Ecopave Australia Holdings Pty Ltd v Adbri Masonry Group Pty Ltd

REASONS FOR JUDGMENT 1 There are two interlocutory applications before the Court. The first, filed on 18 May 2012, is an application by the respondent to dismiss the proceeding for want of prosecution and for summary judgment. The second is an application by Mr Eerik Owerhall for leave to dispense with the requirement that the applicant be represented by a lawyer, and instead that Mr Owerhall be permitted to represent the applicant despite not being a lawyer. 2 It is convenient to deal with Mr Owerhall's application first. 3 On 17 June 2011, acting through a firm of Canberra solicitors, the applicant filed the instant proceeding. It is an appeal from the decision of the Registrar of Trademarks given on 27 May 2011 to uphold the opposition to the registration of a trademark. The respondent has filed a notice of contention in respect of the Registrar's decision. 4 On 5 August 2011, the applicant's then solicitors ceased to act for it. Also on 5 August 2011, Buchanan J dismissed the respondent's application for security for costs. He did so chiefly on the basis of the lack of evidence of the impecuniosity of the applicant. See Ecopave Australia Holdings Pty Ltd and Adbri Masonry Group Pty Ltd [2011] FCA 892 esp at [9]. 5 On 2 September 2011, Stone J ordered that the applicant file and serve an address for service no later than 16 September 2011. Her Honour also ordered that the proceeding be transferred to the Victoria District Registry of the Court. 6 On 15 September 2011, Mr Owerhall filed a notice of address for service. The notice gave the relevant address as his residential address in Point Cook, Victoria. It stated that the notice was prepared by "Eerik Owerhall" and contained his telephone number and email address. 7 The matter was docketed to me and came on for a directions hearing on 28 November 2011. On that day, Mr Owerhall sought various interlocutory orders including an order that he be allowed to represent the applicant for the purposes of that interlocutory hearing. The other orders sought concerned matters that were inappropriate to be addressed at the directions hearing, or at all. They included a claim for damages, dismissal of a security for costs application which had already been dismissed and an apology and a restriction on an existing trademark. The making of those claims showed a fundamental lack of understanding by Mr Owerhall about the nature of the current proceeding. The Court ordered that Mr Owerhall's interlocutory application be dismissed. In so doing, the Court informed Mr Owerhall that it was concerned about the lack of detail about the financial position of the applicant and those who stood behind it, amongst other concerns. 8 Mr Owerhall has now applied to be allowed to represent the applicant. This time, he has provided evidence of the consent of the other two directors of the company to him representing the applicant in this proceeding. He has also placed material before the Court showing that all three directors are in receipt of social security payments and have very limited assets. 9 When a corporation is a party to a proceeding the usual position is that it is to be represented by a lawyer. Indeed, the Federal Court Rules say as much, r 4.01 provides: (1) A person may be represented in the Court by a lawyer or may be unrepresented. (2) A corporation must not proceed in the Court other than by a lawyer. The Court may dispense with compliance with this Rule. See r 1.34. 10 As French J (as he then was) said in Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241 at [14]: There is no doubt that those who chose (sic) to carry on their businesses through corporate structures enjoy advantages that those carrying on business on their own account do not enjoy. They also acquire disabilities and obligations. One of the disabilities is that which is imposed by the Rules of Court under consideration in this case. A distinction may be drawn between the case in which the company in question is applicant and that in which it is respondent. In the latter case it may be a more liberal approach to the grant of leave is warranted. 11 Earlier at [13] his Honour said: ……ordinarily a corporation will be required to be represented by a solicitor. Relevant factors for dispensing with that requirement include the financial capacity or lack of capacity of the corporation and those standing behind it, the effect of diverting company resources to paying legal expenses, the nature of the company's undertaking, its financial structure, its ability to retain and pay its staff and the identity and spread of its shareholders. The factual complexities of the case and the capacity of the proposed representative to conduct it effectively are also relevant - VN International Video Pty Ltd v West End HK TVB Video & Others (1996) 4 ACLC 1308. 12 I have sympathy with the position of Mr Owerhall who contends that unless he is permitted to conduct the proceeding, the matter may not be able to progress any further. However, the matter is one of some complexity. From the materials filed in this proceeding from Mr Owerhall so far, and the manner of his conduct of two interlocutory applications, I consider that he will face insuperable difficulties in dealing efficiently with the issues involved in this proceeding, as to both fact and law. Even this morning, on his current application, he sought to have material admitted that was clearly irrelevant. I do not believe that the interests of justice, in this case, would be served by a departure from the usual rule that a corporation is to be represented by a lawyer. 13 Also, in Mr Owerhall's interlocutory application, he seeks pro bono assistance from the Court for the applicant. It never was, and currently is not, the intention of the Court's pro bono assistance scheme to provide pro bono assistance to corporations as distinct from individuals. That application is also refused. 14 I now turn to the respondent's application to dismiss the proceeding for want of prosecution. This interlocutory application preceded Mr Owerhall's in time and may have prompted the filing of Mr Owerhall's application, as counsel for the respondent observes in written submissions. It is apparent that the respondent is vexed by the conduct of Mr Owerhall, or at least complains that it is so vexed by that conduct, especially that consisting of his recent correspondence to the respondent's parent company seeking wide-ranging relief in purported reliance on this proceeding. Notwithstanding such obvious frustration for the respondent, I consider it is appropriate to give the applicant company a last chance, within a strictly controlled time, to secure legal representation for its prosecution of this proceeding. The respondent also sought dismissal of the proceeding under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) although the evidence in support did not adequately address that aspect of the application. Accordingly, the Court will order as follows: 1. Unless the applicant engages a lawyer who files and serves a notice of address for service in accordance with Part 11 of the Rules of Court by 4.00 pm on 28 June 2012, the proceeding stand dismissed. 2. Unless Order 1 is complied with, the applicant pay the respondent's costs of the proceeding, including reserved costs. 3. In the event of compliance with Order 1, the respondent's interlocutory application and the directions hearing is adjourned to 24 July 2012 at 9.00 am. If necessary, a separate hearing on paragraph 2 of the orders sought in that application may be programmed. 4. The respondent's costs of its interlocutory application of 18 May 2012 are reserved. 5. The interlocutory application filed on 21 May 2012 on behalf of the applicant is dismissed with costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall