It is also relevant to refer to r 1 of Pt 11 which, so far as is relevant provides, that subject to r 1A any person may enter an appearance and may defend proceedings by a solicitor or in person.
12 The applicant submits that the Court has an overriding inherent jurisdiction to supervise the conduct of litigation which would extend to prohibiting a corporation being represented by a director if the interest of justice required it. Reliance was placed on, for example, Grimwade v Meagher [1995] 1 VR 446 which held that the Court has inherent jurisdiction to ensure the due administration of justice and to protect the integrity of the judicial process and, as part of that jurisdiction, to prevent a member of counsel appearing for a particular party in order that justice should not only be done but be seen to be done. In what was described as the unique, extraordinary and highly exceptional circumstances of the case, it was found that there was a real and sensible risk of a lack of objectivity by the first defendant which led the Court to exercise its inherent jurisdiction and make an order restraining the first defendant from appearing as counsel in the proceedings.
13 Reference was also made to Bhagat v Global Custodians Limited (No 1) [2001] NSWSC 720 where Young CJ In Equity recognised that the Court has an overriding inherent jurisdiction to supervise the conduct of litigation and may exercise that power and prohibit counsel from appearing in a particular case where it appears that the conduct of counsel outside the Court might have a bearing on the conduct of it. He referred to Grimwade but came to a different conclusion in the circumstances of the case before him. He made plain the underlying basis of the rule and said:
"I fully understand the rule that barristers and solicitors who have personal involvement in litigation should, as a general rule, step aside as they do not have the independence."
14 Reference was also made to Damjanovic v Maley (2002) 55 NSWLR 149 in which the Court of Appeal explains the principles relevant to the refusal of leave to an unqualified person to represent a party in proceedings in the Courts.
15 Reference was also made to cases decided prior to the amendment of the Supreme Court Rules which led to the inclusion of r 1A on 23 May 1997. These dealt with the question whether a corporation should be permitted to carry on proceedings otherwise than by a solicitor.
16 It seems clear to me that upon the proper construction of the whole of r 1A, this application must be refused. Sub r 2 authorises a director to appear for and/or defend proceedings in which the corporation is a party. Importantly, sub r 6 equates the corporation with a litigant in person so that in a practical sense the director authorised to represent a corporation is to be regarded as having as much entitlement to carry on the proceedings as has a litigant in person.
17 It seems to me that it follows that considerations of personal involvement, lack of objectivity and/or competence and/or understanding of what might be expected of a qualified person are not grounds for disqualification, and thus the considerations which led to the decisions in cases such as Grimwade and Damjanovic would not apply to a situation expressly allowed by r 1A, namely that a director who is unqualified may act as the corporation's representative.
18 It may be that the amendment was made with regard to the common experience that in very many cases the corporation for which the director appears is his or her alter-ego. This may explain why sub r 6 provides, in effect, that such director should have the same standing as a litigant in person. The present rule expressly allows for an unqualified person to represent a corporation with all the consequences that follow.
19 I would think that the matters relied upon by the applicant in this case may well provide grounds for disqualification of one who may be described as an offending representative in cases where counsel or solicitor are acting or where leave is sought by an unqualified person to represent, or to continue to represent, a party. It may be that Pt 11 r 1A does not affect the inherent jurisdiction of the Court to which I have referred which may be exercised in the proper case. I would accept that the jurisdiction remains and that the effect of this rule is not to oust it. Without finally deciding the matter I would conclude that support for that proposition is found in the language of r 1A sub r 2 in which the opening phrase is "A corporation may enter an appearance", which, when read with sub r 1, may be understood as preserving the Court's discretion.
20 In light of sub r 6 it is somewhat difficult to envisage the circumstances in which the discretion would be exercised to prevent an authorised director from appearing or continuing to appear. Nevertheless, and assuming special or extraordinary circumstances would be required for the exercise of jurisdiction where a party is self represented, I would not consider that the matters relied upon by the applicants in this case would constitute sufficient circumstances to justify the order sought. It is the sad experience of the Courts and of opposing parties that such matters as are relied upon in this case are often the ordinary incidents of cases involving litigants in person which require the Court to manage them as best it can. In saying that I make no finding or cast no reflection upon Mr Preston in this case.
21 In any event, and assuming jurisdiction in an appropriate case to prohibit a director from continuing to appear for a corporation, matters which I regard as determinative of this application in all the circumstances are the statement made by Mr Preston in open Court today that the defendants will be represented by qualified persons at the hearing, and the contents of paragraph 7 of his written submissions in which he states that:
"The defendants …
(b) Will definitely employ a solicitor and a barrister only after the appropriate timing best suitable to the proceeding, usually after all the facts are known and all rubbish has been extracted and the real issues are known, which is usually after discovery.
(c) Will definitely not appear at a hearing of the main case without a solicitor or a barrister, because we are aware of `a person who is his own solicitor is a fool".
22 As I have indicated, in my view the present state of the evidence does not establish sufficient grounds to justify the order sought. It may be that between now and the time of the hearing Mr Preston's conduct in representing the defendants may be shown to be such that the interests of justice require the Court's intervention so as to deprive them of his representation. However, that situation has not yet arisen.
23 Accordingly, the order is that paragraph 1 of the Further Amended Notice of Motion be refused.
24 I also refuse the ancillary orders sought in paragraphs 1B, 1C and 1D of the Further Amended Notice of Motion.
25 In my opinion, the just order to make in all of the circumstances is that each of the parties bear its costs of and incidental to this notice of motion. It is apparent that the matter which took up the time in court related to an issue on which the plaintiffs failed. It is certainly arguable that the orders sought in paragraphs 2 to 5 of the motion may not have been necessary but for the failure to provide adequate particulars by the defendants prior to the filing of the notice of motion. It does seem to me, however, that when one endeavours to balance the successes and failures of the parties in relation to the relief sought in this notice of motion and having regard to the circumstances in which it was brought that the order which should be made is that each party bear it's own costs, and I so order.
Orders
26 (1) The Further Amended Notice of Motion be dismissed.