Northern Territory of Australia v Alice Springs Abattoirs Pty Ltd [1996] NTSC 32 (15 May 1996)
[2]
COURT
IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA
MASTER COULEHAN
CWDS
Practice and procedure - representation.
Supreme Court Rules, O.1.13.
Bay Marine Pty Ltd v Clayton Country Properties Pty Ltd (1986) 6
NSWLR 104 considered.
HRNG
DARWIN,
15 May 1996
#DATE 15:5:1996
#ADD 13:2:1997
Appearances not available
ORDER
Application allowed.
JUDGE1
MASTER COULEHAN
The plaintiff�s claim
is for the balance of moneys payable under a
mortgage of leasehold land in Alice Springs. An appearance has been
filed by G P Whitaker,
the Managing Director of the defendant, giving
an address for service in New South Wales (cf O. 6.05).
Mr Whitaker has also filed
a defence and counterclaim and an
application by summons to transfer the proceeding. The plaintiff has
applied to have these documents
set aside and for other consequential
orders.
The basis for the plaintiff�s application is O.1.13 which
provides:-
�Except
where otherwise provided by or under an Act or this
Chapter, a corporation, whether or not a party, shall not
take a step in
a proceeding except by a solicitor.�
Mr Milson Hayward appeared on the hearing of the plaintiff�s
application. Although not an
officer of the defendant he was given
leave to be heard. He has been subsequently appointed secretary of the
defendant.
In answer
to the plaintiff�s application, the defendant seeks a
dispensation pursuant to O.2.04, the grounds being its inability to
fund legal
representation.
Mr Whitaker deposes in his affidavit sworn 11 April 1996 that the
only asset of the defendant is land in Alice
Springs which is the
subject of the plaintiff�s mortgage.
It appears that the defendant is not trading and that it is unable
to
obtain a loan. It is also alleged that the plaintiff has refused
its consent to a second mortgage.
The equivalent rule in New
South Wales was considered in Bay Marine
Pty Ltd v Clayton Country Properties Pty Ltd (1986) 6 NSWLR 104. It
was held that there
must be exceptional circumstances to justify a
dispensation. There appears to be two predominant considerations, the
requirement
that persons appearing before the Court have the requisite
authority and may be bound by its orders and the Court�s need for
competent
assistance (see also Hubbard Association of Scientologists
International v Anderson and Just [1972] VicRp 66; (1972) VR 577 and Molinar
Engineering Pty Ltd v Herald & Weekly Times Ltd [1984] FCA 126; (1984) 1 FCR 455).
The question of Mr Hayward�s authority to bind the defendant may be
capable of resolution. However, there are other matters which
require
consideration.
I am not satisfied as to the inability of the defendant to pay for
legal representation. The land owned
by the defendant is valued at
$1,000,000; and, while there is evidence of the defendant�s inability
to obtain a loan, there is no
evidence as to the means of the
shareholders who may benefit from the proceeding. In particular there
is no evidence as to the capacity
of Wales Australian Resources Pty
Ltd, the holding company, to finance this litigation.
Further, there is evidence that the defendant
is being legally
represented in another proceeding before this Court. There has been no
explanation as to how this proceeding is
being funded.
Another consideration is that the defendant�s counterclaim is for
a
substantial sum and appears to raise difficult
issues. This claim, and
the application to transfer the proceeding, would appear to be of
sufficient substance to necessitate properly
qualified assistance to
the Court.
I am not satisfied that there are exceptional circumstances which
warrant a dispensation of
the requirements of O.1.13. It is ordered as
follows:-
The defendant�s summons filed on 18 March 1996 be set
aside.
The defendant�s defence and counterclaim filed 20 March
1996 be set aside.
3. The defendant take no further steps in the proceeding
except by a solicitor.