Peter A Clarke

The bane of a litigators life is an unrepresented litigant.  Another burr under the saddle is a corporation represented by an officer.   Unrepresented litigants, with a few notable exceptions, often put arguments that are exciting to make but not relevant.  That is not to say lawyers are free of running ridiculous points.  A few appearances before an overworked judge usually cures an advocate of running silly points.

In Worldwide Enterprises Pty Ltd v Silberman & Anor Forrest  J  heard an appeal by defendants seeking to stay the pleading under Rule 1.7 of hte Supreme  Court Rules until the plaintiff engaged solicitors.  The Defendant also sought security for costs.

Representation

Forrest J rejected a submission that there  was no  discretion to permit  a corporation to take a step in a proceeding without proper legal representation.  At  paragraph [20] he set out the guiding principles:

20 In light of the foregoing discussion, the following principles, I think, can be distilled:

(a) The starting point, as rule 1.17 shows, is that usually a company will not be permitted to appear without a legal representative. However, the rule is not absolute.

(b) Where such circumstances warrant it, a company may be permitted to “take a step” without being represented by a legally qualified person.

(c) The following matters are relevant to determining whether such circumstances have been shown.

(i) The manner in which the case has progressed at the time that the application is made.

(ii) The manner in which the case can proceed in the future without a solicitor;

(iii) The complexity of the issues involved in the case.

(iv) Whether the lack of disciplinary measures in relation to the person seeking to represent the company will affect the administration of justice;

(v) Whether the case can be conducted in an orderly and responsible fashion without a solicitor;

(vi) Whether there are financial considerations which would inhibit a company from obtaining legal representation;

(vii) The stage which the case has reached;

(viii) Whether the defendant is likely to expend more funds in defending the claim absent a solicitor acting for the company;

(ix) What effect, if any, permitting a company to appear without a solicitor will have on Court resources and, particularly, the effect upon other litigants in the Court List.

At paragraphs [21] – [29] Forrest applied the principles to the facts in the case to date.  And what a dismal history it seems to have been.  The defendants found their without prejudice communications being splashed about in affidavits and counsel being attacked by name.  That unfortunately is depressingly familiar.

Security for Costs

The principles surrounding security for costs is well established.  Forrest J set out the key principles at paragrah [30] – [33].  At its essence if there is reason to believe a plaintiff corporation is unable to pay a defendant’s costs, with the defendant having the onus, the court will consider such an order.

Here the plaintiff made the defendants case.  The reason the corporation did not have legal representation was that it couldn’t afford it.  That may have helped it in trying to fend off the stay application but was ammunition for the second application. And so it went.