A1 for Maintenance Pty Ltd v SG Excellence WA Pty Ltd

1. Compliance with Rule 4.01(2) of the Federal Court Rules in respect of the first respondent be dispensed with until further order so as to allow the first respondent to proceed in its defence of these proceedings by the second respondent appearing on its behalf.
2. The respondents do take all reasonable steps to obtain from Impeccable Carwash documents that meet the descriptions in the order of Gilmour J made 27 November 2017 and do attend the next hearing with those documents obtained.
3. The matter be adjourned until 6 April 2018 at 10.15 am at which time the Court will consider the question of discovery including any orders for third party discovery against Impeccable Carwash.
4. The costs of today be reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLVIN J: 1 On 15 March 2018 I made orders for the second respondent to act on behalf of the first respondent until further order and to provide for production of documents. At the time I indicated that I would publish my reasons for doing so. These are my reasons. 2 Gurdit Singh is the sole director and shareholder of SG Excellence WA Pty Ltd. SG Excellence entered into a car wash and detailing franchise agreement with Geowash Pty Ltd. It was the franchisor under the agreement. 3 The applicant in these proceedings, A1 for Maintenance Pty Ltd claims to be the assignee of the right, title and interest of Geowash in the franchise agreement. 4 In these proceedings, A1 seeks declaratory and injunctive relief and damages against SG Excellence and Mr Singh for alleged breach of the franchise agreement and various statutory provisions including the Australian Consumer Law. 5 A statement of claim has been filed. In May 2017 a defence was filed for both SG Excellence and Mr Singh. At that time, they were both represented by solicitors and the defence is signed by counsel. 6 In July of 2017, solicitors ceased to act for the respondent. Mr Singh now acts on his own behalf. He seeks leave to be allowed to represent SG Excellence. A1 does not make any submissions on the application save to say that it does not accept the evidence of the financial circumstances of the first respondent. 7 Rule 4.01(2) of the Federal Court Rules 2011 (Cth) provides that a corporation must not proceed in the court other than by a lawyer. Rule 1.34 provides that a Court may dispense with compliance with any of the Rules. I treat the application as seeking a dispensation in respect of r 4.01(2) to allow Mr Singh to appear in the future conduct of these proceedings for SG Excellence. 8 On such an application, it is not necessary to establish "special or exceptional circumstances". The Court has power to dispense with the requirement and that power should be exercised by reference to "all relevant considerations". As to these matters, see: Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia (No 12) [2012] FCA 289 at [15]. 9 The cases in which the courts have considered applications to allow an individual to represent a corporation in court proceedings notwithstanding the existence of a court rule requiring the corporation to be legally represented (or requiring leave before the corporation could be represented by a person who is not a legal practitioner) have identified a number of considerations that are relevant: Termi-mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241, Enviro Pak Pty Ltd v New Horticulture Pty Ltd [2013] FCA 306 and Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia (No 12). 10 I have considered those matters and I have decided to dispense with r 4.01(2) in relation to the defence of these proceedings by SG Excellence on the condition that Mr Singh act on behalf of the corporation and that this dispensation continues only until further order by the Court. The relevant considerations that have caused me to dispense with the requirement in this instance are as follows. 11 First, SG Excellence is a company of which Mr Singh is the sole director and shareholder. 12 Second, Mr Singh was the principal person involved in the activities of SG Excellence relating to the franchise agreement and the car wash business being a suburban business in Rockingham. 13 Third, the relevant defences to be advanced on behalf of the corporation have been addressed by lawyers previously acting for the corporation and have been expressed in a defence to which objection has not been taken. 14 Fourth, the only evidence before the Court is that the financial circumstances of SG Excellence are such that it is unable to meet the ongoing costs of engaging solicitors. 15 Fifth, Mr Singh is himself a respondent to the proceedings and is acting on his own behalf as he is entitled to do. The only evidence before the Court is that he has very limited financial resources of his own. The future conduct of the proceedings will need to take account of the fact that Mr Singh is self-represented. 16 Sixth, by making an order until further order it will be possible for me to keep under review, as case manager of these proceedings, the conduct of Mr Singh and to revoke the dispensation if appropriate. 17 The parties were in dispute about matters relating to discovery which has been ordered to be provided by the respondents and in particular whether there has been compliance with those orders. The respondents maintain that the car wash business at the relevant premises is being conducted by a company named Impeccable Carwash and documents of the kind sought are held by that company and not the respondents. 18 Mr Singh says that the sole shareholder and director of that company is Rajinedar Kaur who is his sister and that his sister does not work in the car wash business and he is an employee of that company. 19 In those circumstances, I made orders for the respondents to take reasonable steps to seek production from Impeccable Carwash of documents of the kind previously ordered to be discovered by the respondents and for the matter to be otherwise adjourned for the consideration of further discovery orders. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin.