When will a company be permitted to litigate without legal representation?

Update, 24 February 2010: An appeal failed: [2010] VSCA 17.

Original post: Rule 1.17(1) of the Supreme Court Rules (the County Court’s and Magistrates’ Court’s rules are to similar effect) reads as follows:

“Except where otherwise provided by or under any Act or these Rules, a corporation, whether or not a party, shall not take any step in a proceeding save by a solicitor.”

In Worldwide Enterprises Pty Ltd v Silberman [2009] VSC 165, Justice Forrest considered an application by a solicitor for a stay of his unrepresented former client’s case against him unless the former client, which was a company, appointed lawyers to act for it.  The proceeding was an appeal to the Supreme Court from a decision of VCAT’s Legal Practice List, where Mr Goodman had represented himself (see [2008] VCAT 683, [2008] VCAT 836, and [2008] VCAT 1345). The application succeeded. On the law, his Honour said:

’16 The rule itself embodies the common law principle which has been in existence for many years. Its rationale was explained by the New South Wales Court of Appeal in Scotts Head Developments Pty Ltd v Pallisar Pty Ltd[2] in which Mahoney AP said of the equivalent New South Wales rule:

“This rule represents the established law. This court, as a superior court, has a discretion to determine who will be allowed to appear before it. However, it has long adopted the general rule that it will not allow an appearance by a person who has not been admitted to practise before it. This accords with the long established practice of superior courts in Australia and in England.”

His Honour then went on to explain the basis for the rule of practice and said as follows (omitting reference to authorities):

“The rule of practice which the court has adopted whereby appearance is limited to persons admitted to practise before the court is not based on technicalities. It has long been regarded as based on considerations central to the proper administration of justice and the protection of the parties in the litigation. First, the court has emphasised the importance, for the administration of justice, of the fact that those permitted to appear before it owe a responsibility to the court to ensure that the court is properly informed and not misled. …

Second, the court has regard to the possibility of unqualified or untrained advocates interfering with the course of the proceeding before the court and causing loss to the parties involved. … Experience has shown that a proceeding conducted by a person unskilled in advocacy tends to last longer and to cost more. In determining whether to allow such an advocate to appear, the court must have regard not merely to the position of the party for whom he seeks to appear, but also to that of the other party. The interest of the defendant in having the proceeding dealt with without unnecessary delay and cost is one which, in my opinion, is to be borne in mind.

Third, there remains the public interest in the effective, efficient and timeous disposal of litigation. The administration of justice requires that full assistance be available to the court in determining the issues of fact and law which come before it. The isolation of issues and the presentation of the consideration which support one answer rather than another are things best done by a person experienced in such matters. Where one party is represented by an advocate less than appropriately skilled, the duty of the court to act with fairness and impartiality between the parties is more difficult and may in some cases be compromised. The court cannot adopt the role of advocate for one party or the other. Ordinarily it cannot undertake investigation of matters beyond the evidence formally before it. …”[3]

17 No doubt, these considerations underpinned the following statement of the Court of Appeal in this State as to the force of the rule:

“The law is clear. There are sound policy reasons why a corporation ought be represented by a lawyer. Nothing has been submitted in this hearing to warrant variation or exemption from that policy. … The rule is clear.”[4]

[2] Unreported, New South Wales Court of Appeal, 6 September 1994.

[3] See also Bay Marine Pty Ltd v Clayton County Properties Pty Ltd (1986) 8 NSWLR 104.

[4] Lettieri v Strangio & Ors [2008] VSCA 205 [18].’

After some further analysis, his Honour provided the following distillation of the relevant law, at para [20]:

‘(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;

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

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

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

(vi) The stage which the case has reached;

(vii) 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.’

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