Supreme Court New South Wales

• Medium Neutral Citation: Tanamerah Estates Pty Ltd v Tibra Capital Pty Ltd [2013] NSWSC 36
• Hearing dates: 10 December 2012
• Decision date: 06 February 2013
• Jurisdiction: Equity Division
• Before: Hallen J

Decision

The Court orders that:

(a) James Scott Tydeman be removed as a party/Plaintiff in the proceedings.

(b) The Plaintiffs' notice of motion filed on 31 October 2012 is dismissed.

(c) Unless by 20 February 2012, a notice of legal practitioner acting has been filed and served by a solicitor retained by Tanamerah Estates Pty Limited, the proceedings be stayed.

(d) Tanamerah Estates Pty Limited and Mr Tydeman are to be jointly and severally liable to pay the Defendant's costs of the notices of motion.

• Catchwords: JURISDICTION, PRACTICE AND PROCEDURE - general principles and guidelines - UCPR rules - right of audience of unqualified person who is a director to represent company - Exercise of discretion to dispense with rules - principles relevant to the exercise of discretion
• Legislation Cited: Civil Procedure Act 2005; Corporations Act 2001; Income Tax Assessment Act 1936 (Cth); Superannuation Industry (Supervision) Act 1993 (Cth); Uniform Civil Procedure Rules 2005
• Cases Cited: Bay Marine Pty Ltd v Clayton Country Properties Pty Ltd (1986) 8 NSWLR 104; Clerical, Administrative & Related Employees Superannuation Pty Ltd v Bishop (1997) 76 IR 139; Clune v Watson (1882) Tarl 75; Connectland Pty Ltd v Porthaven Pty Ltd [2011] NSWSC 616; Cytel Pty Ltd v People Bank Recruitment Pty Ltd [2006] FCA 985; Damjanovic v Maley [2002] NSWCA 230; (2002) 55 NSWLR 149; DB Mahaffy and Associates Pty Ltd v Mahaffy [2011] NSWSC 673; Fountain v Alexander [1982] HCA 16; (1982) 150 CLR 615; Helmhout v Apostoloff; Reynders v Commonwealth of Australia; Dempsey-Fiddes v Commonwealth of Australia [2011] ACTSC 2; Henderson Corporation Pty Ltd v Hewitt [2005] WASC 165; Homestyle Pty Ltd v City of Belmont [1999] WASCA 59; Hubbard Association of Scientologists International v Anderson [1972] VR 340; In the Matter of DB Mahaffy & Associates Pty Limited, [2012] NSWSC 776; In the Matter of Mahaffy & Co Pty Limited DB [2012] NSWSC 1286; JSBG Developments Pty Ltd v Kozlowski [2009] NSWSC 1128; (2009) 75 NSWLR 745; McKenzie v McKenzie [1971] P 33; Manitowoc Crane Group Asia Pte Ltd v Preston Erection Pty Ltd [2004] NSWSC 1141; Martin Bruce Jones as Receiver and Manager of Miami Waterfront Developments Pty Ltd v Miami Waterfront Developments Pty Ltd [2012] WASC 483; May v Christodoulou [2011] NSWCA 75; (2011) 80 NSWLR 462; Molnar Engineering Pty Ltd v Burns [1984] FCA 232; (1984) 3 FCR 68; Oceanic Life Ltd v Chief Commissioner of Stamp Duties (NSW) [1999] NSWCA 416; (1999) 168 ALR 211; 154 FLR 129; Pacific Air Freighters (Qld) Pty Ltd v Toller [2000] FCA 343; 171 ALR 519; Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52; Personalised Transport Services Pty Ltd v AMP Superannuation Ltd [2005] NSWSC 396; Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia (No 12) [2012] FCA 289; Scotts Head Developments Pty Ltd v Pallisar Pty Ltd [1994] NSWCA 281; Silkearl Pty Ltd v Ainsworth Game Technology Ltd [2006] FCA 949; Simto Resources Ltd v Normandy Capital Ltd (1993) 10 ACSR 776; Tooheys Ltd v Commissioner of Stamp Duties (NSW) [1961] HCA 35; (1961) 105 CLR 602; Woodings v Stevenson [2001] WASC 174; (2001) 24 WAR 221
• Texts Cited: Black's Law Dictionary (5th ed.); Civil Trials Bench Book
• Category: Principal judgment
• Parties: Tanamerah Estates Pty Ltd (ACN 094 864 089) as trustee for the Alexander Superannuation Fund (first Plaintiff); James Tydeman (second Plaintiff); Tibra Capital Pty Ltd (Defendant)
• Representation: Counsel: Ms K Richardson (Defendant); Herbert Smith Freehills (Defendant); James Tydeman appeared in person for the first Plaintiff and the second Plaintiff
• File Number(s): 2012/269942

Judgment

Nature of the Claims

1 HIS HONOUR: By notice of motion, filed on 28 September 2012, the Defendant, Tibra Capital Pty Limited, seeks an order, pursuant to Uniform Civil Procedure Rules 2005 ("UCPR"), rule 6.29, that James Scott Tydeman, identified as the second Plaintiff in the amended Statement of Claim, be removed as a party to the proceedings, and, in the alternative, an order, pursuant to UCPR rule 13.4, that the proceedings by him be dismissed generally. Consequential relief is sought, as are Tibra's costs of the proceedings. No relief is sought against the first Plaintiff, Tanamerah Estates Pty Limited in the notice of motion.

2 For ease of reference, I shall hereafter refer to the first Plaintiff as "Tanamerah", to the second Plaintiff as "Mr Tydeman", and the Defendant, as "Tibra".

3 Tibra's notice of motion was listed before me, for hearing, on 26 October 2012. On that day, Mr Tydeman appeared in person, on behalf of himself and, purportedly, on behalf of Tanamerah.

4 Whilst trying to ascertain the real issues in dispute between the parties on Tibra's notice of motion, it became clear that Mr Tydeman, who is, and at all relevant times has been, a director of Tanamerah, would seek, in the event that Tibra's application was successful, an order, under s 14 Civil Procedure Act 2005, that UCPR rule 7.1(2) and (3), which rules, in summary, require a company within the meaning of the Corporations Act 2001 (Cth) to commence, and carry on, proceedings in any court by a solicitor, or by a director of the company, but only if the director is also a plaintiff in the proceedings, be dispensed with.

5 I directed Mr Tydeman to serve any notice of motion seeking such an order, and any affidavit in support thereof, by 31 October 2012, with which direction he complied.

6 During the course of the hearing on that date, I also asked whether there was a financial constraint preventing Tanamerah from obtaining the assistance of a solicitor. Mr Tydeman informed me that there was not. He did not suggest that Tanamerah was unable to pay for legal representation, (although, subsequently, he stated that the directors would have to contribute to the costs). Nor did he say that the desire to have him represent Tanamerah arose, otherwise, from necessity rather than choice. He said, in relation to the current proceedings, that he was "not trusting" of lawyers.

7 Mr Tydeman confirmed all of these matters at the subsequent hearing and, in relation to the last of them, said:

"My experience has shown issues in the past which lead me not to trust solicitors... in this particular matter".

8 Mr Tydeman's notice of motion was filed on 31 October 2012. In it, he sought various forms of relief, but "[O]nly if [he] is denied from being a party to the proceedings ... then under Section 14 of the Civil Procedure Act, the first Plaintiff asks the Court to make an order to dispense with the Rules and permit [him] to commence and carry on these proceedings as the agent and representative of the First Plaintiff and Alexander Superannuation Fund". He makes clear that he seeks a dispensing order "in the circumstance of ... last resort".

9 In relation to Mr Tydeman's notice of motion, I accept the submission, made by Tibra, that "Prayers 1-5 ... are not the proper subject (sic) of "orders" to be sought from the Court (and are more in the nature of submissions addressing Tibra's notice of motion filed 28 October 2012 in relation to the question of proper parties)".

10 By way of example, under the heading "Orders sought" the following appears:

"1 The Plaintiff's ask the Court to consider the Plaintiffs' submissions filed on ...

2 The first Plaintiff seeks confirmation from the Court to the effect that ...

3 In respect to judicial advice ..."

11 Mr Tydeman also sought an order that there be determined a separate question, or should I say separate questions (identified as (a) to (m)). In the submissions, he wrote:

"(4) In respect to the Amended Statement of Claim (ASoC), the Plaintiffs seek the Court to make an order that the Court will make a declaration on the terms of the Tibra Shareholders' Agreement (SA) in accordance with UCPR r 28.2 on the ground and belief that if this course is adopted then this will make a significant contribution to the just, quick and cheap resolution of these proceedings being an achievable ideal which the Court views as being favourable."

12 However, it was submitted that this relief was being advanced to support the submission that, perhaps, if determined in this way, the matter would be less complicated.

13 During the course of the final hearing of the notices of motion, I indicated that I would not decide whether there should be separate questions determined, as it was premature to do so, particularly as Tibra has not yet filed a defence to the amended Statement of Claim, and also because, if it became necessary for Tanamerah to retain a solicitor, following the determination of the notices of motion, the solicitor may take a different view on how the matter should proceed.

14 Tibra provided written submissions in accordance with directions made. Mr Tydeman, also, provided many pages of submissions, including submissions, consisting of 28 pages, which were received on the morning of the hearing. I have read those submissions, which will remain with the court papers.

15 No solicitor has been engaged to act for Tanamerah in the proceedings and on each occasion the matter has been mentioned, Mr Tydeman has appeared on his own behalf and, purportedly, on behalf of Tanamerah. I have permitted Mr Tydeman to appear on behalf of Tanamerah on each occasion without opposition.

16 At the hearing of the notices of motion, at Mr Tydeman's request, and without objection from counsel for Tibra, I permitted his mother, Catherine Tydeman ("Ms Tydeman"), who is also a director of Tanamerah, to sit with him at the bar table and act as a "McKenzie friend" (see, McKenzie v McKenzie [1971] P 33). Thereafter, she sat at the bar table, with Mr Tydeman, taking notes, quietly making suggestions to him, guiding him, generally, in relation to the conduct of the proceedings and providing other assistance. She did not seek to address the court, or otherwise take an active part in the proceedings. (There was no suggestion that she was qualified as a solicitor.)

17 The hearing of the notices of motion took almost one whole day.

The Substantive Proceedings

18 Tanamerah commenced proceedings, by Statement of Claim, on 29 August 2012. Mr Tydeman, whilst disclosed as a director of Tanamerah, was not named as a plaintiff, in the Statement of Claim. A solicitor did not sign the originating process. (Mr Tydeman admits that he is not qualified as a solicitor.)

19 There was no point taken regarding the Statement of Claim and the omission from it of any reference to Mr Tydeman as a Plaintiff. He said, and it was not disputed, that "[I]t was solely due to an administrative oversight the name of James Tydeman was not entered on the cover page of the [Statement of Claim] and the requisite instrument evidencing his director authority, granted on 19 June 2012, was inadvertently overlooked being attached inside that document". (The failure to commence the proceedings by a solicitor is, in any event, an irregularity that does not invalidate the proceedings: Connectland Pty Ltd v Porthaven Pty Ltd [2011] NSWSC 616, per White J, at [19].)

20 On 24 September 2012, an amended Statement of Claim was filed, in which Mr Tydeman was named as the second Plaintiff. A solicitor did not sign this document either.

21 In the amended Statement of Claim:

(a) Tanamerah was identified as an Australian registered company, incorporated in New South Wales, and the sole corporate trustee of the Alexander Superannuation Fund, which was identified as an Australian registered self managed superannuation fund.

(b) Mr Tydeman was identified as an employee of Tibra Intellectual Property Pty Limited (referred to as "Tilbra IP" in the Statement of Claim); then an employee of TC Strategy Company Pty Limited (referred to as "Tilbra TC" in the Statement of Claim) until 17 December 2010; and that he was appointed as a director of Tanamerah on 7 December 2009.

(c) Tibra was identified as an Australian registered company, incorporated in New South Wales, and "the parent company for all the children companies known as the Tibra Group".

(d) By 17 April 2009, Tanamerah, as trustee of the Alexander Superannuation Fund, acquired 231,830 shares in Tibra.

(e) Relevantly, only Tanamerah and Tibra were party to a Shareholders Agreement, upon which Tanamerah's claims are based.

(f) On 10 January 2011, Tanamerah served a transfer notice pursuant to the Shareholders Agreement in respect of the 231,830 shares in Tibra.

(g) As none of the other shareholders in Tibra offered to acquire Tanamerah's shares, Tibra acquired those shares.

(h) On 9 June 2011, Tibra paid Tanamerah an amount in respect of those shares.

(i) Broadly, it was also alleged that:

(i) Tibra breached the terms of the Shareholders' Agreement;

(ii) The difference between the buy-in Market Value methodology (Schedule 3) in the Option Deed and the Net Asset Value methodology (Clause 13.1(d)) in the Shareholders' Agreement was a contemplated penalty provision;

(iii) Tibra made false and misleading misrepresentations in relation to the Shareholders' Agreement;

(iv) Tibra made false and misleading misrepresentations in relation to buy-back notices sent to ASIC;

(v) Tibra was "negligent" and failed in its "duty of care" in relation to its request to the chief financial officer of Tibra to determine the market value of the shares;

(vi) Tibra was "negligent" in relation to reliance on a company secretary authority;

(vii) Tibra abrogated Tanamerah's rights under Part 2J.1, Div 2, s 257D(1)(b) of the Corporations Act;

(viii) Tibra was "negligent" in relation to the share buy-back under the Shareholders' Agreement;

(ix) "Unequal power" existed between Tanamerah and Tibra;

(x) Tibra owed Tanamerah a "fiduciary duty" and a duty of care not to do wrong when completing the sale transaction;

(xi) Tibra committed the "intentional tort (theft of property)" and as such that Tanamerah was entitled to be paid all of the net earnings that Tibra was said to have accrued in relation to the Tamamerah's unaccounted for sales funds;

(xii) Mr Hanson (the solicitor on the record for Tibra who is not a party/defendant) made statements which were "false and misleading"; and

(xiii) Tibra acted in "bad faith", to the detriment of Tanamerah, and as such, Tanamerah is entitled to "disgorgement damages".

(I) Tanamerah seeks orders for the appointment of an independent valuer to determine the market value of the 231,830 shares and an order that Tibra pay to Tanamerah the market value of those shares, less the amount already paid by Tibra. It also seeks orders that Tibra pay the costs of the independent valuation, an account of earnings made by Tibra in respect of Tanamerah's shares between 1 January 2011 and 8 June 2011, "disgorgement damages" for Tibra's use of the unaccounted sale funds from 9 June 2011 and costs.

22 (Although I am not concerned to determine issues of fact alleged in the pleading, it is necessary to provide some detail of the substantive proceedings and the context of the notices of motion.)

23 There is no relief claimed by Mr Tydeman against Tibra in the amended Statement of Claim. He admits that he does not have any individual cause of action available to him against Tibra. Nor does he claim to have "a joint personal entitlement" to the relief sought by Tanamerah. He accepts that he is not what is called a "proper Plaintiff" in the proceedings, but submits that he does not have to be in order to commence, or carry on, the proceedings on behalf of Tanamerah.

24 Mr Tydeman verified the amended Statement of Claim and in the affidavit verifying, stated that he had "been authorised by a resolution of the Directors made at a meeting held on 19 June 2012 ... to commence and carry on these proceedings, as the case requires", which authority had not been revoked. He also stated "I am aware that I may be liable to pay some or all of the costs of the proceedings".

25 In an affidavit, also attached to the amended Statement of Claim, affirmed by Ms Tydeman, she repeated the matters stated in Mr Tydeman's affidavit relating to Tanamerah.

26 Each of the pleadings was duly served on Tibra. However, Tibra has not, yet, filed any defence to the amended Statement of Claim.

The Trust Deed relating to the Alexander Superannuation Fund

27 Because of the submissions made by Mr Tydeman to which I shall return, it is necessary to refer to the original Trust Deed, according to which the Alexander Superannuation Fund is administered. Relevantly, it provides:

(a) The purpose of the creation of the superannuation fund was to provide "benefits to Member(s) upon their retirement, the provision of benefits upon their attaining a particular age, the provision of benefits for dependents [sic] of a Member upon death, and for other purposes permitted by the Superannuation Industry (Supervision) Act 1993".

(b) "Trustees" is defined as meaning "the Trustees or Trustee for the time being of the Fund" and "Trustee" has the same meaning.

(c) The original trustee was Macrologix Pty Ltd, which changed its name to Tanamerah Estates Pty Limited.

(d) "Beneficiary" is defined as meaning a "Member, Dependant, or other person entitled to receive a benefit under the Deed".

(e) "Eligible Person" is defined as meaning "a person engaged in any business, trade, profession, vocation, calling, occupation or employment permitted by the Superannuation Conditions to join the Fund and includes any person who is under age 65 and who has at any time in the period of two years immediately preceding the date of the Deed constituting the Fund engaged in full-time or part-time gainful employment and any other person who is otherwise not excluded from membership of the Fund by the Superannuation Conditions".

(f) "Member" is defined as meaning "an Eligible Person who has been admitted to the Fund and where the context so requires or permits, includes a Past Member, a former Member and a Pensioner".

(g) The initial member of the Fund was Ms Tydeman.

(h) "Member's Benefit" is defined as meaning "in respect of a Member ... the net amount standing to the Member's credit in that Member's accounts including the employer's contribution account (if any), the Member's contribution account and the vested employer's contribution account (if any) plus the realisable value (if any) at that time of any policy of insurance owned by the Trustees on the life of that Member or paid for out of that Member's employer's contribution account (if any), Member's contribution account or vested employer's contribution account (if any) or other Member's account".

(i) "Vested Portion" is defined as meaning "the portion of an account or benefit that is vested for the benefit of a Member including any such portion which is preserved for the benefit of a Member and any such portion which has been transferred in respect of a Member to the Fund from another superannuation fund as a vested benefit".

28 Mr Tydeman relies upon Clause 9.10 of the Trust Deed which provides:

"(a) Members may remove Trustees:

Subject to the Superannuation Conditions and if required by them, with the Trustee's consent, the Trustee or, where there is more than one, a Trustee, may be removed by a two-thirds majority of the Members and such removal is effective upon the passing of a resolution to that effect in accordance with this Deed.

(b) Members may replace Trustees:

At the time of making a resolution under sub-paragraph (a) above the Members may (with the written consent of the appointee or appointees) by resolution made and effected in like manner appoint a Trustee or Trustees to replace the person or persons so removed."

29 He submitted that if he and Ms Tydeman chose to, they could remove Tanamerah as trustee and appoint themselves as Trustees, with the effect they would be entitled to be plaintiffs in the proceedings. (They would still have to establish that these were "proceedings relating to a trust" to successfully defend Tibra's notice of motion.) However, it was accepted that they had not removed Tanamerah as trustee at the date of hearing.

30 Mr Tydeman did not make any reference to Clause 24.8 of the Trust Deed, which provided:

"Member otherwise has no interest:

Except as provided in this Deed and subject to the Superannuation Conditions, a Member, Dependant or Personal Representative have no right to or interest in the Fund."

31 As stated, there are only two members for the purposes of the Trust Deed.

32 The structure of the Superannuation Fund is such that Tanamerah, as trustee, may receive and accept contributions from, or in respect of, a member and that the making of contributions gives rise to a duty of the trustee to pay a benefit to, or in respect of, the member upon any of several specified future events.

33 There is no evidence of any contributions having been made to, or accepted by, Tanamerah.

34 Also, there was virtually no evidence presented about Ms Tydeman, including her age.

Other Background Matters relating to Claims

35 On 18 September 2012, that is prior to the filing of the amended Statement of Claim, Tibra's solicitors wrote to Mr Tydeman, referring to UCPR rule 7.1(2)(a) and rule 7.1(3), stating that he was not a plaintiff and that rule 7.1(3) did not apply, suggesting that Tanamerah seek legal advice, and referring to s 14 of the Civil Procedure Act.

36 In a subsequent letter, dated 25 September 2012, sent to Mr Tydeman, Tibra's solicitors stated that the claims in the amended Statement of Claim referred to the buy-back of shares in Tibra, all of which shares were owned by Tanamerah, and not by him, with the result that he should not be a plaintiff in the proceedings. The letter suggested, again, that Tanamerah should seek legal advice and referred to s 14 of the Civil Procedure Act. Finally, the solicitors threatened that Tibra would seek an order that the proceedings be dismissed as disclosing no cause of action by Mr Tydeman.

37 Mr Tydeman responded by letter dated 1 October 2012. He stated that Tanamerah had commenced proceedings by a director; that he had been authorised to commence, and carry on, the proceedings, on behalf of Tanamerah; that there was no requirement that, as a plaintiff, he must have an individual cause of action against Tibra; that UCPR rule 7.11(2), which, in summary, provides that in proceedings relating to a trust, all trustees must be parties, was relevant, as "I stand as the representative in the capacity of an authorised director/trustee of Tanamerah as the trustee for the ASF"; and that UCPR rule 7.12(2), which, in summary, provides that in proceedings relating to a trust, all persons having a beneficial interest under the trust need not be parties, but the plaintiff may make parties of such of those persons as he or she thinks fit, was also applicable.

38 On this topic, Mr Tydeman's written submissions added:

"... there is no material difference between if a natural person desires to represent him or herself compared to if a Company desires to be represented by a natural person wearing the hat of a director, if that director has been duly authorised to do so in accordance with UCPR r 7.2. ..."

39 There was, then, correspondence from each to the other, prior to the filing of the notice of motion by Mr Tydeman, setting out arguments in support of the position being advanced, or in opposition to, the position being put by the other.

40 There were also some open offers made on behalf of Tibra relating to the way in which the notices of motion, and suggestions going to how the substantive proceedings, could be dealt with. However, Mr Tydeman did not accept any of the offers or suggestions made.

41 On 9 November 2012, Mr Tydeman forwarded to Tibra's solicitors, a copy of a document headed "Trustee Declaration" being "Instructions and form for SMSF trustees", issued by the Australian Taxation Office, which was a document said "[T]o be completed by new trustees and directors of corporate trustees of self managed super funds". In the letter dated 9 November 2012, he informed the solicitors that the document was to be relied upon as evidence in support of UCPR rule 7.11(2).

42 In a subsequent letter, dated 30 November 2012, Mr Tydeman informed the solicitors for Tibra that:

"... our reliance on this declaration relates solely to the fact 'directors' of the corporate trustee vehicle have responsibilities and duties for the management of the self-managed superannuation fund in their capacities as 'trustees' (as defined by the SISA). Under this specific and uncommon circumstances UCP Rule 7.11(2) must be enlivened with respect to natural persons wearing the hat of director-trustees."

43 In the same letter, Mr Tydeman also produced a document headed "Self-Managed Superannuation Fund ("SMSF") - Registry of Members" which document identified Ms Tydeman as a member from 17 May 2002 and Mr Tydeman as a member from 25 September 2007.

44 As part of the evidence relied upon by Mr Tydeman, there is a copy of an "Application for Membership" dated 25 September 2007, in which Mr Tydeman applied to become a member of the Alexander Superannuation Fund as well as an acceptance of his application for membership.

45 The Application for Membership included the following paragraph:

"I nominate and agree to the Trustee named in the Deed acting as Trustee."

46 There is annexed to an affidavit affirmed on 9 November 2012, by Mr Tydeman, a minute of a meeting held by Tanamerah on 8 November 2012, which included:

"...

(1) It was noted that the ATO had issued a "Trustee declaration" document for the purpose of having the directors of a corporate trustee for a self managed superannuation fund execute it.

(2) It was noted that the trustee declaration document accords with the definition of "trustee" as defined by the Superannuation Industry (Supervision) Act 1993 (emphasis added)"

47 However, it is not in dispute that Mr Tydeman has never been appointed as the trustee of the Alexander Superannuation Fund. It is also accepted that he is not identified as a trustee in the Deed of Trust governing the Alexander Superannuation Fund. He submits, however, that he falls within the definition of "trustee" in the Superannuation Industry (Supervision) Act 1993 (Cth) as well as under the Income Tax Assessment Act 1936 (Cth). He also submits that as a director of Tanamerah, with fiduciary duties owed to it, he is a trustee and, therefore, entitled to be joined by Tanamerah, as a party to the proceedings.

48 Mr Tydeman, in answer to a question from the bench, said that he was likely to be the principal witness on behalf of Tanamerah, in the substantive proceedings, although if there was a separate question (or if there were separate questions) framed, that part of the case could proceed on documents, without the need for oral evidence and cross-examination. Otherwise, he will need to give evidence. He accepts also that if the matter proceeds to a final hearing of the substantive proceedings, there will be witnesses called on behalf of Tibra, each of whom it may be necessary to cross-examine.

49 As stated above, during the course of the final hearing of the notices of motion, I was informed that "there is no financial constraint preventing Tanamerah from retaining a solicitor but the trustee or the directors would have to pay money to Tanamerah for that purpose". Yet, there was no evidence given by Mr Tydeman, or by Ms Tydeman, of his, or her, financial circumstances, or of the financial circumstances of Tanamerah, or of the Alexander Superannuation Fund.

50 Nor was there any evidence given of the entitlements, if any, of either Mr Tydeman, or Ms Tydeman, as members of the Alexander Superannuation Fund or of the difficulties (or "issues") that Tanamerah or Mr Tydeman had experienced, in the past, with any solicitor that gave rise to him finding solicitors, in the circumstances of the current case, "untrustworthy", leading it, and him, to the conclusion that a solicitor should not be retained on behalf of Tanamerah.

Some Matters included in the Submissions

51 Although in Manitowoc Crane Group Asia Pte Ltd and Anor v Preston Erection Pty Ltd [2004] NSWSC 1141, Nicholas J, at [17], expressed the view 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 that "a director who is unqualified may act as the corporation's representative", he was speaking of circumstances where the director otherwise complied with UCPR rule 7.1 and rule 7.2.

52 It seems to me, however, that the considerations to which his Honour referred may be relevant on the question whether the rules should be dispensed with under s 14 Civil Procedure Act, when a director asks the court to dispense with those rules.

53 In Silkearl Pty Ltd v Ainsworth Game Technology Ltd [2006] FCA 949, Allsop J (when a Judge of the Federal Court) refused an application for leave to commence and carry on proceedings other than by a solicitor in circumstances where he found, at [34], that "the correspondence and the conduct of the case to date is a degree of emotive language used by ..., at times involving sweeping allegations of impropriety by the respondent and its solicitors. Not all litigation can be conducted in peaceful harmony, but one of the fundamental obligations of any practitioner in the discharge of his or her obligations to the client and to the court is the civil and dispassionate communication with other parties to that litigation".

54 It is necessary, then, to refer to some of the submissions made by Mr Tydeman. I shall quote passages, in the latest written submissions, which, I am satisfied, are not supported by the evidence presented on the notices of motion:

"(14) Following the filing and serving of the ASoC, the DLawyers embarked on their path of, in the Plaintiffs view, vexatious and frivolous proceedings in respect to the remedial action which had been taken by Mr Tydeman and this has, to date, been in play for about three months.

...

(16) The Plaintiffs say the dispute raised by the DLawyers', being in the Plaintiffs view an abuse of the Court process, could have easily, economically and professionally been resolved outside of the Court.

...

(19) It appears to the Plaintiffs that Mr Hanson favors distorting the intention of those words in respect to the circumstance in connection to his words at paragraph 12 of HansonSub (emphasis added):

The rule [7.1(3)] does not provide that where a company is a plaintiff in a proceeding it is proper or necessary to join a director as a plaintiff, whether or not the director has been authorised to [commence and] carry on the proceeding on behalf of the company as contemplated by Rule 7.2.

(20) It seems to the Plaintiffs that Mr Hanson wanted to cause mischief because he omitted the words "commenced and" (inserted in the quote above with square braces) and he has repeatedly used the word "join" instead of the correct word "added" as shown on the cover page of the ASoC.

...

(25) The Plaintiffs suspect Mr Hanson continues to rely on the DNoM for no legitimate reason other than to apply undue pressure so Tanamerah will capitulate from its position and become compelled to appoint legal representation. This might be seen as an attempted abrogation of self-represented litigant rights and, if so, that tactic by a solicitor could be deemed to be akin to professional misconduct and would place the solicitor's conduct under the scrutiny of the Legal Services Commissioner.

...

(31) In response to DSub paragraph 6:

(a) The Plaintiffs say the DLawyers' "offer", which they have stated would resolve all the "key" procedural issues, was entirely self-serving because those potential issues appear to be relied upon as a way of manipulating the situation to their client's best advantage.

(b) Further, the Plaintiffs view is the conduct of the DLawyers might be viewed as tantamount to coercion and there is a possibility it may, or should, be frowned upon by the Court.

(32) In response to DSub paragraph 7:

(a) The Plaintiffs say the DLawyers, who are naturally bias towards their client, have no right to make any declaration as to the 'real issue' (or issues) in the dispute simply to minimise their client's responsibility and to limit the types of relief available at Law.

(b) If the DLawyers believe the Plaintiffs' claims have no merit whatsoever then they should immediately file and serve a Defence and deny all the claims made and without any concern in respect to their executing the requisite S.347 certificate in accordance with the LPA.

(33) In response to DSub paragraph 8, the Plaintiffs say:

(a) Ms Richardson's words misrepresent the Plaintiffs' proposal (emphasis added) "Instead, in a reply email dated 5 November 2012, Tanamerah proposed a "staged" approach to the litigation where the question of breach of contract would be heard as a preliminary matter (presumably as a separate question)".

(b) The correct intention as stated in the Plaintiffs' letter: "As you are aware, we are seeking to narrow the issue before the Court, initially, to merely a documentation issue. We will be asking the Court to make declarations concerning the Shareholders' Agreement in general terms only, not specific to Tanamerah's circumstances, and the reason for this approach is simple:".

(c) By Ms Richardson distorting the Plaintiffs' intention from "declaration", as seen by the eyes of the Court as part of her submissions, to be "breach of contract" seems to be a way to cause mischief and suggest a subtle message to the Court as to what the DLawyers prefer because it is abnormal.

(34) In response to DSub paragraph 9, the Plaintiffs say:

(a) Ms Richardson's words misrepresent the Plaintiffs' position (emphasis added): "Tibra enquired whether - if the question of construction of the Shareholders' Agreement was determined as a separate question - Tanamerah accepted that would avoid the need for a later hearing of the other issues raised in the ASOC".

(b) If Ms Richardson had used proper additional words (as shown in the quote below using square braces) then this would avoid any possible confusion before the eyes of the Court (emphasis added): "Tibra enquired whether - if the question of construction of the Shareholders' Agreement was determined as a separate question - [then Tibra asked if] Tanamerah [would be willing to accept] that [that] would avoid the need for a later hearing of the other issues raised in the ASOC [?]".

...

(42) In response to DSub paragraph 17:

(a) In reference to Solicitor Rules 23 - Advocacy Rules:

Duty to opponent

A.51. A practitioner must not knowingly make a false statement to the opponent in relation to the case (including its compromise).

A.52. A practitioner must take all necessary steps to correct any false statement unknowingly made by the practitioner to the opponent as soon as possible after the practitioner becomes aware that the statement was false.

(b) The Plaintiffs say the DLawyers have, what would appear prima facie throughout their written documents and oral representations in Court, made statements which are false or misleading, or likely to mislead, or they choose to omit material information which distorts the truth and this conduct, if it were properly reviewed by the appropriate authority, might be viewed as being against all the rules in regard to professional conduct against an opponent.

(c) The Plaintiffs believe some lawyers may be skilled enough to push the 'truth' to the point where it is not strictly speaking 'wrong', and this conduct attributes to feelings of mistrust of the legal profession, in general.

(d) The Plaintiffs are not in any position to declare or allege the DLawyers have done any act deliberately, and if it comes across that way in any part of this document and in any respect then that is unintentional and not the purpose of any such words, however, the present procedural dispute concerning whether Mr Tydeman can, or cannot be, a plaintiff to represent Tanamerah has unnecessarily caused aggravated frustration and wasted significant amounts of time which, in the Plaintiffs' view, could have been put to better use in professional discourse to resolve issues rather than engage in such frivolous proceedings.

...

(46) In response to DSub paragraph 27:

(a) The Plaintiffs say Ms Richardson's submission is not correct for the reason UCPR r 7.1 does not fix any expressed limitation for representation which requires legal representatives as clearly expressed by an "or" operation:

(i) UCPR r 7.1(1) (emphasis added) "A natural person ..., either ... or in person".

(ii) UCPR r 7.1(2)(a) (emphasis added) "A company ...: ... or by a director of the company".

(b) The Plaintiffs say Ms Richardson seems to have a preference to avoid the real issues in these proceedings and put weight solely on the least damaging claim to her client being breach of contract. ..."

55 I have not quoted all of the submissions that, in my view, lack dispassionate consideration of the real issues in the proceedings. The criticisms of the solicitor and counsel seem to be unjustified.

56 By way of another example that demonstrates a lack of dispassionate communication, during the course of the submissions, Mr Tydeman, somewhat belatedly, wished to tender the Trust Deed relating to the Alexander Superannuation Fund. (He had previously stated that the Trust Deed had no relevance to the proceedings and that it was not intended to be relied upon "for any material purpose". He had agreed to produce it, however, in answer to a notice to produce, but provided that it could be inspected by Tibra's legal representatives in his presence.)

57 Only the original Trust Deed was in Court and Mr Tydeman requested its return immediately after the hearing. I informed him that since I intended to reserve my decision, I would need to retain the original until after I had delivered reasons for judgement unless a copy could be made. He indicated that he would not be able to obtain a copy of the Trust Deed over the long adjournment.

58 To assist Mr Tydeman and the Court, the solicitor for the Defendant, through counsel, then offered to make a copy of the Trust Deed. Initially, the offer was refused unless Mr Tydeman was permitted to carry out the copying process himself. Then, Mr Tydeman rejected the offer made and stated that the court could retain the original Trust Deed.

59 In relation to the issue of not retaining a solicitor, Mr Tydeman submitted:

"(f) The right for self-representation must exist unfettered because if it were otherwise then it would be a denial of natural justice. The Plaintiffs refer to and rely on the Civil Trials Bench Book (Update 18, September 2012) published by the Judicial Commission of New South Wales (emphasis added):

[1-0820] Permissible intervention or assistance

...

(i) It will also be appropriate for a judge to draw to the attention of the unrepresented litigant the potential availability of legal assistance through Legal Aid or pro bono schemes (see [1-0600]), and to gently identify the advantages of the litigant having professional assistance. In many instances there may be no entitlement either to legal aid or pro bono representation, and the unrepresented litigant may, in any event, prefer to present the case in person, either through mistrust of the profession, or for other reasons. In such a case, the issue should not be pushed, lest it engender suspicion concerning the willingness of the court to hear the case impartially, an inevitable problem in the case of the vexatious or querulous litigant."

60 Mr Tydeman seemed to view the paragraph quoted as entitling Tanamerah, merely by stating that there was mistrust of solicitors, to an order permitting a director, following authorisation, and without more, to represent the company. He did not appear to acknowledge, in this submission, that it was also necessary for the director to be a plaintiff.

61 Of course, the paragraph quoted from the Civil Trials Bench Book relates to the permissible assistance provided by a judge to a litigant appearing in person and does not relate, at all, to the circumstances the subject of the notices of motion.

62 What is outlined above should not be seen as a criticism of Mr Tydeman who, on each occasion he appeared before me, has acted with the utmost courtesy and has attempted to deal with what he believes to be the real issues in the present dispute. He seems to have had some experience in the conduct of litigation, although he said he had not had "much experience beside this matter". My relatively short experience of him demonstrates that he is certainly articulate.

63 It was also clear that he had researched the law, although, not unnaturally, without legal training and simply by using the Internet, he appears to have been unable to appreciate the subtleties of the UCPR and of the cases. He complied with the directions that were made.

64 Again, without any criticism, I formed the view, despite the matters referred to, that he would lack the experience necessary for the conduct of contested litigation involving the issues that I have briefly described. The substantive proceedings will not be limited to an application of the present kind, but leaving aside any other interlocutory applications, will involve a full-scale trial.

65 I shall return to this topic later in these reasons.

The Legislation

66 UCPR rule 6.24 provides that if the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party.

67 UCPR rule 6.29 provides that the court may order that a person who has been improperly, or unnecessarily, joined, or who has ceased to be a proper, or necessary, party, be removed as a party.

68 UCPR rule 7.1 provides:

"(1) A natural person may commence and carry on proceedings in any court, either by a solicitor acting on his or her behalf or in person.

(2) A company within the meaning of the Corporations Act 2001 of the Commonwealth:

(a) may commence and carry on proceedings in any court by a solicitor or by a director of the company, and

(b) may commence and, unless the court orders otherwise, carry on proceedings in the Local Court by a duly authorised officer or employee of the company.

(3) In the case of proceedings in the Supreme Court, subrule (2) (a) authorises a company to commence proceedings by a director only if the director is also a plaintiff in the proceedings."

69 The phrase "carry on proceedings" is defined in s 19(2) of the Civil Procedure Act for the purposes of that Act and the UCPR as including defending proceedings.

70 UCPR rule 1.3(1)(b) provides that "a reference in the rules to a "solicitor" is a reference to a legal practitioner who practises as a solicitor".

71 UCPR rule 7.2 provides:

"(1) A person who commences or carries on proceedings in the Supreme Court or District Court:

(a) as the director of a company within the meaning of the Corporations Act 2001 of the Commonwealth, or

(b) as the authorised officer of a corporation (other than a company within the meaning of the Corporations Act 2001 of the Commonwealth),

must file with the originating process, notice of appearance or defence, as the case may be, an affidavit as to his or her authority to act in that capacity, together with a copy of the instrument evidencing that authority.

(2) The affidavit made by the director of a company within the meaning of the Corporations Act 2001 of the Commonwealth must contain:

(a) a statement to the effect that:

(i) the director is a director of the company, and

(ii) the director has been authorised by a resolution of the directors duly passed at a meeting of directors held on a specified date (which must not be earlier than 21 days before the date of the affidavit) to commence and carry on the proceedings, as the case requires, and

(iii) the authority has not been revoked, and

(iv) the director is aware that he or she may be liable to pay some or all of the costs of the proceedings, or

(b) a statement to the effect that:

(i) the director is the managing or governing director of the company and has authority to exercise the powers of the directors, and

(ii) the director is aware that he or she may be liable to pay some or all of the costs of the proceedings.

(3) The affidavit made by the authorised officer of a corporation (other than a company within the meaning of the Corporations Act 2001 of the Commonwealth) must contain a statement to the effect that:

(a) the officer is the holder of a specified office within the corporation, and

(b) the officer has been authorised by the corporation to commence and carry on the proceedings, and

(c) the authority has not been revoked, and

(d) the officer is aware that he or she may be liable to pay some or all of the costs of the proceedings."

72 UCPR rule 7.11, relevantly, provides:

"(1) ...

(2) In proceedings relating to a trust, all trustees must be parties.

(3) ..."

73 UCPR rule 7.12, relevantly, provides:

"(1) ...

(2) In proceedings relating to a trust, all persons having a beneficial interest under the trust need not be parties, but the plaintiff may make parties of such of those persons as he or she thinks fit.

(3) This rule has effect despite rule 6.20 (Proceedings affecting persons having joint entitlement)."

74 UCPR rule 13.4 provides:

"(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:

(a) the proceedings are frivolous or vexatious, or

(b) no reasonable cause of action is disclosed, or

(c) the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1)."

75 Section 14 of the Civil Procedure Act provides:

"In relation to particular civil proceedings, the court may, by order, dispense with any requirement of rules of court if satisfied that it is appropriate to do so in the circumstances of the case."

76 Section 10 of the Superannuation Industry (Supervision) Act defines "trustee" in relation to a fund, as:

"(a) if there is a trustee (within the ordinary meaning of that expression) of the fund, scheme or trust - the trustee; or

(b) in any other case - the person who manages the fund, scheme or trust."

77 Section 17A(1) of the Superannuation Industry (Supervision) Act defines a self-managed superannuation fund that has more than one member. It relevantly provides that it must (a) have fewer than five members; (b) if the trustees of the fund are individuals, each individual trustee of the fund is a member of the fund; (c) if the trustee of the fund is a body corporate, each director of the body corporate is a member of the fund; and (d) each member of the fund is a trustee of the fund or if the trustee of the fund is a body corporate, each member of the fund is a director of the company.

78 There is, thus, a clear differentiation in the Superannuation Industry (Supervision) Act between a trustee of a self managed superannuation fund that is a body corporate and a trustee who is an individual.

79 Mr Tydeman refers to s 104A of the Superannuation Industry (Supervision) Act, which recognises certain obligations and responsibilities of, inter alia, a director of a body corporate that is the trustee of a self managed superannuation fund. Relevantly, that section provides:

"(1) This section applies to a person if:

(a) he or she becomes, after 30 June 2007:

(i) the trustee of a self managed superannuation fund; or

(ii) a director of a body corporate that is the trustee of a self managed superannuation fund; or

(b) he or she is a trustee of such a fund or a director of such a body corporate, and another person becomes, after 30 June 2007, a trustee of the fund or a director of the body corporate."

80 In the Income Tax Assessment Act, upon which Mr Tydeman also relies, "trustee" is defined in section 6 as meaning:

"... in addition to every person appointed or constituted trustee by act of parties, by order, or declaration of a court, or by operation of law, includes:

(a) an executor or administrator, guardian, committee, receiver, or liquidator; and

(b) every person having or taking upon himself the administration or control of income affected by any express or implied trust, or acting in any fiduciary capacity, or having the possession, control or management of the income of a person under any legal or other disability..."

81 Although Mr Tydeman referred to the just, quick and cheap resolution of the real issues in the dispute or proceedings in relation to submissions regarding the determination of separate questions, neither he, nor Tibra's counsel, referred to that part of s 56 Civil Procedure Act which, relevantly, provides:

"(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule."

82 I remember, of course, that one does not look at that sub-section in isolation, but in the context of s 57 and s 58 of the Civil Procedure Act. Nor does the sub-section require or justify the adoption of a construction of a rule that, having regard to all the considerations relevant to the process of construction, is not reasonably available. In my consideration of the issues, I have kept all of these sections firmly in mind.

The Issues on the Notices of Motion

83 In the present case, there is no dispute that Tanamerah is a company within the meaning of the Corporations Act 2001 of the Commonwealth, or that Mr Tydeman is a director of Tanamerah.

84 There is also no dispute that Mr Tydeman has filed an affidavit as to his authority to act in that capacity with the relevant matters stated in UCPR rule 7.2(2) as required, which affidavit appears as part of the amended Statement of Claim.

85 Thus, under UCPR rules 7.1 and 7.2, the sole issue, in this case, may be distilled to determining how the word "plaintiff" should be construed in the relevant rule. Does it require the director to be named as a plaintiff with a cause of action, or claim for relief sought, against, the defendant, or will it be enough if he or she is named as a plaintiff because he or she has been authorised by the company to commence and/or carry on the proceedings on behalf of the company?

86 Under UCPR rule 7.11, there are two issues. The first appears to be whether the substantive proceedings are proceedings "relating to a trust". The second is whether Mr Tydeman is "a trustee" within the meaning of this rule.

87 Under UCPR rule 7.12, there are also two issues. The first issue is the same as under rule 7.11, namely, whether the substantive proceedings are proceedings "relating to a trust". The second issue is, if so, whether Mr Tydeman is a person with "a beneficial interest under the trust".

88 As stated, there is no dispute that Mr Tydeman has not identified any cause of action that he has against the Defendant and he does not suggest any cause of action. On this basis, the Defendant says that UCPR rule 6.29 enables the court to remove him as a plaintiff because he has been improperly, or unnecessarily, joined, and UCPR rule 13.4 enables the court to dismiss the proceedings so far as they relate to him because no cause of action is disclosed.

89 If Mr Tydeman does not succeed in establishing any of the bases upon which he says that he is a Plaintiff, he seeks an order under s 14 of the Civil Procedure Act, in which case the issue is whether it is appropriate to dispense with the requirement of the rules and permit him to commence and carry on proceedings on behalf of Tanamerah other than by a solicitor.

Determination

90 It can be seen from UCPR rule 7.1, that a company within the meaning of the Corporations Act cannot commence proceedings "in person".

91 In Hubbard Association of Scientologists International v Anderson and Just [1972] VR 340, at 341, in the joint judgment of Smith, Little and Gowans JJ, it was said:

"A company cannot appear before the court in person or be treated as appearing before the court in person. We refer to the cases of Re London County Council and London Tramways Co (1897) 13 TLR 254; Scriven v Jescott (Leeds) Ltd (1908) 53 Sol Jo 101; Frinton and Walton U.D.C. v Walton and District Sand and Mineral Co Ltd [1938] 1 All ER 649; Tritonia Ltd v Equity and Law Life Assurance Society [1943] AC 584; [1943] 2 All ER 401, and Re Education Pty Ltd and the Companies Act [1963] NSWR 1340. These cases show that a company, since it cannot be regarded as a litigant in person, must appear before the court by or through an agent. The cases also show that the class of agents by and through which a company may appear before the court may be limited by statute or by the practice of the court."

92 In Bay Marine Pty Ltd v Clayton Country Properties Pty Ltd (1986) 8 NSWLR 104, at 105-106, Kirby P (as his Honour then was) set out the reasons for imposing such a requirement as follows:

"Various reasons are suggested for the rule and the practice of the courts. They include the control which courts exercise over those having audience before them and the privilege afforded to legal representatives because of the training which they undergo and the discipline to which they submit. But they also include, in the case of a corporation, the importance of ensuring that those who speak for it (the corporation not being a natural person able to speak for itself), have authority to do so and may thereby be subjected to orders of the court, including as to the costs of litigation. There is no common law entitlement of a member or officer of a corporation to appear for it before a court. On the contrary, the rules of this jurisdiction, as of others, require that, statute apart, a corporation shall be represented by a legal practitioner. ..."

93 The rule and practice referred to embody the common law principle, which existed for many years, the rationale of which was explained by Mahoney AP in Scotts Head Developments Pty Ltd v Pallisar Pty Ltd [1994] NSWCA 281, at 3, as follows:

"This rule represents the established law. This Court, as a superior court, has a discretion to determine who will be allowed to appear before it. However, it has long adopted the general rule that it will not allow an appearance by a person who has not been admitted to practise before it. This accords with the long established practice of superior courts in Australia and in England ..."

94 His Honour then explained the basis for the rule of practice and said, at 3-4:

"The rule of practice which the Court has adopted whereby appearance is limited to persons admitted to practise before the Court is not based on technicalities. It has long been regarded as based on considerations central to the proper administration of justice and the protection of the parties in the litigation. First, the Court has emphasised the importance, for the administration of justice, of the fact that those permitted to appear before it owe a responsibility to the Court to ensure that the Court is properly informed and not misled ...

Second, the Court has regard to the possibility of unqualified or untrained advocates interfering with the course of the proceeding before the Court and causing loss to the parties involved ... Experience has shown that a proceeding conducted by a person unskilled in advocacy tends to last longer and to cost more. In determining whether to allow such an advocate to appear, the Court must have regard not merely to the position of the party for whom he seeks to appear, but also to that of the other party. The interest of the defendant in having the proceeding dealt with without unnecessary delay and cost is one which, in my opinion, is to be borne in mind.

Third, there remains the public interest in the effective, efficient and timeous disposal of litigation. The administration of justice requires that full assistance be available to the Court in determining the issues of fact and law which come before it. The isolation of issues and the presentation of the consideration which support one answer rather than another are things best done by a person experienced in such matters. Where one party is represented by an advocate less than appropriately skilled, the duty of the Court to act with fairness and impartiality between the parties is more difficult and may in some cases be compromised. The Court cannot adopt the role of advocate for one party or the other. Ordinarily it cannot undertake investigation of matters beyond the evidence formally before it ..."

95 It can be seen that UCPR rule 7.1 refers only to a company within the meaning of the Corporations Act. Neither "company" nor "corporation" is defined in the Civil Procedure Act, or in the Dictionary to the UCPR. However, s 9 of the Corporations Act defines "company" as "a company registered under this Act" and "corporation", for the purposes of the Act, is defined, in s 57A as "a company and any body corporate (whether incorporated in this jurisdiction or elsewhere) and an unincorporated body that under the law of its place of origin, may sue or be sued, or may hold property in the name of its secretary or of an office holder of the body duly appointed for that purpose".

96 UCPR rule 7.1 is a clear legislative provision requiring a relevant corporation (as Tanamerah is agreed to be) to commence, or prosecute, proceedings, in the Supreme Court, through a solicitor, or through a person with two characteristics, namely that he, or she, is a director of the corporation, and that the person is a plaintiff in the proceedings.

97 There is no definition of the word "plaintiff" in the UCPR. The note to the Dictionary states that the word is defined in s 3 of the Civil Procedure Act. In that Act, the word is defined as meaning "a person by whom proceedings are commenced, or on whose behalf proceedings are commenced by a tutor, and includes a person by whom a cross-claim is made or on whose behalf a cross-claim is made by a tutor". Another way of putting this is that the "plaintiff" is the party claiming relief.

98 As previously stated, Mr Tydeman submits that UCPR rule 7.1 does not require him to have a personal cause of action against the Defendant in order for him to be a plaintiff in circumstances in which the corporation has a cause of action. He says, provided he files an affidavit with the originating process in which he states that:

(a) he is as a director of the company;

(b) he is authorised by a resolution of the directors duly passed at a meeting of directors held on a specified date (which must not be earlier than 21 days before the date of the affidavit) to commence and carry on the proceedings, as the case requires;

(c) a copy of the instrument evidencing that authority is annexed to the affidavit;

(d) the authority has not been revoked; and

(e) he is the managing, or governing, director of the company and has authority to exercise the powers of the directors, and that he is aware that he may be liable to pay some, or all, of the costs of the proceedings,

nothing else is required to enable him to commence, or carry on, the proceedings and be named as a plaintiff in the proceedings.

99 This submission should be rejected.

100 UCPR rule 7.1 deals with the identification of the person by whom proceedings may be commenced, and carried on, by reference to whether the person is a natural person, or a company within the meaning of the Corporations Act. That this is so is evidenced by the reference in the rule to "a natural person", to "a natural person acting on behalf of another person pursuant to a power of attorney", and to "a director of the company".

101 Then, in the case of the natural person and the natural person acting on behalf of another person pursuant to a power of attorney, he, or she, may commence and carry on proceedings in person or by a solicitor.

102 UCPR rule 7.1(2)(a) entitles a director to commence or carry on proceedings on behalf of the company, as of right, subject only to compliance with its procedural requirements. In the case of a relevant company, however, a director may commence and carry on proceedings, one such requirement is that "the director is also a plaintiff in the proceedings". In that circumstance, the director, who is a plaintiff, and who may appear in person, as well as by a solicitor, is considered able to commence and carry on proceedings on behalf of the company, provided that the additional requirements of UCPR rule 7.2 are complied with. That rule sets out the requirements that must be satisfied by a person who commences or carries on proceedings as a director.

103 In May v Christodoulou (2011) 80 NSWLR 462; [2011] NSWCA 75, Sackville AJA, at [95], and Handley AJA at [15], stated that the Court does not grant an indulgence when UCPR rules 7.1 and 7.2 are invoked and the leave of the court is not required. The indulgence of allowing a natural person to commence and carry on proceedings on behalf of a relevant company is granted by these rules. It is not a matter of discretion. Otherwise, and subject to s 14 of the Civil Procedure Act, the company must commence and carry on the proceedings by a solicitor.

104 The purpose of UCPR rule 7.2 appears to be, as stated, to ensure that the company, the director of which is also a plaintiff, is aware that the director is proposing, and has been validly authorised by the company, to act on its behalf in the proceedings. By requiring an affidavit as to the director's authority to act in that capacity, together with a copy of the instrument evidencing that authority, the court ensures that the purposes have been met. It also ensures that the director realises that he, or she, may be liable for costs.

105 The rationale for the requirement that the director also be a plaintiff appears to be that since the director, who is a natural person, is also a plaintiff, and since the proceedings may continue with the director not being represented by a solicitor, the director may also represent the company.

106 The identity of a party to proceedings is usually approached by reference to a consideration of whether the rights and liabilities of that person or entity, as against any other person or entity identified in the proceedings, will be directly affected by any order which may be made in the action: Homestyle Pty Ltd v City of Belmont [1999] WASCA 59; Henderson Corporation Pty Ltd v Hewitt [2005] WASC 165 at [51].

107 It seems to me to be implicit that the director must be a plaintiff in his, or her, own right, and not merely one who is named as a plaintiff because he, or she, has been authorised to commence or carry on proceedings on behalf of the company. As a plaintiff in his, or her, own right, the director is not likely to be removed as a party, or have his, or her, proceedings summarily dismissed.

108 The conclusion that the director cannot merely be named as a plaintiff for the purpose of commencing or carrying on the proceedings on behalf of the company, is supported by JSBG Developments Pty Ltd v Kozlowski [2009] NSWSC 1128; (2009) 75 NSWLR 745, in which Barrett J (as his Honour then was) confirmed, at [17], that UCPR rule 7.1(2) is a limiting provision and that it must be read so that the word "may" is regarded as meaning "may only". This follows from the circumstance that a company "cannot be regarded as a litigant in person".

109 At [18], his Honour said:

"Importantly, however, the right or ability of a company within the meaning of the Corporations Act to commence proceedings "by a director" is, in this court, qualified and constrained by rule 7.1(3). That rule makes eligible, for the purposes of rule 7.1(2)(a) only a director who is, in his or her own right, a plaintiff in the proceedings. The combined effect of rules 7.1(2)(a) and 7.3 is that, if the company and a director of the company are both plaintiffs, the company may commence and carry on the proceedings by that director. Otherwise, the company may not commence or carry on the proceedings by a director." (My emphasis)

110 A similar view was expressed by White J in Connectland Pty Ltd v Porthaven Pty Ltd, at [18] - [19]:

"Subrule 7.1(2) provides that a company may commence and carry on proceeding in any court by a solicitor, or by a director of the company. However, subrule 7.1(3) provides that in the case of proceedings in the Supreme Court, subr (2)(a) authorises a company to commence proceedings by a director only if the director is also a plaintiff in the proceedings.

Ms Caporale is not a plaintiff in the proceedings and she would not be a proper party had she so named herself."

111 White J took a similar view in DB Mahaffy and Associates Pty Ltd v Mahaffy [2011] NSWSC 673, in which an individual sought leave to be joined as a party/Plaintiff. His Honour said, at [27], that the applicant "would not be a proper plaintiff on an application to set aside a statutory demand".

112 In In the Matter of DB Mahaffy & Associates Pty Limited [2012] NSWSC 776, which was also an application under s 459G of the Corporations Act to set aside a statutory demand served on the plaintiff company, after referring to UCPR rule 7.1, Brereton J, at [2], concluded that the individual, who was not a plaintiff in the proceedings, would not have "standing" to be a plaintiff in the proceedings.

113 In a subsequent related matter, In the Matter of DB Mahaffy & Co Pty Limited [2012] NSWSC 1286, Brereton J said:

"2 The substantive proceedings are an application by the plaintiff pursuant to (Cth) Corporations Act 2001, s 459G, to set aside a creditor's statutory demand served on it by the defendant Deputy Commissioner of Taxation. There is no apparent basis upon which an individual, who happens to be the sole director of the company in question, has standing to be joined as a party to the company's application to set aside the creditor's statutory demand, or to make such an application themselves. The proper plaintiff, and the only proper plaintiff, in such proceedings is the company on which the demand has been served. There is therefore no apparent basis upon which Mr Mahaffy as an individual can be joined as a party to the proceedings.

3 The application is made in light of a judgment I gave on 2 July 2012 [In the Matter of DB Mahaffy & Co Pty Limited [2012] NSWSC 776], in which I made orders that unless a notice of solicitor acting was filed by a legal practitioner retained by the plaintiff, the proceedings be stayed. That order was made in circumstances that the present proceedings had purportedly been brought by the company DB Mahaffy & Associates Pty Ltd without a solicitor acting for it. As I then pointed out, (NSW) Uniform Civil Procedure Rules 2005, r 7.1(2), provides that a company within the meaning of the Corporations Act may commence and carry on proceedings in any court by a solicitor or by a director of the company, but r 7.1(3) provides that in the case of proceedings in the Supreme Court, a company can commence proceedings by a director "only if the director is also a plaintiff in the proceedings". Mr Mahaffy is not also a plaintiff in the proceedings, and does not have standing to be a plaintiff in those proceedings."

114 The scheme of the UCPR also gives support to this construction. For example, UCPR rule 6.12 requires a statement of claim to specifically state the relief claimed by the plaintiff. UCPR rule 13.4 provides that if in any proceedings it appears to the court that in relation to the proceedings generally, or in relation to any claim for relief in the proceedings no reasonable cause of action is disclosed the court may order that the proceedings be dismissed generally or in relation to that claim. UCPR rule 14.28 provides that the court may, at any stage of the proceedings order that the whole, or any part, of a pleading be struck out, if the pleading discloses no reasonable cause of action or other case appropriate to the nature of the pleading.

115 Thus, the director who seeks to commence or carry on proceedings on behalf of the company must be a plaintiff who is not likely to be removed, and the proceeding by him, or her, should be one that is not likely to be struck out, because, for example, he, or she, has no, or no reasonable, cause of action, disclosed against the defendant. If that were not so, every relevant company, by complying with the requirements of UCPR rule 7.2, and by the joinder of a director as a plaintiff, could be represented by that director without more.

116 Having read the pleadings, Mr Tydeman, in a legal sense, is a stranger to the controversy between Tanamerah and the Defendant. His only connection appears to be as a director of Tanamerah and as a witness in the proceedings.

117 In my view, Mr Tydeman is not a "plaintiff" in these proceedings in the sense required under UCPR rule 7.1(3), because he does not have a cause of action against, or claim for relief from, Tibra. Merely to be named as a plaintiff because he has the authority of the company to commence or carry on the proceedings on behalf of the company does not bring him within UCPR rule 7.1(3).

118 Finally, the way in which I have interpreted UCPR rule 7.1 is consistent with the overriding purpose in s 56 of the Civil Procedure Act. To interpret the rule in the way submitted for by Mr Tydeman will not do so.

119 It follows that the first basis upon which Mr Tydeman relies to justify the continuation of Tanamerah's proceedings fails. On that basis, he could be removed as a plaintiff.

120 I turn then to the issues under UCPR rule 7.11. The first question is whether the proceedings are proceedings "relating to a trust".

121 In the Amended Statement of Claim, under the heading "Type of Claim", there appears "Breaches of Shareholders' Agreement; Misrepresentation of Shareholders' Agreement" and "Intentional Tort (theft of property - Shares)". These accurately identify, in a summary way, the claims for relief in the amended Statement of Claim. Apart from the reference to Tanamerah as the trustee of the Alexander Superannuation Fund, there is no other reference to the Trust.

122 In Clerical, Administrative & Related Employees Superannuation Pty Ltd v Bishop (1997) 76 IR 139, Northrop J, at 140-141, said:

"The words "superannuation" and "superannuation fund" are in common use but the concept of a superannuation fund is not always fully understood. ... Essentially a superannuation fund is based upon principles of equity. Essentially, a superannuation fund is created by a trust deed under which a fund, or other assets, are held by a trustee upon the trust expressed in the trust deed. Persons entitled to the benefits of the trusts, commonly are known as members, and although members are not parties to the deed, they are able to enforce their rights against the trustee by legal proceedings. The funds held on trust can be added to by contributions made by persons including members. Members can constitute a class of persons. Employees constitute a common class of persons receiving benefits under superannuation funds, the benefits being defined and payable in conformity with the terms of the trust deed.

In Australia, taxation concessions, including an exemption from income tax, were granted with respect to income received from specified types of funds, including superannuation funds, established for the benefit of employees... Interesting expositions relating to the nature of superannuation funds for the benefit of employees are given by Windeyer J, in Scott v Comissioner of Taxation (Cth) (No 2) (1966) 40 ALJR 265 at 278 9 and by Kitto J, in Mahoney v Commissioner of Taxation (Cth) (1967) 41 ALJR 232. In Re Coram; Ex Parte Official Trustee & Bankruptcy v Inglis (1992) 36 FCR 251, a case in which the question was whether the interest of a member of a Superannuation Fund vested in his trustee and bankruptcy upon him becoming a bankrupt. O'Loughlin J, at 253-254, in a very helpful analysis of the nature of a superannuation fund quoted those two passages by Windeyer J and Kitto J."

123 Thus, a superannuation fund is a particular species of trust.

124 However, merely because there is a superannuation fund that holds the shares that are referred to, and because the trustee of that fund is bringing proceedings, does not necessarily mean that the proceedings are "proceedings relating to a trust".

125 In Tooheys Ltd v Commissioner of Stamp Duties (NSW) [1961] HCA 35; (1961) 105 CLR 602, Taylor J, at 620 said of that phrase:

".. the expression ... is extremely wide but it is also vague and indefinite. Clearly enough it predicates the existence of some kind of relationship but it leaves unspecified the plane upon which the relationship is to be sought and identified. That being so, all that a court can do is to endeavour to seek some precision in the context in which the expression is used."

126 His Honour went on to say, at 620, that "relating to" in the context there considered was not the 'equivalent of "referring to"'; the relationship between two different things must be based upon some more substantial ground.

127 In Oceanic Life Ltd v Chief Commissioner of Stamp Duties (NSW) [1999] NSWCA 416; (1999) 168 ALR 211; 154 FLR 129 Fitzgerald JA said, at [56]:

"The width of the phrase 'relating to' is undoubted. Lord Macnaghten stated that '[t]here is no expression more general or far-reaching': Commissioner of Inland Revenue v Maple & Co (Paris) Ltd [1908] AC 22 at 26. See also Fountain v Alexander [1982] HCA 16; (1982) 150 CLR 615 at 629; Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 29 FCR 429; Secretary, Department of Foreign Affairs and Trade v Boswell (1992) 36 FCR 367; PMT Partners Pty Ltd (In Liq) v Australian National Parks and Wildlife Service [1995] HCA 36; (1995) 184 CLR 301 at 329-330, although the addition of the words 'or depending on' was presumably intended to give the combined phrase 'relating to or depending on' a wider operation than 'relating to'. The difficulties of construction presented by such language have also been noted. Taylor J observed that '... the expression 'relating to' ... is ... vague and indefinite ...' and '... leaves unspecified the plane upon which the relationship is [to be] sought and identified': Tooheys Ltd v Commissioner of Stamp Duties [1961] HCA 35; (1961) 105 CLR 602 at 620. One area of debate has been whether, in particular legislation, a relationship need or need not be 'direct' or 'direct and immediate': see, for example, Ausfield Pty Ltd v Leyland Motor Corporation of Australia Ltd (No 2) (1977) 14 ALR 457 at 460, 462; 30 FLR 477 at 480, 483; Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 364 and 370; Joye v Beach Petroleum NL [1996] FCA 1552; (1996) 67 FCR 275 at 285; see also Perlman v Perlman [1984] HCA 4; (1984) 155 CLR 474. Overall, the position judicially adopted has been that the operation of the phrase 'relating to' is determined by the statutory context and purpose: Butler v Johnston (1984) 4 FCR 83 at 87; Hatfield v Health Insurance Commission (1987) 15 FCR 487 at 491."

128 In Black's Law Dictionary (5th ed.), the meaning of "relates to" includes "to have bearing or concern", "to pertain" and "to bring into association with or connection".

129 Whilst I accept that the term "relating to a trust" should not be given a narrow meaning, and that it is an expression of "an expression of wide and general import" (Fountain v Alexander [1982] HCA 16; (1982) 150 CLR 615, at 629), in the present case, no relief is sought in respect of the trust. Nor is the claim one in which the trust is the main, or central, issue.

130 To the contrary, the involvement of Tanamerah, as trustee, is merely because Tibra issued shares to the Trust, which shares were held by the trustee in its name. There is no dispute about the ownership of those shares and even if Tanamerah is successful in its claims, there will be no dispute about how the proceeds of any judgment are held. Other than the manner in which the shares are owned, there is no logical or reasonable connection with the Trust. Accordingly, it cannot be said that the proceedings can be characterised as "proceedings relating to a trust " so as to attract the operation of UCPR rule 7.11

131 I am not satisfied that the proceedings, in this case are "relating to a trust". Even if I am wrong, as will be seen, the trustee, Tanamerah, is a party to the proceedings and Tibra presently seeks no relief in relation to claims brought by Tanamerah.

132 In my view, Mr Tydeman is not a trustee of the Alexander Superannuation Fund. He acknowledged that he was not. He sought to derive comfort from the fact that "directors of any superannuation trustee company must also be trustees of the fund by virtue of the fact they have fiduciary and management duties". I do not agree. That is not the context in which the word "trustee" is used in UCPR rule 7.11, particularly in circumstances in which the case involves the trustee of a superannuation fund who is a party to the proceedings.

133 In paragraph 1 of the amended Statement of Claim, Tanamerah is identified as the sole corporate trustee of the Alexander Superannuation Fund. The affidavit of each of Mr Tydeman and Ms Tydeman included in the amended Statement of Claim, to which I have earlier referred, confirms that statement. Finally, the Trust Deed specifically identifies Tanamerah as the "Trustee".

134 Mr Tydeman's reliance on the definition of "trustee" in Commonwealth taxation legislation is not relevant in circumstances where the meaning of the word "trustee" as used in UCPR rule 7.11 is clear.

135 Furthermore, in order to deal with the submission, I note that each of the sections of the Commonwealth Acts relied upon, specifically differentiates between "the trustee" and "the person who manages the fund" or "the director of the body corporate which is the trustee of the fund" and "the person having, or taking upon himself, the administration or control of income affected by any express or implied trust, or acting in any fiduciary capacity". The UCPR rule relied upon does not make any distinction. It simply refers to the "trustee" of the trust.

136 In the circumstances, I reject the submissions of Mr Tydeman and reliance upon UCPR rule 7.11.

137 I then turn to UCPR rule 7.12. It is not necessary to repeat what has been said about "proceedings relating to a trust".

138 Even if I am wrong, I note that the Trust Deed specifically states that with limited exceptions, a Member has no right to, or interest in, the Fund. However, under the Superannuation Industry (Supervision) Act, a "beneficiary", in relation to a fund, scheme or trust, is defined as meaning "a person (whether described in the governing rules as a member, a depositor or otherwise) who has a beneficial interest in the fund, scheme or trust and includes, in relation to a superannuation fund, a member of the fund despite the express references in this Act to members of such funds". I have earlier referred to s 17A of the Superannuation Industry (Supervision) Act.

139 As I have said, although he is a member, I do not know what interest, if any, he has to any funds in the Alexander Superannuation Fund. There is no evidence of any contributions made by him, or on his behalf. Accordingly, he has not established that he does have a beneficial interest under the trust.

140 However, even if Mr Tydeman does have a beneficial interest under the trust, even though one in which an identified part of the trust cannot be said to be held upon trust for him, the appropriateness of joining him will depend upon the extent to which the trustee protects his interests under the trust. The usual case for the joinder of beneficiaries is in circumstances in which the outcome the plaintiff seeks, if achieved, will adversely affect the interests of the beneficiaries and there is no party who is able to contradict the contentions, both as to fact and law, advanced by the plaintiff. Nor are the persons with a beneficial interest in the trust entitled to an opportunity to contest the grant of the relief the plaintiff seeks.

141 In Personalised Transport Services Pty Ltd v AMP Superannuation Ltd [2005] NSWSC 396, Barrett J, at [22], referred to the predecessor of the rule (Part 68 rule 5 of the Supreme Court Rules, which was relevantly the same) as follows:

"It is often the case that trust beneficiaries, although proper parties to litigation, are not necessary parties. The need for them to be parties will not, in a practical sense, arise if their interests are to be represented by the trustee. The matter is put thus at p 187 of the eighth edition (1914) of "Daniel's Chancery Practice":

According to the practice of the Court of Chancery all cestuis que trust were, subject to certain exceptions and statutory relaxations, necessary parties to suits against their trustees, by which their rights were likely to be affected; but according to the practice of the High Court, trustees may be sued on behalf of or as representing the property or estate of which they are trustees without joining any of the persons beneficially interested in the trust or estate, and are to be considered as representing such persons in the action; but at any stage of the proceedings any of such persons may be ordered to be made parties either in addition to, or in lieu of, the previously existing parties."

142 It may also depend upon "whether his rights against, or liabilities to, any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action": Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52, at 55-56.

143 In this case, I am of the view that Mr Tydeman is neither a necessary, nor a proper, party to the litigation between Tanamerah and Tibra. There is no suggestion that his rights are being affected by the making of the orders sought, or the relief claimed, by Tanamerah against Tibra. The outcome Tanamerah seeks against Tibra, if achieved, will not adversely affect his interests. Tanamerah, in commencing and carrying on the proceedings, is representing the interests of all of the "Members" of the Alexander Superannuation Fund and will continue to do so. There is no reason for it not to, particularly in circumstances where the only two Members are the only directors and where there is no dispute between them, as Members or directors, and Tanamerah.

144 In considering UCPR rule 7.11 and 7.12, I am of the view that the person who is sought to be joined should, in each case, be a necessary and proper party to the proceedings. As I have said, in this case, each Member's interest is being represented by Tanamerah and there is simply no need for Mr Tydeman to be joined as a party other than, so it would seem, to enable Tanamerah to be represented by a director when, under UCPR rule 7.1, it cannot be. Such a result is not one that would achieve the objects of the Civil Procedure Act.

145 I have also considered case management principles and UCPR rule 6.24 which rule aims to ensure that all matters in dispute are effectually and completely determined. The joinder of Mr Tydeman as a person having a beneficial interest under a trust would not minimise time and costs in the litigation, which is one of the modern notions of case management: Woodings v Stevenson [2001] WASC 174 at [24]; (2001) 24 WAR 221, 226 - 227; referred to, with approval, in Martin Bruce Jones as Receiver and Manager of Miami Waterfront Developments Pty Ltd v Miami Waterfront Developments Pty Ltd [2012] WASC 483 at [31].

146 In all the circumstances, subject to s 14 of the Civil Procedure Act, I am of the view, that Mr Tydeman's reliance on UCPR rules 7.1, 7.11 and 7.12 does not enable him to commence or carry on proceedings on behalf of Tanamerah. I turn then to that section.

147 In relation to dispensing with the rules to allow Mr Tydeman to appear by dispensing with the rules under s 14 of the Civil Procedure Act, the court must be satisfied that it is "appropriate to do so in the circumstances of the case".

148 The power granted to the court by s 14 is a broad one and, in the light of s 57 and s 58 of the Civil Procedure Act, must also be exercised so as to promote the objectives stated in s 56. The discretion is unfettered but is to be exercised judicially and according to the requirements of justice.

149 Importantly, there is nothing in s 14 that now requires "special" or "exceptional" circumstances. Nor should the section be given a narrow construction.

150 Kirby P (although in the minority) said in Bay Marine Pty Ltd v Clayton Country Properties Pty Ltd, at 108, in relation to a similar rule, that it "was designed to bring into the general practice of the court the approach of courts of equity to their rules. It was long ago said that "the rules must be the servant not the master of the court: see Clune v Watson (1882) Tarl 75"."

151 The onus of establishing facts that would lead the court to be satisfied rests on the party seeking an order dispensing with the rules, in this case Tanamerah. There is no guidance in the section as to the matters that would, or would not, lead the court being so satisfied. The court should take into account not just the interests of the party seeking dispensation, but also the interests of the other party or parties, as well as the proper and efficient administration of justice.

152 There have been a number of cases that give consideration to matters that may be considered by the court. In this regard, I cannot do better than quote from the decision of Stein JA (with whom Mason P and Sheller JA agreed), albeit the decision is one given in the broader context of considering whether an unqualified person should be granted leave to appear for an otherwise unrepresented party, in Damjanovic v Maley [2002] NSWCA 230, (2002) 55 NSWLR 149, in which his Honour set out the principles that he had distilled from other authorities:

"Principles from the cases

[69] A number of themes or principles run through the cases which are relevant to the exercise of the discretion to grant or refuse leave to an unqualified person to appear on behalf of an unrepresented litigant. They may be briefly summarised as follows:

(a) The complexity of the case

[70] Whether the case is one of complexity or minor or straightforward has often been seen as a discretionary factor. ...

(b) Genuine difficulties of the unrepresented party

[72] These include matters such as unexpected language difficulties and emergencies. ...

(c) The unavailability of disciplinary measures and a duty to the court by lay advocates

[74] Almost every case mentioned these matters as protection for a client when a qualified lawyer represented a party but were protections which were not available where an unqualified lay advocate appears. ...

...

[76] In my opinion, the overall duty of a barrister or solicitor to the court is an important consideration. It is a duty of candour and a practitioner must not knowingly mislead the court. The court is entitled to place reliance on that duty and expect it to be met. The disciplinary codes of the legal profession back up the overriding duty of a practitioner to the court. (See D A Ipp, "Lawyers' Duties to the Court" (1998) 114 Law Quarterly Review 63).

[77] Training, qualifications and experience are also important. This is not to say that there are not incompetent lawyers, including some who seek to practice advocacy. For the most part, the market and the disciplinary codes account for them. But with unqualified and uninsured lay advocates, the court loses the benefit of the overriding duty and clients are at a distinct disadvantage. Apart from endeavouring to ensure that a lay person granted leave to appear obeys the rules, there is little a court can do except, in an appropriate case, withdraw the leave to appear. ...

(d) Protection of the client and the opponent

[79] Lay advocates are unqualified, unaccredited and uninsured. This places a client at considerable risk. ...

[80] One should also not lose sight of a lawyer's duty to his/her opponent. ...

(e) Lay advocates in inferior courts and tribunals

[81] There are indications in some of the cases that Local Courts, given their jurisdiction and large numbers of unrepresented litigants, may be more likely to grant leave to unqualified persons. This is, one assumes, in straightforward uncomplicated matters where the party is under some disability in presenting his/her own case. This may also be the case with some specialist jurisdictions and tribunals.

[82] The authorities however suggest that higher courts should be very chary at giving leave. ...

(f) The interests of justice

[83] What runs through all of the authorities as the guiding principle in the exercise of the discretion is the public interest in the attainment of the ends of justice. The public has an interest in the effective, efficient and expeditious disposal of litigation in the courts. As a general rule this can best be achieved by parties employing qualified lawyers.

[84] The reason for this was explained by Gleeson CJ in a speech given to the Supreme Court of Japan in January 2000 (Current Issues for the Australian Judiciary). The Chief Justice said that:

The adversary system assumes, in the interests of both justice and efficiency, that cases will be presented to courts by skilled professionals. To the extent to which that assumption breaks down, so does the system.

[85] Representation by legal practitioners will not always be possible because of the high cost of legal services and restrictions on legal aid. There is therefore room for the discretion to be exercised in an appropriate case, as indeed the authorities make plain and in circumstances where the achievement of justice cannot be otherwise secured.

[86] Nonetheless, the foundation for the general principle and limited room for the discretion to be exercised is, as Mahoney AP said in Scotts Head, the proper administration of justice and the protection of the parties. It is not a rule devised to protect a lawyer's privilege or monopoly. Access to justice is a difficult issue in an ever more complex society with constraints on public resources. It will therefore be understandable and appropriate that judges will from time to time be prepared to grant leave to an unqualified person. Advocacy before courts is however a difficult skill to acquire without formal qualifications, training and practice. Ultimately perhaps governments may take up some of the recommendations of the Access to Justice Report referred to earlier."

153 In Helmhout v Apostoloff & Ors; Reynders v Commonwealth of Australia & Anor; Dempsey-Fiddes v Commonwealth of Australia & Anor [2011] ACTSC 2, Refshauge J, after referring to the matters referred to by Stein JA, added, at [46], that "in relation to corporations, it is also relevant to have regard to whether the director is a sole director or the real force behind the company and where the lay advocate is an agent, including a director, regard should be had to the nature of the holding of equity capital in the company. Despite what was said by Keely J in Molnar Engineering Pty Ltd v Burns [1984] FCA 232; (1984) 3 FCR 68, the weight of authority seems to suggest that this is a relevant factor".

154 The passage quoted was referred to, with approval, by Flick J, in Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia (No 12) [2012] FCA 289 at [21].

155 I shall deal with each of the matters referred to.

156 I have earlier referred to the nature of the case being advanced by Tanamerah in the amended Statement of Claim. There is little doubt, in my view, that in its present form, the case being advanced is complex. Mr Tydeman did not suggest otherwise, although he did submit that if there were separate determination of questions, the complexity might be reduced.

157 Unfortunately, that is speculation only. The final form of separate questions that might be determined, have not been identified, and it is far from certain that such an application, if made, would succeed.

158 Furthermore, based upon the evidence that I have read, it is highly unlikely that the parties would be able to agree on the questions that might be determined separately and the consequences that would flow from that separate determination.

159 (In these circumstances, I do not propose to deal in more detail with the submissions made on behalf of Tibra, which I have carefully read.)

160 Whilst Mr Tydeman has no difficulty with language, I do think that he will have difficulties in relation to the substantive hearing. He is not legally qualified and the amended Statement of Claim raises complex questions upon which submissions on the facts and the law may be required. Training, qualifications and legal experience, in a case such as this, would benefit Tanamerah.

161 With no disrespect intended, the fact that neither he, nor Ms Tydeman, seems to appreciate the potential difficulties, confirms that he, and therefore, Tanamerah, is likely to suffer genuine difficulties in a substantive hearing.

162 Mr Tydeman is unqualified, unaccredited and uninsured. This places Tanamerah at a considerable risk. The fact that its two directors do not seem to appreciate this risk is significant, and, in my view, also demonstrates a lack of objectivity on the part of each of them.

163 I accept Tibra's submission that if a solicitor were retained to act for Tanamerah, many of the claims made in the amended Statement of Claim may well not be pursued (or at the very least would be able to be properly pleaded) in a further draft pleading. Tibra has already threatened a strike out application in relation to some or all of the amended Statement of Claim.

164 I have grave doubts that Mr Tydeman would be able to draft the necessary amended pleading.

165 If the matter proceeds to a final hearing on the merits, it is clear that it would involve evidence, upon which there may be the need for cross-examination, and complex questions of facts and law, including the proper construction of the Shareholder's Agreement. It would be inappropriate for such an action to be litigated without the services of a solicitor.

166 Furthermore, as was acknowledged by him, Mr Tydeman is likely to be a principal witness on behalf of Tanamerah and there may be other witnesses called on its behalf. Even if most of the evidence were documentary, this would, of itself, cause some difficulties in, for example, taking instructions from the other witnesses and preparing affidavits upon which it is intended to rely. I refer to Pacific Air Freighters (Qld) Pty Ltd v Toller [2000] FCA 343; 171 ALR 519, per Drummond J, at [7]; and Cytel Pty Ltd v People Bank Recruitment Pty Ltd [2006] FCA 985, per Bennett J, at [9].

167 I cannot be satisfied that Mr Tydeman will be able to properly manage Tanamerah's case, including its preparation, while in the role of the principal witness.

168 There are likely to be witnesses called by Tibra who may have to be cross-examined. This will present its own difficulties, not only for Mr Tydeman but also for the court if Tanamerah remains legally unrepresented.

169 It is likely that the costs of the proceedings would be increased if Mr Tydeman were to carry on the proceedings on behalf of Tanamerah. Experience dictates that this is so when a lay advocate appears. Sometimes, cross-examination takes longer. Furthermore, it may be necessary for a trial Judge to explain things to Mr Tydeman that would be unnecessary with a solicitor or barrister appearing at the hearing.

170 I cannot forget, in this case, that a self-managed superannuation fund is involved and in my view, it would be in the interests of its members if the trustee retained a solicitor to carry on the proceedings on its behalf.

171 The interests of justice, in my view, are all one way. In this regard, it is not only the rights of Tanamerah that I must consider. I must also consider the rights of Tibra. For the reasons expressed above, and for the additional reasons that I shall express below, I am of the view that the interests of justice do not favour dispensing with the rules.

172 It was said in Molnar Engineering Pty Ltd v Burns, at 73-75:

"The common reason for a company seeking to proceed without qualified assistance is, no doubt, that the company does not have the funds to engage such assistance. One would suppose that a company might successfully support an application to sue or defend without qualified assistance, not only where the company is bereft of funds, but also where having regard to the necessary or reasonable commitments of the company, the appropriation of funds to engage qualified assistance for the litigation in question would create financial difficulties with which the company could not cope, or with which it ought not be required to cope. ...

Similarly the identity of the shareholders and the spread of the shareholding would be relevant. So also would the capacity of a person by whom the litigation might be commenced and carried on."

173 In the exercise of discretion, a consideration is the reason advanced for not retaining a solicitor: Simto Resources Ltd v Normandy Capital Ltd (1993) 10 ACSR 776, at 782. Here, no rational reason has been advanced for Tanamerah not commencing, or proceeding, with a solicitor. Even if Mr Tydeman has had difficulties with some solicitors (about which there is only his statement, without example), I am able to take judicial notice that there are over 25,000 solicitors in New South Wales, of which about 17,000 work in private practice and that nearly 13,000 solicitors work in the Sydney CBD: 2011 Profile of Solicitors in NSW - Law Society of NSW.

174 I have no doubt that there would be at least one solicitor who Mr Tydeman and/or Tanamerah would not find "untrustworthy". There is no suggestion that any effort has been made to locate such a solicitor.

175 Furthermore, there is no suggestion that Tanamerah will be forced to abandon its claim if Mr Tydeman is not permitted to carry on the substantive proceedings.

176 I have no financial information about Mr Tydeman. The acknowledgment that "he may be liable to pay some or all of the costs of the proceedings" does not matter if such an order, ultimately, were made and he was unable to satisfy that order.

177 I have earlier referred to part of the written submissions that criticised, in my view, unjustifiably, the conduct of Tibra's solicitor and counsel. The unavailability of disciplinary measures and a duty to the court by lay advocates does not assist Mr Tydeman. Such allegations, particularly as they appear to be unfounded, and unjustified, when taken with a demonstrated suspicion of Tibra's solicitors, in circumstances where they were offering to assist him, may well lead to delay and unnecessary expense in the conduct of the proceedings.

178 In all the circumstances, I am not satisfied that it is appropriate to dispense with the requirement of the rules and I refuse the application.

179 I order that:

(a) James Scott Tydeman be removed as a party/Plaintiff in the proceedings.

(b) The Plaintiffs' notice of motion filed on 31 October 2012 is dismissed.

(c) Unless by 20 February 2012, a notice of legal practitioner acting has been filed and served by a solicitor retained by Tanamerah Estates Pty Limited, the proceedings be stayed.

(d) Tanamerah Estates Pty Limited and Mr Tydeman are to be jointly and severally liable to pay the Defendant's costs of the notices of motion.

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Decision last updated: 06 February 2013