FEDERAL COURT OF AUSTRALIA

Sharples v Australian Electoral Commission [2007] FCA 2102

 Practice and procedure – commencement of proceedings by corporation – leave refused for corporation to be represented by non-lawyer

TERRY PATRICK SHARPLES AND THE FISHING PARTY v AUSTRALIAN ELECTORAL COMMISSION, AUSTRALIAN FISHING & LIFESTYLE PARTY, KEVIN COLLINS, WAYNE BAYNE, ALEX WHITTEN, MALCOLM BAIRSTOW AND COMMONWEALTH GOVERNMENT OF AUSTRALIA

ACD 53 OF 2007

FLICK J

11 DECEMBER 2007

CANBERRA

THE COURT ORDERS:

1.                  That leave as sought in paragraph 1 of the Notice of Motion as filed on 29 November 2007 be dismissed.

2.                  The Second Applicant to pay the costs of the First and Seventh Respondents of and incidental to the hearing of that part of the Motion.

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

REASONS FOR JUDGMENT

1                     Leave has been granted this afternoon to file a Notice of Motion dated 29 November 2007.  Argument has proceeded upon Order 1 as sought in that Motion, namely that:

Leave be granted to appear in these proceedings as the second [Applicant] (if at law leave be required pursuant to Order 4 rule 14 of the Federal Court Rules in the alternatively [sic] leave to appeal from Orders 2 and 3 of the judgment and [sic] of Spender J delivered on the 21 November 2007, matter heard same date.

Orders 2 and 3 as made by Spender J were as follows:

1.     The Second Applicant is to prosecute the application only in accordance with Order 4 rule 14 of the Federal Court Rules.

2.     The Applicants’ claims for interlocutory relief be dismissed.

2                     The hearing this afternoon in respect to the Motion has been confined to O 4 r 14 of the Federal Court Rules 1979 (Cth) and whether a non-lawyer, Mr Smith, should be given leave to appear for the Second Applicant.

3                     Considerable reservation has been expressed as to whether or not it is appropriate to revisit Order 2 as made by Spender J on 21 November, but in the interests of the administration of justice, it has been considered desirable to do so. 

4                     On that occasion, his Honour did not have the benefit of the evidence now adduced in support of the Application that leave be granted for Mr Robert Smith to appear for the Second Applicant.  This afternoon, the evidence relied upon has been an Affidavit of Robert Arthur Smith, sworn on 28 November 2007; an Affidavit of Paul Hennelly, sworn on 11 December 2007; an Affidavit of Terry Patrick Sharples, sworn on 20 November 2007; and the Application as made on 15 November 2007 for exemption or waiver made to this Court.

5                     Order 4 r 14 provides as follows:

1. Subject to subrule (2) and order 43 (which relates to disability), any person may proceed in the court by a solicitor or in person.

2. Except as provided by or under any Act, a corporation may not, without the leave of the court, commence or carry on any proceeding otherwise than by a solicitor.

The term "corporation" is further defined by O 1 r 4 as including “any artificial person other than an organisation”.  The term "organisation" is defined as having the meaning given by subs 4(1) of the Workplace Relations Act 1996 (Cth).

6                     The circumstances in which the present Motion was attempted to be filed in the ACT Registry has only permitted a cursory review of the authorities as to the manner in which the discretion conferred by O 4 r 14 is to be exercised.  Even though the Second Applicant has now been given the opportunity to adduce such evidence upon which it now wishes to rely, it is not considered that leave as sought should be granted or that the orders made by Spender J should be varied.

7                     For present purposes, it is sufficient to refer to the following observations of French J as to the discretion to permit a non-lawyer to appear for a corporation and to the terms of both O 4 r 14 and the English rules of Court in Simto Resources Ltd v Normandy Capital Ltd (1993) 10 ACSR 776 at 781:

The high threshold of exceptional or special circumstances which applies to the exercise of the discretion under the English rules and similarly formulated rules in Australia, no doubt derives from the characterisation of the discretion as a dispensing power. This will be coupled with the rationale for the restriction which in large part is related to the proposition that persons should not be represented in superior courts other than by legally qualified agents who not only possess the relevant skills to conduct litigation but also are bound to observe certain duties to the court itself. Of course, any natural person may represent himself or herself. But a company being a fictitious legal person must always be represented by another. And that attracts the application of the principle that representation by an agent should be limited to legally qualified persons subject to the inherent and residual discretion of the court to waive the requirement in appropriate circumstances.

His Honour continued at 782:

… The position under the Federal Court Rules is not as restrictive as that which applies under the English and various of the State Supreme Court Rules. While the rationale of the restriction is basically the same, the power of the court to give leave to a corporation to carry on a proceeding otherwise than by a solicitor is expressly conferred as an integral part of the rule. The English cases and those in other jurisdictions with similar rules, invoke a general dispensing power whose application is ambulatory and to be construed in particular cases by reference to the content and significance of the rule under consideration. The terms of O 4 r 14 itself contemplate that leave may be granted and raise no express threshold requirement of special or exceptional circumstances.

… Factors relevant to the exercise of the discretion to give leave would include the class of company involved, the nature of its undertaking, its financial structure, its ability to retain and pay its staff, the identity of its shareholders and the spread of the shareholding. The fact that a company is the alter ego of a single person who has advantageous educational and technical qualifications might also be important….

8                     The affidavit evidence now relied upon takes the matter little further than the situation as it was before Spender J.  Such additional material as is now available indicates that the Fishing Party has branches in New South Wales, Queensland, and Victoria, and has a national membership of approximately 2400 members.  The evidence further indicates that Mr Smith, who seeks to represent the Second Applicant, has made available to the Fishing Party approximately $40,000.  Exhibit 1, namely, the “Application for Waiver”, suggests that the finances of the Fishing Party may be more constrained.  That exhibit records, in the bank account to which it refers, a balance of $677.64.

9                     In rejecting the Application for leave that Mr Smith be permitted to represent the Second Applicant, consideration has been given to the fact that none of the evidence sets forth the qualifications, expertise or experience of Mr Smith which may be of benefit to the Court.  Consideration has also been given to the fact that the Application as drafted raises serious allegations for which there is at present little, if any, support in the Affidavit.  The Application, for example, seeks a “declaration that the decision to registrar [sic] the second respondent party (AFLP) was induced or procured by fraud or misleading information”.  The seriousness of allegations raised is relevant to a decision as to whether or not to grant leave: see Slack v Bottoms English Solicitors [2003] FCA 1337.  The nature of those allegations are such that they are more likely to be made by an unrepresented party and may not survive the scrutiny of a legally qualified practitioner. 

10                  Also relevant to the question as to whether leave should be given is the nature of the proceeding sought to be pursued and whether legal representation is needed.  In Abse v Smith [1986] QB 536, 1 All ER 350, Sir John Donaldson MR referred to the limitations upon those persons who could appear as advocates in proceedings in England and continued at 353–4:

These limitations are not introduced in the interests of the lawyers concerned, but in the public interest. The conduct of litigation in terms of presenting the contentions of the parties in a concise and logical form, deploying and testing the evidence and examining the relevant law demands professional skills of a high order. Failure to display these skills will inevitably extend the time needed to reach a decision, thereby adversely affecting other members of the public who need to have their disputes resolved by the court and adding to the cost of the litigation concerned. It may also, in an extreme case, lead to the court reaching a wrong decision.

Lord Justices May and Glydewell agreed. 

11                  A reading of the Application alone is sufficient to indicate the desirability of the present proceedings being prosecuted by those with legal qualifications.

12                  The First and Seventh Respondents seek their costs, invoking the normal approach that costs follow the event.  Notwithstanding the assertion of public interest relied upon by Mr Smith on behalf of the Second Applicant, it is considered that costs should follow the event.  The Second Applicant, before filing its Motion, was confronted with Order 2 as made by Spender J on 21 November 2007.  It unsuccessfully sought to revisit that order.  There is no reason that costs should not follow the event. 

ORDERS

13                  Accordingly, the orders of the Court are:

1.                  That leave as sought in paragraph 1 of the Notice of Motion as filed on 29 November 2007 be dismissed.

2.                  The Second Applicant to pay the costs of the First and Seventh Respondents of and incidental to the hearing of that part of the Motion.

Associate:

Dated:         22 January 2008