the Court can make such an order.  Mr Russell is not a lawyer.  He would not be able competently to manage the litigation, in my view.  It could not be suggested that he would be acting in such a way as to assist the Court.  I am not even sure that his and the seventh respondent’s interests coincide in every respect.  Accordingly, I would be inclined to refuse such an application.  Given the absence of the seventh respondent I will grant her liberty to raise the matter again at a later point.

8                     If the seventh respondent has no legal representation, she can listen to what the fourth respondent puts forward at the trial.  If she accepts what is put forward, both by way of evidence and submissions, as correct and adopts them in her defence, in whole or in part, she can then advise the Court that that is the position she wishes to take.  It would seem to me, therefore, that she can effectively take advantage of Mr Russell’s representation without the Court ordering that a non-lawyer appear for her in a case in which, as I have said, the issues may not be distinct. 

9                     My orders, therefore, on Mr Russell’s motion are that the application for leave for the fourth respondent to appear for the first, second and third respondents on the hearing of the action be refused.  Leave will be granted to the companies to have the fourth respondent appear on the applicant’s motion to strike out their defence.  The fourth and seventh respondents will appear for themselves.  Liberty to the seventh respondent to apply with respect to the issue of her representation.

10                  On the fourth respondent’s motion, there will be an order that the first, second and third respondents pay the applicant’s costs on the motion.  On the Australian Competition and Consumer Commission’s motion, there will be directions that the fourth respondent file and serve any material on which he and the first, second and third respondents intend to rely by 5 November 2004, and that the matter be set down for hearing for two hours on 1 December next.  Costs in the proceedings. 

Associate:

Dated:              15 October 2004