SOLOMON v CORPORATE AFFAIRS COMMISSION SUPREME COURT OF NEW SOUTH WALES — CouRT OF APPEAL CLARKE JA 6 April 1992 [1992] NSWCA 235 Clarke JA. This is an application by Mr Solomon to vacate a hearing date which is 27 April 1992. I have been handed a chronology of events which indicates that the notice of appeal was originally filed prior to October 1989. Various procedures have been taken since then but at no stage does Mr Solomon appear to have approached Legal Aid until 3 March. That was a relatively significant date because on the next day there was a call-over at which it was anticipated that a date would be given for the hearing of the appeal. That is in fact what happened on 4 March. Mr Registrar Jupp set the matter down for hearing on 27 April for three and possibly four days. At that time Mr Solomon told the court that he was unrepresented and he was directed to file a notice of motion seeking leave for him to represent the corporate appellants. The present notice of motion which includes the matter with which I am presently dealing was then filed. The basis of the application for vacation is that Mr Solomon has no legal representation and will not be able to present his case properly. I accept that he will be undersignificant difficulties in seeking to argue this case in court. It will, as I see it, be no simple task, but the acceptance of that proposition does not necessarily lead to the conclusion that the date should be vacated. One consideration is whether any benefit would be secured to Mr Solomon if the case was adjourned. In that respect Mr Solomon informed the court that he had been told orally that his application for legal aid had been refused. He had not, he said, had written confirmation of that advice. The plain fact is that the court does not know any more than Mr Solomon has told it, and that is that he has been informed that his application has been refused and upon that basis there would be little benefit in adjourning the case to another date because at the eventual hearing Mr Solomon would be still required to put his own arguments. I have not overlooked the possibility that he might lodge an appeal from any determination of the Legal Aid Commission, but the present position is that he has not so far as the court is aware received a grant of legal aid. Even if, however, there is some slight prospect that he might receive such a grant, the court is obliged to take account of a number of other factors such as the inordinate length between the time of the filing of the Notice of Appeal and the date fixed for hearing and the lateness in the circumstances of the application for legal aid. I have come to the conclusion that no case has been made out for an adjournment of the appeal and I refuse to make order | sought in the notice of motion. Mr Solomon at one stage indicated to the court that if Ithought he was capable of arguing the case then I should refuse his first order. I want to make it quite plain that I have no idea whether he is capable of arguing the appeal but I do 2 UNREPORTED JUDGMENTS recognise, as I have earlier indicated, that he will be under significant difficulties in doing that. Nonetheless, I do not think a case has been made out for a vacation of the date. In par 2 he seeks an order that he be given leave to represent the third to tenth plaintiffs whom he describes as the corporate claimants. The rules are clear that the court will make such an order only if special circumstances are established. See Bay Marine v Clayton Country Properties Pty Limited 8 NSWLR 104. No special circumstances are shown and it seems to me that it is very difficult to accede to the application. I apprehend that the basis of the application is that the companies have no funds to retain lawyers and Mr Solomon should be allowed to speak on their behalf. Even upon the assumption that there are no funds in the various companies, I do not think the case has been made out. The third order sought is that the persons currently carrying on business under the name Peat Marwick should all be joined as respondents in these proceedings. The only reason given in support of that application is that letters have been sent to Mr Solomon and other persons by the second opponent under the letterhead of Peat Marwick. In his submission this was a holding out by Peat Marwick and they should accordingly be joined as respondents. The relevant letters upon which he relies are annexed to his affidavit of 6 March 1992 and they show that Mr McIntosh wrote letters on the letterhead of PeatMarwick. They also make it quite plain, however, that he signed them personally as receiver and I am unable to see any basis upon which the order sought should be made. The outstanding matter therefore is costs, and I note that both the opponents seek orders for costs to include today's hearing and 30 March 1992. Do you want to say anything about costs, Mr Solomon? CLAIMANT: No your Honour, I really can't say much. I will leave it up to you. HIS HONOUR: It is not really leaving it up to me. I have not got much discretion. You have lost the application. The usual order is that you pay the costs. CLAIMANT: Well, where from? HIS HONOUR: I do not order where from. CLAIMANT: I will leave it up to you. I really don't know what to say. HIS HONOUR: The first claimant is to pay the costs of the first and second opponent of this motion which includes the costs of 30 March. Orders accordingly.