FEDERAL COURT OF AUSTRALIA

Hurd v Zomojo Pty Ltd [2013] FCA 145

THE COURT ORDERS THAT:

1.    The Court refuses to grant dispensation to Mr John Hurd to represent the applicant companies in their application for leave to appeal from the judgment of Gordon J of 5 February 2013 in Zomojo Pty Ltd v Hurd (No 3) [2013] FCA 54.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    Rule 4.01(2) of the Federal Court Rules 2011 provides that a corporation may not proceed in the Court without a lawyer. This rule may be dispensed with in the Court’s discretion. However, the Court will not dispense with the rule, unless the company that seeks to act otherwise than by a lawyer demonstrates a “sufficient reason” to be permitted to do so; see Ecopave Australia Holdings Pty Ltd v Adbri Masonry Group Pty Ltd [2012] FCA 1156 at [4] and the authorities there cited. On 26 February 2013, the Court heard an application by Mr John Hurd for dispensation to represent the second to eighth applicants for the purpose of interlocutory applications advanced by those companies on that day. The Court refused that application. What follows are its reasons for so doing.

2    Together with the first applicant, Mr Matthew Hurd, the applicant companies sought leave to appeal from the judgment of Gordon J published on 19 December 2012 and the orders made on 5 February 2013 to give effect to that judgment. They also sought a stay of aspects of the 5 February orders and an extension of time in which to bring the application for leave to appeal.

3    On 19 December 2012, the primary judge published a lengthy and comprehensive judgment dealing with the application by the current first respondent, Zomojo Pty Ltd, for orders directed against several parties including the current applicant parties. The topics traversed in the judgment are complex. Any appeal from her Honour’s orders requires the care and consideration that only a qualified legal practitioner can bring to such matters.

4    Mr John Hurd prepared the application for leave to appeal and the other interlocutory applications. He said that, as a chartered accountant for over 40 years, he had appeared before administrative tribunals in taxation matters. He contended that he should be given leave to appear for the applicant companies. He claimed prior exposure to court procedures and a level of intelligence sufficient to advance his arguments. He conceded, however, that he was “very weak…in the finer points” of procedure.

5    The sole ground on which Mr John Hurd contended that he should be given dispensation to represent the applicant companies was that the companies were impecunious and unable to afford legal representation.

6    The only material advanced before the Court to attempt to make out that claim was contained in an affidavit of Mr John Hurd. That affidavit merely referred to the current bank balances of the applicant companies. No current audited profit and loss statements were tendered into evidence. Mr John Hurd claimed, from the bar table, that he had some such documents with him but conceded that they were not in proper form and had not been certified or audited. Moreover, there is no evidence about the financial incapacity or otherwise of those who stand behind the applicant companies.

7    There was insufficient evidence before the Court to make out the impecuniosity ground relied on by Mr Hurd. In any event, from the manner of Mr John Hurd’s conduct of the application for dispensation, it is evident that he would have great difficulty in properly and effectively advancing the application for leave to appeal. The Court considered that the interests of justice would not be served by departure from the usual rule that a corporation is to be represented by a lawyer. That is especially so, bearing in mind the legal and factual complexities involved in the proceeding.

8    Those who seek to conduct business through corporate structures obtain certain advantages. On the negative side of that ledger, corporations incur occasional obligations or disabilities. One such disability is the requirement that companies litigate through lawyers; see Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241 at [14] per French J (as his Honour then was). Further, as French J observed, where applicant companies are moving parties and not facing litigation as the consequence of the actions of another, a stricter approach should be taken as to whether dispensation should be granted.

9    No sufficient reason was advanced to convince the Court to exercise its discretion to dispense with the requirements of r 4.01(2). As a consequence, and for all the foregoing reasons, the application was refused.

Associate:

Dated:    1 March 2013