Worldwide Enterprises Pty Ltd v Silberman & Anor [2010] VSCA 17

Court of Appeal (Vic)|2010-02-23|Before: WEINBERG and BONGIORNO JJA

PRACTICE & PROCEDURE - Appeal from decision of VCAT to judge in Trial Division - Application pursuant to r 1.17(1) of Supreme Court (General Civil Procedure) Rules 2005 by lay director for leave to appear on behalf of applicant company - Application refused - Proceedings stayed pending appointment of solicitor - Company impecunious - Security for costs ordered - Appeal - Whether stay pursuant to r 1.17(1) final or interlocutory in character - Relationship of r 1.17(1) with ss 236 and 237 of Corporations Act 2001 (Cth) - Whether primary judge exercised discretion erroneously - Claim of bias on part of primary judge - Application for leave to appeal against costs order out of time - Application for leave to appeal against setting aside of subpoena as 'fishing expedition' out of time - All applications for leave to appeal dismissed.

Mr M Goodman was given limited leave to appear on behalf of the Applicant

**1 The applicant, Worldwide Enterprises Pty Ltd, seeks leave to appeal from a judgment of J. Forrest J, delivered on 1 May 2009, in which his Honour, pursuant to r 1.17(1) of the Supreme Court (General Civil Procedure) Rules 2005 ('the Rules'), stayed the applicant's appeal from a decision at the Victorian Civil and Administrative Tribunal ('VCAT') until such time as it was represented by a solicitor. The applicant also seeks leave to appeal from his Honour's order made that day that it give security for costs in the amount of $10,000.

2 In addition, the applicant seeks leave to appeal from an order setting aside a subpoena made by his Honour on 5 February 2009. Finally, it seeks leave to appeal, as well, from a costs order arising out of an adjournment of the proceeding made by Harper J on 6 October 2008. In each of the latter two cases, the applicant is well out of time.

3 This matter has had a long and somewhat tortured history. The applicant was involved in a County Court proceeding which settled, after a five day hearing, in 2006. Subsequently, the applicant and its solicitor (the first respondent), as well as the applicant and its barrister (the second respondent), had a falling out, and proceedings ensued in VCAT. These proceedings concerned the conduct of the County Court hearing, and the issue of outstanding fees.

4 Following an application by the respondents, VCAT determined that it had no jurisdiction over that part of the applicant's claim that related to pecuniary losses. Accordingly, that aspect of the claim was struck out. The fees dispute remained on foot, but the applicant was ordered to provide security for costs in relation to that matter.

5 The applicant then sought leave to appeal against the VCAT decision. However, on 22 August 2008, Daly AsJ refused leave. An appeal was instituted against her Honour's decision. Pending the hearing of that appeal, the respondents sought orders that it be stayed unless the applicant retained a solicitor, as required by r 1.17(1) of the Rules. In addition, the second respondent sought security for costs in relation to the proposed appeal.

6 Rule 1.17(1) is in the following terms:**

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.

**7 It was common ground before J. Forrest J, and also before us, that the applicant has no assets and is effectively insolvent. It was that circumstance that led Mr Morris Goodman, the applicant's sole director and shareholder, to seek leave to represent the company in the hearing of the appeal before his Honour.

8 It seems that Daly AsJ had earlier given Mr Goodman limited leave to appear on behalf of the applicant when the matter came before her in 2008. As her reasons for judgment refusing leave to appeal make clear, that leave was granted to Mr Goodman to represent the applicant for the purposes of the leave application only. Her Honour expressly reserved liberty to the respondents to apply to renew the stay application in the future, leaving the question of representation of the applicant to the judge who might hear the appeal, should leave to appeal be granted. In other words, Daly AsJ gave leave to Mr Goodman to represent the applicant on quite specific and narrow terms.

9 On 19 September 2008, the respondents, by summons, sought an order that the proposed appeal be permanently stayed unless and until the applicant retained the services of a legal practitioner. On 6 October 2008, the summons came before Harper J in the Practice Court. On that day Mr Goodman was once again given leave to appear on behalf of the applicant, but only for the limited purpose of opposing the application under r 1.17(1), and a further application seeking security of costs.

10 The matter proceeded on the basis that such security was resisted because, so it was said, the applicant had no means of meeting any such order. However, there was insufficient material before the Court, on that day, to enable any assessment to be made as to the applicant's financial position. The matter was therefore adjourned. The applicant was ordered to pay the respondents' costs of that day in the sum of $3750, an order that is now challenged.

11 On 19 January 2009, the second respondent filed a further summons seeking security for costs in relation to the applicant's appeal. Mr Goodman filed two affidavits in opposition.

12 On 30 January 2009, the application for a stay, and the application for security for costs, both came before J. Forrest J in the Practice Court. The matter carried over to 5 February 2009, and then again to 17 April 2009. On 5 February 2009, his Honour set aside a subpoena seeking documents from the respondents, said to be relevant to the question of security for costs. His Honour did so, essentially it would seem, on the basis that the subpoena was a 'fishing expedition'. As previously indicated, that decision is also now challenged.

13 In his reasons for judgment, delivered on 1 May 2009, J. Forrest J noted the limited basis upon which Daly AsJ had determined that Mr Goodman should be permitted to appear on behalf of the applicant in the proceeding before her. He noted also that her Honour had reserved liberty to the respondents to apply to renew the stay application in the future. She had done so on the basis that the leave application, which was before her, involved only a preliminary stage of the proceeding of an appeal from a jurisdiction where lay representation was common. She also had in mind what she had been told of the applicant's impecunious situation.

14 Notwithstanding the conditional basis upon which Daly AsJ had granted leave to Mr Goodman to appear, he contended before J. Forrest J, and before this Court, that the application by the respondents for a permanent stay represented some form of 'collateral attack' upon her Honour's earlier order. This was said to be impermissible. J. Forrest J rejected that contention. He was plainly correct in doing so. His Honour was in no way bound by Daly AsJ's decision.

15 Mr Goodman's first submission before this Court was that his Honour's decision to refuse him leave to appear on behalf of the applicant was a final decision, and not interlocutory in character. In that event, there would be an appeal as of right.

16 In my view, the authorities make it plain that a decision of this character is in no relevant sense 'final'. Whether a judgment or order is final or interlocutory depends on the nature of the order made. The test is whether, as made, it finally disposes of the rights of the parties.[1] That requires the Court to look at the consequences of the order itself, and ask whether it finally determines the rights of the parties in a principal cause pending between them. It is not enough to ask simply whether it finally determines the actual application out of which it arises because, subject to the possibility of appeal, virtually every order meets that description. Regard must be had to the legal, rather than the practical effect of the decision.[2]

17 I have no doubt that the order staying this proceeding unless the applicant retained a qualified legal practitioner should be characterised as interlocutory rather than final. That view accords with the authorities which hold that an order staying a proceeding on the ground that it is frivolous, vexatious and an abuse of the process of the Court, is interlocutory, despite the finality that it brings to the proceeding.[3] Leave to appeal is therefore required.

18 The principles under which such leave will be granted are well settled.[4] The general rule is that leave will be refused unless it can be shown that the decision below was wrong, or at least attended with sufficient doubt to justify the grant of leave, and that substantial injustice would be done if the decision were to stand. In effect, the question whether a decision is attended with sufficient doubt to warrant the grant of leave to appeal is the same as whether the proposed appeal has sufficient prospects of success.[5]

19 Before this Court, Mr Goodman submitted that, as a matter of construction, r 1.17(1) had no application to this case. He referred to that part of the Rule which reads: 'Except where otherwise provided by or under any Act'. He argued that ss 236 and 237 of the Corporations Act 2001 (Cth) were inconsistent with r 1.17(1), and therefore did 'otherwise provide'.

20 Sections 236 and 237 fall within Part 2F.1A of the Act. These deal with what are termed 'derivative actions'. They are derivative in the sense that the person or persons who bring the action rely, not on a cause of action belonging to them personally, but rather on one belonging to some other entity. In company law a derivative action is brought by a member or members based on a cause of action vested in the company alone rather than a cause of action belonging to the plaintiff or plaintiffs personally.

21 Section 236 provides:**

(1) A person may bring proceedings on behalf of a company, or intervene in any proceedings to which the company is a party for the purpose of taking responsibility on behalf of the company for those proceedings, or for a particular step in those proceedings (for example, compromising or settling them), if:

(a) the person is:

(i) a member, former member, or person entitled to be registered as a member, of the company or of a related body corporate; or

(ii) an officer or former officer of the company; and

(b) the person is acting with leave granted under section 237.

(2) Proceedings brought on behalf of a company must be brought in the company's name.

(3) The right of a person at general law to bring, or intervene in, proceedings on behalf of a company is abolished.

22 Section 237(1) allows a person to apply for leave to bring, or intervene in, proceedings. The section goes on to provide:

(2) The Court must grant the application if it is satisfied that:

(a) it is probable that the company will not itself bring the proceedings, or properly take responsibility for them, or for the steps in them; and

(b) the applicant is acting in good faith; and

(c) it is in the best interests of the company that the applicant be granted leave; and

(d) if the applicant is applying for leave to bring proceedings - there is a serious question to be tried; and

(e) either:

(i) at least 14 days before making the application, the applicant gave written notice to the company of the intention to apply for leave and of the reasons for applying; or

(ii) it is appropriate to grant leave even though subparagraph (i) is not satisfied.

**23 I do not read r 1.17(1) as being in any way in conflict with ss 236 and 237. Section 236 provides for a right to bring or intervene in proceedings, but is predicated upon leave being granted under s 237. That section speaks of the company not itself bringing the proceedings, or taking responsibility for them, and requires the Court to be satisfied that it is in the best interests of the company for that course to be taken. Leave to bring proceedings on behalf of a company, or intervene in any proceedings to which the company is a party, is required because, where the legal proceedings relate to a breach of duty by an officer, the duty is owed to the company, and the company alone would normally be expected to enforce that duty. However, if it is the directors who are alleged to have breached their duties to the company, and they constitute a majority of the Board, it is hardly likely that they will have the company commence proceedings against them.

24 It is true that Part 2F.1A extends to legal proceedings brought by the company against a third party, or brought by a third party against the company. In that sense, it extends beyond derivative actions.

25 The present case has nothing whatever to do with these provisions. Part 2F.1A says nothing about the circumstances under which an unqualified person may be given leave to appear, as an advocate in legal proceedings, on behalf of a company. That remains a matter for the Court, in its discretion pursuant to r 1.17(1), just as it would be if any lay individual sought to appear on behalf of a party to a proceeding. It follows that I reject Mr Goodman's first submission to the effect that r 1.17(1) must be read as being subject to ss 236 and 237, and has in that sense been relevantly abrogated.

26 I turn then to the question whether his Honour's discretion miscarried when he determined that Mr Goodman should not be permitted to represent the applicant on the proposed appeal. His Honour commenced by referring to r 1.17(1). He then referred to Scotts Head Developments Pty Ltd v Pallisar Pty Ltd,[6] an unreported decision of the New South Wales Court of Appeal, governing the operation of the equivalent Rule in that State.

27 Mr Goodman complained that his Honour's reference to Scotts Head Developments Pty Ltd, in his reasons for judgment, constituted both evidence of bias on his Honour's part, and a denial of procedural fairness. He submitted that his Honour ought not to have referred to any authority, still less an unreported decision, without affording the applicant the opportunity to be heard regarding its effect.

28 That complaint is without substance. First, there is a dispute as to whether a copy of Scotts Head Developments Pty Ltd was, in fact, made available to Mr Goodman prior to and during the course of the hearing before his Honour. Counsel who appeared for the respondents below, and also before us, was adamant that she had personally handed a copy of that judgment to Mr Goodman on 17 April 2009, the last day of the hearing. She also said that she was certain that the case had been openly canvassed before his Honour. In addition, she maintained that there had been correspondence between the respondents' solicitors and Mr Goodman as far back as February 2009 in which his attention was specifically drawn to Scotts Head Developments Pty Ltd, and the fact that the respondents proposed to rely upon that case.

29 Mr Goodman is equally adamant that the first he ever heard of Scotts Head Developments Pty Ltd was after the 17 April 2009, when he received a letter from the respondents' solicitors, dated 16 April 2009, containing a reference to that decision. He denied having been handed a copy of the unreported case in Court on 17 April, and insisted that there had been no discussion whatsoever of the relevant principles therein laid down during the course of argument.[7]

30 His Honour cited from Scotts Head Developments Pty Ltd at some length.[8] However, it should be noted that the passages extracted from that case were of a general nature, stating only the broadest of common law principles which have been in existence for many years.

31 Mr Goodman submitted, before us, that, had he known that his Honour was to place reliance upon that judgment, he could have distinguished it, or drawn attention to other passages in the judgment which would have been of assistance to the applicant's case. However, it is of some importance to note that Mr Goodman did not challenge the correctness of any statements of law expounded in Scotts Head Developments Pty Ltd. Nor could he. The rationale for the existence of r 1.17(1), or rather its New South Wales equivalent, was set out in that case in wholly unexceptionable terms.

32 Of course r 1.17(1) is not absolute. Where circumstances warrant, a company may be permitted to take a step in the proceeding without being represented by a qualified practitioner. The effect of a rule such as r 1.17(1) is merely that a company does not have the same unconditional right of access to the courts as a natural person. As a result a company may be put in the position, at trial, of not being represented by an advocate. A court can allow any person it considers to be a 'proper person' to address argument before it. That includes an unqualified person. However, as a general rule, the Court must be satisfied that the person proposed to represent the company has authority to act for it.[9] In addition, the person ought to be a director, officer or regular employee of the corporation.[10]

33 Mr Goodman submitted that the applicant's case was relevantly different from Scotts Head Developments Pty Ltd because not only was he its sole director and shareholder, but in addition he had express authority from the applicant to act on its behalf. He submitted that once that formal authority had been demonstrated, it necessarily followed that leave to appear on behalf of the applicant had to be granted.

34 In my opinion, there is nothing in Scotts Head Developments Pty Ltd that suggests that merely because such authority has been procured, r 1.17(1) no longer has any application. Scotts Head Developments Pty Ltd does suggest that formal authority to act may be a necessary, but not sufficient, condition for the grant of leave to appear. Plainly, there are other considerations. These include the complexity of the dispute, and the capacity of the proposed representative to conduct the case in a sensible manner on behalf of the company. Otherwise, any sole director and shareholder, such as Mr Goodman, could easily procure an authority from his or her company, and thereby circumvent the requirements of the Rule.

35 Clearly r 1.17(1) is, as Scotts Head Developments Pty Ltd makes clear, intended to promote the proper administration of justice. The Court must have regard to the difficulties posed when a lay individual endeavours to conduct a complex piece of litigation. Experience has shown that cases conducted by litigants in person, particularly those who happen to be of a querulous disposition as some such litigants are, can be very protracted. This means that valuable court time is wasted, at the expense of other prospective litigants who are denied timely resolution of their disputes. As well, significant costs are likely to be unnecessarily incurred.

36 In addition, where a lay person appears on behalf of a company, the Court is deprived of the assistance it might otherwise receive, and to which it might be thought to be entitled. Also, a lay advocate is not subject to the ethical precepts that apply to legal practitioners who are entitled to address the Court, but who bring with them particular responsibilities when doing so. That may create its own problems.

37 In determining whether to allow an unqualified individual to represent a corporate litigant, the Court must have regard not merely to that party's interests, but also those of other parties.

38 As his Honour correctly noted, this Court, in Lettieri v Strangio,[11] explained the force of the Rule in the following terms:**

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.[12]

**39 J. Forrest J recognised, of course, that r 1.17(1) is not absolute. It is expressed as being subject to other provisions of the Rules. These necessarily include r 2.04, which enables the Court to dispense with compliance with any of the requirements of the Rules. It follows that the Court can dispense with the requirements of r 1.17(1), in an appropriate case.

40 However, the starting point must be, as his Honour correctly observed, that a company will not usually be permitted to appear without a legal representative. It will require leave to do so.

41 In determining whether there are circumstances which warrant a departure from the Rule, his Honour singled out the following matters as relevant:**

(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;

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

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

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

(vii) the stage which the case has reached;

(viii) whether the defendant is likely to expend more funds in defending the claim absent a solicitor acting for the company; and

(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.[13]

**42 His Honour went on to say that his reading of the Court file, and the affidavits filed on behalf of the parties, demonstrated that Mr Goodman's past conduct of the proceeding on behalf of the applicant had resulted in an enormous waste of time and effort. He gave as an example a raft of asserted questions of law, numbering over 60, and delivered the day before the hearing, as well as voluminous documentation upon which Mr Goodman sought to rely.

43 My reading of the material, and my hearing of Mr Goodman's oral submissions before this Court, confirm his Honour's assessment. Much of what Mr Goodman argued before us was difficult to follow, and in some cases almost incomprehensible. That is not his fault, but it represents a clear illustration of just how challenging the conduct of this case would be if he conducted it on behalf of the applicant. Many of his submissions, though extraordinarily detailed, and obviously the product of much endeavour, reflect a complete misapprehension on his part of basic legal principle. Moreover, he has little grasp of how to present factual material.

44 Mr Goodman seemed to me to be quite incapable of distinguishing between that which might be relevant, and that which patently was not. Many of his contentions, and they number literally in the dozens, are unstructured. Some of them are of a generality that would make them almost impossible to meet. His references to case law, cited indiscriminately and at enormous length, were of no assistance. In my view, it would be unfair to the respondents, and bordering on the oppressive, to require them to confront submissions presented in this form.

45 In addition, some of Mr Goodman's allegations are clearly of a scandalous nature. These include claims of actual bias on the part of a number of judges of this Court, for which he provided not a scintilla of evidence, or factual support. Nonetheless, based upon my observations of him during the course of argument, it would take an inordinate amount of time to go through each of these allegations with him, and sort out what can legitimately be advanced, and what should be struck out.

46 I note that Mr Goodman spoke for some hours in support of his application before us. He complained, at the end of that period, that the time he had been allocated had not been sufficient to enable him to outline even in the broadest of terms the nature of the applicant's case, or why he personally should be permitted to present it. There was no substance to that complaint. The matter before this Court was simply a leave application, and ought to have been dealt with in a fraction of the time that was in fact made available.

47 J. Forrest J also had regard to the nature of the applicant's claim, and its prospects of success on the appeal. It appears that the applicant contends that its case was mishandled, in the County Court, by the respondents. They in turn rely upon what may be described as the 'advocate's immunity', the existence of which was confirmed by the High Court in D'Orta-Ekenaike v Victoria Legal Aid.[14]

48 VCAT concluded that it had no jurisdiction to entertain that aspect of the dispute, separate from the applicant's claim that it had been overcharged professional fees. Daly AsJ, in refusing leave to appeal, agreed. J. Forrest J without expressing any concluded view, noted simply that there were significant legal obstacles facing the prosecution of the appeal against her Honour's orders.

49 Before us, Mr Goodman submitted that his Honour had misunderstood the applicant's claim of pecuniary loss against the respondents. He repeatedly disavowed any allegation of negligence, but purported instead to rely upon some general notion of misconduct on their part. When pressed, he particularised that misconduct as having failed to give proper attention to the applicant's case, coupled with having vastly overcharged it. He also claimed to rely upon the provisions of the Fair Trading Act 1999 (Vic) which, he contended, took the respondents outside the protection of D'Orta-Ekenaike.

50 I must say that I have real doubts as to the merits of the proposed appeal. However, it is unnecessary to delve further into that question. It is sufficient to observe simply that the 'advocate's immunity', upheld by the High Court, may well extend beyond claims of negligence.[15] In my opinion, his Honour approached this matter correctly, and in accordance with proper principle.

51 His Honour accepted that the applicant was effectively insolvent. He regarded that as a factor in favour of permitting Mr Goodman to act on its behalf, as indeed it was. However, he concluded that, weighing all relevant matters, nothing had been demonstrated as to why there should be a departure from r 1.17(1).

52 His Honour's decision to refuse Mr Goodman leave to appear on behalf of the applicant involved the exercise of a discretion. In accordance with well established principle, it would not be sufficient for the applicant, in challenging the exercise of that discretion, to persuade this Court that it might have been exercised differently.

53 Perhaps recognising that fact, Mr Goodman submitted that his Honour's discretion had miscarried. In support of that contention, he relied upon bias, both actual and apprehended. However, apart from his claim that his Honour ought not to have had regard to the unreported decision of the New South Wales Court of Appeal, and a further claim that his Honour had in the past been briefed on a regular basis by the solicitors now acting for the first respondent, neither of which could give rise to any finding of bias, he advanced nothing to support that claim. I reject the allegation of bias.

54 I am not persuaded that any of the matters that his Honour took into account, in the exercise of his discretion, were irrelevant. Nor am I persuaded that he failed to take into account any matter to which he was required to have regard.

55 The applicant bore the onus of persuading his Honour that Mr Goodman should be given leave to appear on its behalf. No doubt, there are some judges who might have exercised their discretion in favour of granting such leave, particularly given that the applicant has no assets, and would find it difficult, if not impossible, to afford legal representation. However, his Honour was not persuaded to adopt that course, having regard in particular to the difficulties presented by the proposed appeal, and Mr Goodman's obvious inability to conduct the proceeding sensibly, and in a coherent manner. I am not persuaded that his Honour's conclusion was not reasonably open.

56 There are insufficient prospects of successfully challenging his Honour's decision to warrant the grant of leave to appeal. Accordingly, there is no basis for the grant of leave in relation to the decision regarding the order that the proceeding be stayed.

57 The other matter upon which leave to appeal is sought arises out of the order which his Honour made for security for costs. Here the learned primary judge referred to the relevant provisions, r 62.02(1)(b) and s 1335(1) of the Corporations Act 2001 (Cth). He also cited the recent decision of this Court in Livingspring Pty Ltd v Kliger Partners,[16] which made it clear that the question to be considered when determining whether to order security for costs was whether, if unsuccessful, the corporation would be unable to meet the defendant's costs. In that regard, the burden rested upon those seeking such security.

58 His Honour concluded that this burden had been discharged. The applicant had no assets. In addition, the four months which had elapsed from the date of Daly AsJ's decision before security was sought by the second respondent did not constitute unnecessary delay, and had led to no prejudice.

59 Mr Goodman submitted that the period should be viewed as nine months rather than four months, given that there was a second application for security by the second respondent. Even if that were so, I would not interfere with the exercise of his Honour's discretion on that basis. The applicant was at all relevant times aware that security was being sought.

60 Mr Goodman submitted that it was relevant when considering whether to order security for costs that the respondents themselves had contributed to the applicant's ultimate impecuniosity. However, as his Honour correctly observed, there was nothing to substantiate that contention. Moreover, as I have noted, the merits of the proposed appeal were doubtful, to say the least. In those circumstances, a sum of $10,000 as security for costs was well within the scope of a sound exercise of judicial discretion.

61 Mr Goodman further submitted that his Honour erred in requiring him to provide security for costs as the respondents were both covered by professional indemnity insurance. His Honour again, correctly in my opinion, relied on Livingspring where it was said that the fact that a defendant is insured is irrelevant to the issue of security for costs.

We can see no reason in principle why an insured defendant should be in any different position from an uninsured defendant for this purpose. Let it be assumed that the insurer has agreed to indemnify the defendant against the plaintiff's claims. The insurer should be regarded as having exactly the same entitlement as the insured defendant to protection against the risk that the plaintiff will be unable to meet an adverse costs order.[17]

**63 Mr Goodman took issue with his Honour's reference to Livingspring, and his quoting of the above passage, on the basis that he was not given an opportunity to distinguish that case from the current matter. He also claimed that his Honour quoted only selected passages from the judgment, omitting those supposedly more favourable to the applicant.

64 The passage set out above from Livingspring is a general statement of law. It represents the current position for all matters involving security for costs and an insured defendant, regardless of the type of insurance. Nevertheless, it is particularly relevant to the current matter as both cases involve professional indemnity insurance. His Honour was correct in citing the above passage as a statement of the law as it currently stands in Victoria.

65 As I stated in argument, it is common practice for judges to select relevant passages from authoritative cases which expound general statements of law. This is what his Honour did in the current case when quoting from Livingspring, and he was entitled to do so. Regardless, the passages surrounding that set out above simply emphasise the irrelevance of the existence of insurance when it comes to the issue of security for costs.

66 Mr Goodman further argued that his Honour erred in relation to the order for security for costs by having regard to s 1335(1) of the Corporations Act 2001 (Cth). That section provides:**

Where a corporation is plaintiff in any action or other legal proceeding, the court having jurisdiction in the matter may, if it appears by credible testimony that there is reason to believe that the corporation will be unable to pay the costs of the defendant if successful in his, her or its defence, require sufficient security to be given for those costs and stay all proceedings until the security is given.

**67 Mr Goodman argued that his Honour was not entitled to refer to this section because it was not mentioned in the summons seeking security for costs. I reject that submission. We were told from the Bar table that, although the summons did not in terms seek relief under s 1335, that provision was invoked in oral argument. Even if it had not been so invoked, his Honour would have been entitled to have regard to it. His having done so provides no evidence of bias, despite Mr Goodman's assertion to the contrary.

68 Mr Goodman next complained that Harper J had been incorrect in ordering costs against the applicant as a result of the adjournment on 6 October 2008. The present application for leave to appeal (including the application for leave to appeal against the costs order) was filed on 15 May 2009. Applications for leave to appeal against interlocutory decisions, including costs orders,[18] must be made within 14 days of the order being made.[19] This application, insofar as it challenges the costs order, is considerably out of time.

69 In his explanation for the delay, Mr Goodman said that he was waiting for the matter to be finally decided in the Practice Court before he lodged his application. I do not consider that to be an adequate explanation. In any event, it is rare that an appellate court will interfere with a costs order, particularly one patently made on proper considerations. I would not do so in this case.

70 Mr Goodman further submitted that the costs order should be set aside because, so he claimed, he had sought reasons from Harper J, and these had been refused. Given that it is common practice to order costs against a party who has requested an adjournment, as the applicant did in this case in order to provide information as to its financial position, and thereby rectify its own default, I do not consider it to have been necessary for his Honour to provide detailed reasons for his decision to make such an order. No breach of natural justice occurred as a result.

71 For completeness, Mr Goodman submitted that Harper J provided the respondents with 'legal advice' by suggesting that they make an application for security for costs. I do not accept that characterisation of what his Honour did. It should be noted that the issue of security for costs had been earlier flagged. The applicant went to some length to establish its impecuniosity and, in circumstances where one party has no assets, it is common practice for the other party to seek security for costs.

72 Finally, Mr Goodman complained that J. Forrest J was wrong to set aside a subpoena issued on the applicant's behalf when the matter came before him on 5 February 2009. As noted earlier, the application for leave to appeal against the setting aside of the subpoena was out of time.[20] Mr Goodman submitted that the purpose of the subpoena had been to gain access to documents which proved that the respondents were insured. As I have already indicated, the question of insurance is irrelevant with regard to security for costs. Accordingly, there was no legitimate forensic purpose to be served by the applicant gaining access to those documents. His Honour was correct to set aside the subpoena as a 'fishing expedition'.**

73 It follows, for the reasons set out above, that I would refuse leave to appeal against any of the decisions that were the subject of this application.

**74 I agree with Weinberg JA. For the reasons his Honour gives I would dismiss the application for leave to appeal the decisions of J. Forrest J to refuse him leave to represent the plaintiff in the relevant proceeding, to order security for costs and to set aside his subpoena, and Harper J's decision to order costs against the plaintiff as a result of an adjournment on 6 October 2008.

75 As far as the principal argument is concerned as to his personally representing the plaintiff, I add only the following: the wisdom of the rule requiring a corporation to be represented before the Court by a legal practitioner was amply demonstrated here by the difficulties Mr Goodman had in presenting a concise, focussed argument in what were relatively straightforward matters before this Court. Overall, he addressed the Court for more than three hours on an immense volume of material which he had collected. It is precisely such prolixity which is one of the problems the rule was made to prevent. If it became common, the courts would be unable to cope. Incorporation confers many benefits on those connected with a company. It also imposes some burdens, one of which is that, in litigation, a company must normally be represented by a lawyer.**

[1] Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423; and Port of Melbourne Authority v Anshun Pty Ltd (1) (1980) 147 CLR 35.

[2] Carr v Finance Corp of Aust Ltd (1) [1981] HCA 20; (1981) 147 CLR 246.

[3] Tampion v Anderson [1973] VicRp 82; (1973) 3 ALR 414; and Re Luck [2003] HCA 70; (2003) 203 ALR 1. The exception, not presently relevant, relates to a stay granted on the basis of res judicata. See generally Asic v Lindberg (No 2) [2010] VSCA 19, [21].

[4] Niemann v Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431, 441-2; and Decor Corp Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397.

[5] King v Lintrose Nominees Pty Ltd [2001] VSCA 140; (2001) 4 VR 619.

[6] (unreported, New South Wales Court of Appeal, 6 September 1994) ('Scotts Head Developments Pty Ltd').

[7] For the sake of completeness, it was submitted on behalf of the respondents before us that the letter to which Mr Goodman referred drew attention to two other cases, but not to Scotts Head Developments Pty Ltd.

[8] See Worldwide Enterprises Pty Ltd v Silberman [2009] VSC 165, [16].

[9] Molnar Engineering Pty Ltd v The Herald & Weekly Times Ltd [1984] FCA 126; (1984) 1 FCR 455, 458.

[10] Charles P Kinnell & Co Ltd v Harding, Wace & Co [1918] 1 KB 405.

[13] Worldwide Enterprises Pty Ltd v Silberman [2009] VSC 165, [20].

[14] [2005] HCA 12; (2005) 223 CLR 1 ('D'Orta-Ekenaike').

[15] "An advocate's common law immunity from liability is part of a general immunity from civil liability that attaches to all persons in respect of their participation in proceedings before a court - judges, jurors, court officials, witnesses, parties, counsel and solicitors. The immunity is not confined to defamation; it includes negligence and other forms of civil liability." D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1, 8 (emphasis added, citations omitted).

[16] [2008] VSCA 93 ('Livingspring').

Fair Trading Act 1999(Vic)

Court (General Civil Procedure) Rules 2005

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