In the matter of Dennis & Gordana Perica; Crolink Pty Ltd (in liq) & Anor v Official Trustee in Bankruptcy as trustee for Dennis & Gordana Perica; In the matter of Crolink Pty Ltd (in liq); Crolink Pty Ltd (in liq) & Anor v Croatia Sydney Soccer Football Club Ltd & Anor [1998] FCA 659 (27 May 1998)

Last Updated: 16 June 1998

FEDERAL COURT OF AUSTRALIA

CORPORATIONS - leave to corporation in liquidation to conduct litigation without a solicitor - experienced liquidator to act as solicitor - condition that he brief counsel on pleadings, to advise on evidence and on hearing.

Conical Holdings Pty Ltd (In Liq) v Clark, Brownie J, unreported, 6 June 1995 followed

IN THE MATTER OF DENNIS AND GORDANA PERICA; CROLINK PTY LTD (IN LIQUIDATION) & ANOR v OFFICIAL TRUSTEE IN BANKRUPTCY AS TRUSTEE FOR DENNIS AND GORDANA PERICA

IN THE MATTER OF CROLINK PTY LTD (IN LIQUIDATION); CROLINK PTY LTD (IN LIQUIDATION) & ANOR v CROATIA SYDNEY SOCCER FOOTBALL CLUB LTD & ANOR

NG 7517 of 1998

NG 3046 of 1998

Burchett J

Sydney

27 May 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 7517 OF 1998

IN THE MATTER OF DENNIS AND GORDANA PERICA

BETWEEN:	CROLINK PTY LTD (IN LIQUIDATION) Applicant WILLIAM JAMES HAMILTON AS LIQUIDATOR FOR CROLINK PTY LTD (IN LIQUIDATION) Second Applicant
AND:	OFFICIAL TRUSTEE IN BANKRUPTCY AS TRUSTEE FOR DENNIS AND GORDANA PERICA Respondent
JUDGE:	BURCHETT J
DATE:	27 MAY 1998
PLACE:	SYDNEY

THE COURT ORDERS THAT:

1. An extension of time be granted as sought.

2. Leave be granted nunc pro tunc to the first applicant to continue the proceedings in the absence of a solicitor on the record, on condition that:

(a) Counsel be briefed to appear at the hearing of the proceedings;

(b) Counsel be briefed to settle all pleadings and all affidavits; and

(c) Counsel be briefed, at a reasonably substantial time before the hearing, to advise on evidence.

3. Costs be reserved.

4. The matter be stood over for further directions on 12 June 1998 at 9.30am before his Honour Justice Burchett.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 3046 OF 1998

IN THE MATTER OF CROLINK PTY LTD (IN LIQUIDATION)

BETWEEN:	CROLINK PTY LTD (IN LIQUIDATION) Applicant WILLIAM JAMES HAMILTON AS LIQUIDATOR FOR CROLINK PTY LTD (IN LIQUIDATION) Second Applicant
AND:	CROATIA SYDNEY SOCCER FOOTBALL CLUB LTD First Respondent OFFICIAL TRUSTEE IN BANKRUPTCY AS TRUSTEE FOR DENNIS AND GORDANA PERICA Second Respondent
JUDGE:	BURCHETT J
DATE:	27 MAY 1998
PLACE:	SYDNEY

THE COURT ORDERS THAT:

1. An extension of time be granted as sought.

2. Leave be granted nunc pro tunc to the first applicant to continue the proceedings in the absence of a solicitor on the record, on condition that:

(a) Counsel be briefed to appear at the hearing of the proceedings;

(b) Counsel be briefed to settle all pleadings and all affidavits; and

(c) Counsel be briefed, at a reasonably substantial time before the hearing, to advise on evidence.

3. Costs be reserved.

4. The matter be stood over for further directions on 12 June 1998 at 9.30am before his Honour Justice Burchett.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 7517 OF 1998 NG 3046 of 1998

IN THE MATTER OF DENNIS AND GORDANA PERICA

BETWEEN:	CROLINK PTY LTD (IN LIQUIDATION) Applicant WILLIAM JAMES HAMILTON AS LIQUIDATOR FOR CROLINK PTY LTD (IN LIQUIDATION) Second Applicant
AND:	OFFICIAL TRUSTEE IN BANKRUPTCY AS TRUSTEE FOR DENNIS AND GORDANA PERICA Respondent

IN THE MATTER OF CROLINK PTY LTD (IN LIQUIDATION)

BETWEEN:	CROLINK PTY LTD (IN LIQUIDATION) First Applicant WILLIAM JAMES HAMILTON AS LIQUIDATOR FOR CROLINK PTY LTD (IN LIQUIDATION) Second Applicant
AND:	CROATIA SYDNEY SOCCER FOOTBALL CLUB LTD First Respondent OFFICIAL TRUSTEE IN BANKRUPTCY AS TRUSTEE FOR DENNIS AND GORDANA PERICA Second Respondent

JUDGE:	BURCHETT J
DATE:	27 MAY 1998
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

In these matters, I am asked to give a corporation leave to wage the actions, the subject of the motions, without engaging a solicitor. The corporation is in liquidation. What is proposed is that the liquidator, a very experienced liquidator, should fulfil the role of solicitor, briefing counsel to appear at the hearing. Counsel, of course, in this State is entitled to appear without the intervention between him and the client of a solicitor, and has been for a few years now: s 38I, Legal Profession Act 1987 (NSW), as amended by the Legal Profession Reform Act 1993 (NSW).

The particular liquidator has, in fact, previously been granted leave by the Supreme Court of New South Wales to do the very thing he seeks to do in this case. That was in Conical Holdings Pty Ltd (In Liq) v Clark, an unreported decision of Brownie J delivered on 6 June 1995. Brownie J said:

"Formerly, there was a rule of the common law, as well as Part 4 rule 4" -

referring to the rules of the Supreme Court -

"prohibiting corporations from conducting litigation without legal representation. These rules found justification in a number of ways. First, it is important that someone who appears, or seeks to appear for a corporation has the authority of the corporation to do so, and therefore to bind it by his or her conduct of the litigation: Bay Marine Pty Ltd v Clayton Country Properties Pty Ltd (1986) 8 NSWLR 104, 105-106 and 110. Secondly, courts have regarded it as important, for the administration of justice, that those who appear before them have a responsibility to ensure that the court is properly informed and not misled: Scotts Head Developments Pty Ltd v Palliser Pty Ltd, Court of Appeal, 26 May 1994, not reported, Mahoney AP at 6. Thirdly, courts have been concerned that if unqualified advocates appear, the proceedings are likely to be conducted inefficiently, with consequent expense and/or delay in the particular case, and detriment to the capacity of the courts to service the general body of other litigants: Scotts Head, Mahoney AP at 6-7."

No doubt there are other reasons. His Honour thought that that case, which is on all fours with the present in matters of principle, did not involve to any substantial extent the problems to which he had referred. In particular, such a case is, of course, quite different from the case where a shareholder or director seeks leave to appear on behalf of an impecunious corporation. It seems to me that great weight should be given to the fact that it is an experienced liquidator who is seeking the leave, and that he is briefing counsel in the proceedings. During argument, I suggested that the liquidator's indication of his intention to brief counsel on the hearing should be cemented in a condition of the leave, and that it should be a further condition of the leave that counsel be briefed to settle all pleadings and affidavits and, a reasonably substantial time prior to the hearing, should be briefed to advise on evidence. By this means it can be assured, I think, that the other side, the court, and those interested in the corporation itself, will not be deprived of the full measure of protection which is to be expected when counsel are truly involved in the presentation of a case in court. In my view, our system of justice requires, for its most effective operation, the meaningful participation of trained lawyers. The presentation of cases without their assistance is an unfortunate necessity in some cases, but where that necessity does not exist, and where the court has been entrusted by Parliament with such a discretion as I am now exercising, I think it is important to safeguard the benefits to all parties of the presentation of a particular party's case in that way, so far as it can be done. When I say "benefits to all parties", I have in mind the very important ethical obligations binding counsel not to win at all costs, or attempt to do so, a matter which, like other ethical obligations of professionals, may sometimes be neglected, but is in the case of counsel, as well, of course, as of solicitors, subject to very severe sanctions that provide some greater assurance than would exist without their intervention.

For these reasons, I propose to make the orders sought granting leave, but subject to the conditions that I have expressed already. I think I should reserve the costs to the hearing, which is what I note Brownie J did in the case I have referred to. I make that order also in each motion.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett

Associate:

Dated: 10 June 1998

Counsel for Crolink Pty Ltd (In Liq):	Mr M Southwick
Counsel for the Official Trustee in Bankruptcy:	Mr J T Johnson
Solicitor for the Official Trustee in Bankruptcy:	Sally Nash & Co
Date of Hearing:	27 May 1998
Date of Judgment:	27 May 1998