FEDERAL COURT OF AUSTRALIA
Ecopave Australia Holdings Pty Ltd v Adbri Masonry Group Pty Ltd [2012] FCA 1156
IN THE FEDERAL COURT OF AUSTRALIA | |
ECOPAVE AUSTRALIA HOLDINGS PTY LTD (ACN 129 893 465) Applicant | |
AND: | ADBRI MASONRY GROUP PTY LTD (ACN 055 701 034) Respondent |
DATE OF ORDER: | |
WHERE MADE: |
THE COURT ORDERS THAT:
1. The applicant’s applications for an extension of time and leave to appeal dated 16 August 2012 each be dismissed.
2. The Applicant pay the Respondent’s costs, such costs to be paid forthwith.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
VICTORIA DISTRICT REGISTRY | |
GENERAL DIVISION | VID 582 of 2012 |
BETWEEN: | ECOPAVE AUSTRALIA HOLDINGS PTY LTD (ACN 129 893 465) Applicant
|
AND: | ADBRI MASONRY GROUP PTY LTD (ACN 055 701 034) Respondent
|
JUDGE: | TRACEY J |
DATE: | 22 August 2012 |
PLACE: | MELBOURNE |
REASONS FOR JUDGMENT
1 There are before the Court applications for an extension of time and leave to appeal from a judgment of Marshall J given on 2 August 2012. His Honour had required the applicant to provide security for any costs order which might be made in favour of the respondent. The action was stayed until such time as the applicant gave security. His Honour further ordered that the security be paid into Court by 4:00 pm on 30 August 2012 and that, if this did not happen, the proceeding would stand dismissed. His Honour subsequently extended this deadline.
2 The applications for extension of time and leave to appeal record that they are filed on behalf of the applicant and were prepared by Mr Eerik Owerhall. Mr Owerhall is not a lawyer. A private residential address and telephone number were provided. Although the applicant was legally represented before Marshall J, the present applications have not been made by a lawyer on behalf of the applicant company.
3 Rule 4.01(2) of the Federal Court Rules 2011 (Cth) (“the Rules”) provides that a corporation “must not proceed in the Court other than by a lawyer.” By Rule 11.02, a notice of address for service for a corporation must be filed by a lawyer.
4 These requirements may be dispensed with under Rule 1.34. The Court will not dispense with the requirements of Rules 4.01(2) and 11.02 unless a company which wishes to act otherwise than by a lawyer demonstrates a “sufficient reason” to be permitted to do so: see Re Molnar Engineering Pty Ltd v Burns (1984) 3 FCR 68 at 74-75 (per Smithers J); AA Shi Pty Ltd v Avbar Pty Ltd (No 4) [2010] FCA 878 at [15] (per Collier J); Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia (No 12) [2012] FCA 289 at [9]-[21] (per Flick J).
5 If a corporation wishes to act by a person other than a lawyer it is necessary that an application be made on its behalf for the requirements of Rules 4.01(2) and 11.02 to be dispensed with. Such an application must be supported by evidence.
6 Mr Owerhall is well aware of these requirements. He made such an application for dispensation earlier this year: see Ecopave Australia Holdings Pty Ltd v Adbri Masonry Group Pty Ltd [2012] FCA 567. He was unsuccessful.
7 It may be that the applications for extension of time and leave to appeal are incompetent by reason of them not having been prepared and filed by a solicitor: see Individual Homes Pty Ltd v Commonwealth Bank of Australia (1994) 50 FCR 372 at 375-6. It is sufficient, for present purposes, however, to note the absence of any application for dispensation and of any material to support such an application, had it been made.
8 When the applications came on for hearing on 30 August 2012 Mr Owerhall attended and advised the Court that he was seeking financial assistance from the Australian Government under the Commonwealth Guidelines for Legal Financial Assistance 2012. His application had been made but had not been determined. In order to provide a reasonable opportunity to him to obtain assistance on behalf of the applicant I adjourned the hearing of the applications to 12 October 2012 and directed that the applicant file and serve any applications, affidavits and an outline of submissions on which it proposed to rely at the adjourned hearing on or before 5 October 2012.
9 The business of the Court subsequently required that the adjourned hearing date be changed to 22 October 2012.
10 The applicant remains without legal representation. When the matter came on before me this afternoon Mr Owerhall again attended. He provided documentation showing that the application for financial assistance had been refused but that he had sought, on behalf of the applicant, an internal review of that decision within the Attorney-General’s Department. No indication was given of when that internal review might be completed. Mr Owerhall sought a further adjournment for a month.
11 The respondent opposed the application for an adjournment and sought an order that the applications be dismissed.
12 In the circumstances, Rule 4.01(2) operates to prevent Mr Owerhall acting on behalf of the applicant in prosecuting the present applications. This proscription extends to him preparing, filing and serving the applications and appearing in the proceeding.
13 As no application for dispensation from the operation of Rule 4.01(2) or any material supporting such an application have been filed , the procedural position remains as it was on 30 August 2012. The applicant cannot proceed with its applications. There is no indication as to when the internal review decision by the Attorney General’s Department will be forthcoming and the outcome of the review cannot be predicted. Mr Owerhall also foreshadowed a fresh application for assistance.
14 The purported applications for an extension of time and leave to appeal must be dismissed with costs.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. |
Associate:
