Federal Court of Australia

Goldwind Australia Pty Ltd v Ozlift Kranes Pty Ltd [2026] FCA 328

ORDERS

THE COURT ORDERS THAT:

1.    The requirement that the first respondent proceed in the Court only by a lawyer in r 4.01(2) of the Federal Court Rules 2011 (Cth) be dispensed with under r 1.34 on the conditions that:

(a)    The second respondent represent the first respondent;

(b)    The second respondent obtain the assistance of a lawyer for the purpose of preparing and filing any document in the proceeding; and

(c)    A lawyer appear for the first respondent in any contested hearing.

2.    The costs of the second respondent’s interlocutory application dated 18 February 2026 be costs in the cause.

3.    That application otherwise be dismissed.

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

REASONS FOR JUDGMENT

STEWART J:

Introduction

1    This application concerns whether the prohibition on a corporation from proceeding in the Court other than by a lawyer in r 4.01(2) of the Federal Court Rules 2011 (FCR) should be dispensed with so as to allow the corporation to be represented by its sole shareholder and director.

2    The applicants in the underlying proceeding are Goldwind Australia Pty Ltd (GWA) and Goldwind Queensland Construction Pty Ltd (GWQ). The applicants’ primary business is supplying, installing, operating and maintaining wind turbines on large wind farm projects.

3    The first respondent is Ozlift Kranes Pty Ltd (Ozlift). It provides cranage and lifting operations throughout Australia. The second respondent, Beau Michel Hammerstein, is the sole shareholder and director of Ozlift. He is not a lawyer and is not legally trained.

4    On 28 November 2025, the applicants filed an originating application by which they seek final orders restraining the respondents from publishing identified social media posts and from publishing any matter that conveys the representations contained in those posts, damages and costs. The originating application also sought urgent interlocutory relief in the form of various injunctions.

5    On 2 December 2025, Derrington J made orders by consent and “without prejudice” that the respondents remove identified social media posts from certain social media platforms and that they be restrained from republishing those posts or publishing any matter which conveys the disparaging representations in those posts until further order. The Court also ordered that the respondents file and serve an affidavit that articulates all claims that they pursue against the applicants.

6    The social media posts in question made disparaging allegations against the applicants arising out of a former commercial relationship between the applicants and Ozlift. In essence, the posts complained about the applicants’ treatment of Ozlift on projects for which it was subcontracted to do work for the applicants. The applicants allege in their concise statement that the social media posts wrongfully represent of the applicants that one or the other or both of them (emphasis in original):

(a)     treated Ozlift “unjustly”, “unfairly and immorally”;

(b)     cancelled the Subcontract without justification and “unlawfully”;

(c)     did not make timely payments to Ozlift under the Subcontract;

(d)     failed to pay Ozlift for “new crane purchases”; and

(e)     do not support small or family-owned business.

7    The applicants allege that the representations were made in trade and commerce and are misleading or deceptive or likely to mislead or deceive. In the alternative, they allege that under the relevant subcontract Ozlift is precluded from disclosing any information concerning the work to be completed by Ozlift. In the further alternative, the applicants allege that any claims made by Ozlift in justification of making the representations concern conduct that is the subject of a settlement deed. The applicants say that they are entitled to permanent injunctions, damages and costs.

8    The respondents’ concise statement in response avers that the injunctive relief sought by the applicants is otiose, which suggests that there is no longer any dispute about that relief. However, they oppose damages or costs to the extent that they are still sought by the applicants.

9    The respondents have also filed a notice of cross-claim in which Ozlift seeks damages against the applicants. The concise statement of cross-claim alleges that in 2022 GWQ was contracted by Squadron Energy Pty Ltd to design, manufacture, supply and install wind turbines for the Clark Creek Wind Farm Project which is located approximately 150km north-west of Rockhampton in Queensland. It is alleged that on 23 December 2022, GWQ subcontracted with Ozlift to supply cranes to support GWQ’s performance of the head contract for stage 1 of the project.

10    The respondents allege that by letter dated 14 February 2024, GWQ gave notice to Ozlift of material defaults in its performance of the subcontract and subsequently, in reliance on those defaults, terminated the subcontract by notice dated 29 February 2024. The respondents allege that there had been no defaults and that the termination was invalid constituting a repudiation which was accepted by Ozlift. Ozlift claims damages.

11    The affidavit of Mr Hammerstein which the respondents filed in response to the orders of Derrington J on 2 December 2025 deals in substantial detail with the facts underlying Ozlift’s cross-claim and the respondents’ complaints against the applicants. The affidavit alleges that Ozlift has “open invoices” to GWQ amounting to $1,323,192 and orders to GWQ totalling $724,036. It also alleges that Ozlift has suffered an additional $61,640,000 in damages.

12    That brief survey of the parties’ respective claims shows that the essence of the dispute is whether GWQ lawfully terminated the subcontract or whether GWQ’s termination of the subcontract amounted to a repudiation of it, and what damages flowed from that. Although Mr Hammerstein’s affidavit to which I have already referred traverses the history of dealings between the parties across a far broader canvas, the dispute is ultimately quite a narrow one.

13    I now turn to Mr Hammerstein’s application to for leave to represent Ozlift in the proceeding.

The applicable principles

14    FCR r 4.01(2) provides that a corporation “must not proceed in the Court other than by a lawyer”. However, r 1.34 provides that the Court may dispense with compliance with any of the rules. As mentioned, the second respondent applies for the requirement of r 4.01(2) to be dispensed with.

15    With reference to Southcorp Brands Pty Ltd v Australia Rush Rich Winery Pty Ltd [2019] FCA 720; 369 ALR 299 at [82]-[83] per Beach J, the following principles are applicable:

(1)    The Court should be cautious before permitting a non-lawyer to appear and represent a corporation, but the guiding principle is the attainment of justice.

(2)    There are a range of matters which bear upon the exercise of the discretion conferred by r 1.34 to dispense with the prohibition in r 4.01(2) including:

(a)     the financial capacity of the company and those standing behind it; in this respect, the identity of the shareholders and the spread of the shareholding is relevant;

(b)     the capacity of the proposed representative to conduct the case effectively having regard to the skills, qualifications and experience of that representative;

(c)     in assessing the capacity of the proposed representative, whether they have any real understanding of Court processes and whether they have any language difficulties which may impede their effective conduct of the case;

(d)     the complexities of the case; for example, if the proceeding involves difficult questions of law, leave may not be granted;

(e)     whether the overarching purpose prescribed by s 37M of the Federal Court of Australia Act 1976 (Cth) would be promoted by the grant of dispensation;

(f)     whether a lack of disciplinary measures available against the proposed representative may affect the administration of justice;

(g)     the manner in which the case has progressed to date and the manner in which it may progress without the company having legal representation; and

(h)     whether the proposed representative is also a witness and, if so, whether they will properly be able to conduct the case of the company whilst also being a witness.

(3)    When the company is a respondent as opposed to being an applicant or a cross-claimant, a more liberal approach may be warranted concerning the grant of dispensation.

The relevant facts

16    As mentioned, Mr Hammerstein is the sole director and shareholder of Ozlift. He is also the company secretary.

17    Ozlift has 13 employees comprising two crane operators, five riggers, two administrative personnel, one contract manager, one site supervisor, one occupational health and safety supervisor and one in-house legal counsel.

18    Ozlift has exhausted its available financial resources to sustain ongoing business operations. At present, as revenue comes into the business it is used to pay operational expenses. Mr Hammerstein has further capitalised the business to keep it operating by drawing on his personal superannuation and savings in the sums of $700,000 and $550,000 respectively and borrowing $530,000 which is secured against his family home. Mr Hammerstein is considering selling his family home and motor vehicles to meet further financial obligations.

19    Mr Hammerstein alleges that Ozlift has suffered loss due to the conduct of the applicants as detailed in the concise statement of cross-claim discussed above.

20    Almost all relevant communications by and to Ozlift have been conducted by Mr Hammerstein. He is also personally a party to the proceedings.

21    Mr Hammerstein was directly involved in the disputes and will doubtless be Ozlift’s principal witness.

22    Mr Hammerstein, with limited leave for that purpose, has thus far represented Ozlift in the proceedings including at several hearings of the Court. He has done so in a manner that is not the subject of criticism or adverse observation, although by his own admission he is not a lawyer nor is he knowledgeable or experienced in the processes of the Court. The interlocutory application arises because I informed Mr Hammerstein that he would need to make an application if he intended to continue to represent the company.

Consideration

23    The applicants’ principal basis to oppose the dispensation that Mr Hammerstein seeks is that, as they put it, his application appears to proceed on a false premise. That is that although Ozlift does not have a lawyer on the record, its submissions and pleadings appear to have been drafted by or with the considerable assistance of a lawyer. On that basis, the applicants appear to submit that the respondents are in a financial position to engage a lawyer and Ozlift should accordingly be required to do so.

24    For his part, Mr Hammerstein does not dispute that he has had legal assistance in the conduct of the proceedings to date. He also states that it is his intention “to engage legal practitioners for each task [for] which he considers he requires qualified legal practitioner assistance” including for any contested hearing. The pleadings and affidavits that have thus far been filed on behalf of the respondents are reasonably clear and competent, although the affidavits tend to canvass extraneous and irrelevant issues.

25    The consequence is that there is a paradox in the applicants’ principal objection – although it would appear that the respondents have sufficient resources to engage legal assistance at least from time to time, their willingness to have done so means that the proceeding has thus far been conducted in a reasonably professional and constructive manner.

26    I will now consider the various factors identified above at [15].

27    First, I accept that Ozlift is in constrained financial circumstances and that Mr Hammerstein’s capacity as shareholder to further invest capital in the company for the appointment of lawyers is limited. Nevertheless, the company is a significant commercial undertaking that actively participates in the commercial life of the nation.

28    The fact that Mr Hammerstein is the only shareholder of the company means that the Court does not have to be concerned to protect the interests of other shareholders if Mr Hammerstein is in effect given leave to represent the company. However, there are other parties who also have an interest in the company being competently represented, namely the company’s employees and creditors. The Court should also have an eye to the protection of their interests.

29    Secondly, Mr Hammerstein does not have capacity on his own to adequately represent the company. However, if he is to proceed in the way in which he has apparently proceeded thus far and in which he has stated he intends to proceed, namely by obtaining legal assistance on a task basis as needed including for any substantive hearing, then he has reasonable capacity to represent the company.

30    Thirdly, the case is not particularly complex. As I have indicated, the real dispute is relatively narrow. It would appear that the injunctive part of the case is not really in dispute, and although the applicants mention a claim for damages they have not pleaded one in any detail. It is not clear whether such a claim is pursued. In the event that Ozlift is successful on the cross-claim, some complicated questions of quantification of loss may arise particularly if a claim for damages in excess of $61 million is to be maintained.

31    Fourthly, the overarching purpose of the civil practice and procedure provisions is to “facilitate the just resolution of disputes … according to law … and … as quickly, inexpensively and efficiently as possible”. It seems to me that the parties’ disputes will be resolved most efficiently if Ozlift is represented by a lawyer. However, it is not clear to me that the disputes will be resolved any less quickly if Ozlift is not represented by a lawyer. I do not consider that the proceeding will be materially more expensive for the applicants if Ozlift is not represented by a lawyer. It will clearly be conducted less expensively for Ozlift if it is not represented by a lawyer. The consideration of the “just” resolution of the disputes favours dispensation being granted because it appears likely that Ozlift would not be able to pursue its claim which, on the face of it, appears to be at least arguable, if dispensation were not granted.

32    It is relevant that Mr Hammerstein will in any event apparently be a litigant in person. Thus, whether or not Ozlift is represented by a lawyer, the proceeding will have an unrepresented party with the attendant difficulties and inefficiencies that that inevitably presents.

33    Fifthly, in view of Mr Hammerstein’s intention to appoint a lawyer to appear for Ozlift in any contested hearing, I do not consider that the absence of disciplinary measures available against Mr Hammerstein himself to be significant. The Court is in a position to continue to manage the conduct of the proceeding and to reverse any dispensation that may be granted if that becomes necessary.

34    Sixthly, as mentioned, the case has progressed in a reasonable fashion to date.

35    Seventhly, Mr Hammerstein will be a critical witness in the case. Ordinarily, that would count substantially against dispensation being granted. However, in circumstances where a lawyer will be engaged to conduct any contested hearing, that consideration loses its significance.

36    Finally, Ozlift is both a respondent and a cross-claimant in the proceedings. Given the respondents’ apparent position in relation to the applicants’ principal claim being for the injunctions, with the result that the principal dispute in the proceedings concern the cross-claim, Ozlift is principally a claimant. That weighs against the grant of the dispensation.

37    In all the circumstances, I consider that justice is best served by granting a dispensation and allowing Mr Hammerstein to represent Ozlift in the proceeding provided that he gets guidance or assistance from a lawyer for the purpose of drafting documents in the proceeding and that a lawyer represent the company at any contested hearing.

38    The applicants oppose that course, submitting that “a Clayton’s solicitor is not a concept recognised by the Court” and that “the lawyer sitting behind [Mr Hammerstein] ought to enter an appearance”. They cite Cloud Top Pty Ltd & Anor v Toma Services Pty Ltd [2008] NSWSC 278 at [8] in support of that submission. Presumably the intention is to refer to that case at [5] (the penultimate paragraph of the judgment) where Einstein J said that “there is no such thing as a ‘Claytons type solicitor’”. His Honour held that a barrister instructed by a solicitor who was not representing the firm of solicitors on the record for the relevant party had no right of audience for that party.

39    The applicants do not explain what a Claytons solicitor is, and the reference by Einstein J appears to be the only reference to such a thing in all of the law reports of Australia as available online (and, indeed, other jurisdictions). It appears to be derived from the colloquial meaning in Australia of “Claytons”, namely “serving as a substitute or an imitation”: Macquarie Dictionary, online (2026). The expression derives from the Claytons trade mark for a non-alcoholic, non-carbonated beverage coloured and packaged to resemble bottled whisky which was advertised in Australia and New Zealand in the 1970s and 1980s as “the drink you have when you’re not having a drink”:

40    I do not consider that it is necessary for any lawyer assisting Mr Hammerstein from time to time, or acting on a direct instruction for the limited purpose of appearing at a contested hearing, to enter an appearance and in that sense go formally on the record; it is not a requirement of the FCR that they do so: CPJ17 v Minister for Immigration and Border Protection [2018] FCA 1242; 258 FCR 495 at [41] and [84]-[87] per Charlesworth J.

41    For those reasons, I will order that the requirement under r 4.01(2) that the first respondent proceed in the Court only by a lawyer be dispensed with under r 1.34 on the conditions that:

(a)    The second respondent represent the first respondent;

(b)    The second respondent obtain the assistance of a lawyer for the purpose of preparing and filing any document in the proceeding; and

(c)    A lawyer appear for the first respondent in any contested hearing.

42    Mr Hammerstein sought that costs be in the cause. That is the appropriate position.

Associate:

Dated:    23 March 2026

SCHEDULE OF PARTIES