WORLD WINGS PROPERTY INVESTMENT CO PTY LID v STEVENSON and Anor SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER, HANDLEY and POWELL JJA 19 October 1993, 19 October 1993 [1993] NSWCA 294 FACTS: The major shareholder/director of the appellant company sought leave to represent the company without counsel in two matter, one concerning the Dividing Fences Act, the other negligence, nuisance and breach of statutory duty, arising from excavation work carried out on the neighbouring property. The appeal includes as a ground a costs order against the successful plaintiff, in light of the substantial failure that the award of $5,000 represented. HELD:(per curiam) (1) (by majority) A company must be represented by a barrister or a solicitor: Ptl1 R3 of the New South Wales Supreme Court Rules, and Bay Marine Pty Ltd v Clayton Country Properties Pty Ltd (1987) 5 ACLR 38. (2) (per Handley JA) The court can, at its discretion, give leave to a major shareholder/director to outline the nature of its arguments. Here the appeal in the Dividing Fences Act matter is without merit, as is the appeal on the excavation matter. The costs order against the successful plaintiff is authorised by the District Court Act - Might v Clifton [1971] Ch 700. (3) (obiter) An appeal against a decision of the Supreme Court made under s104 of the Justices Act to the Court of Appeal exists not as of right, but by leave of the court. ORDERS: (1) Notice of Motion seeking leave for Mr Valassis to appear dismissed with costs. Meagher JA The court today has before it two appeals: one is World Wings Property Investment Co Pty Ltd against Mr Michael and Mrs Merica Bucknell, the other is World Wings Property Investment Co Pty Ltd against J Stevenson and Ors. In the former case Mr Burchett of counsel represents Mr and Mrs Bucknell. In the latter case Mr Burchett also represents Mr and Mrs Bucknell there being no appearance for Miss J Stevenson. However, there is no person with the right to appear who represents the appellant in either case. The appellant is a company most of whose shares are owned by a Mr Dennis Valassis who is also a director of the company. Mr Valassis in each appeal has put on a notice of motion dated 25 February 1992 seeking the court's leave to permit him to appeal on behalf of the appellant company. The registrar of the Court of Appeal as long ago as 21 October 1991 drew Mr Valassis' attention to the provisions of Pt11 R1(3) and the authority of this Court on that rule in Bay Marine Pty Ltd v Clayton Country Properties Pty Ltd (1987) 5 ACLR 38. We have asked Mr Valassis who is the moving party in the motions to explain why we should grant leave to him to represent the appellant company in either case and in my view he has been unable to supply any reason. In my view the inevitable result therefore is that the notice of motion must be dismissed with costs in each case. 2 UNREPORTED JUDGMENTS Handley JA Mr Dennis Valassis, a director and substantially the sole shareholder of World Wings Property Investment Co Pty Ltd has sought the leave of the Court to appear on behalf of that company and to argue the two cases which are listed for hearing this morning. The general rule in the Supreme Court Rules Ptl1 R1(3) is that a company must act by and through a solicitor. The ultimate basis of this rule is that a company is a fictitious legal person who cannot appear itself as a natural person can. Since it cannot appear by itself it must appear by an agent and in our courts the only agents who are allowed to appear for litigants are solicitors and barristers. Nevertheless in the past the Court has from time to time as a matter of discretion permitted a director and shareholder who appeared to have the authority of the company to outline the arguments for it. Although the majority of this Court thinks that Mr Valassis should be refused leave to appear on behalf of the company, for my part I would relax the rule referred to to the extent necessary to permit Mr Valassis to outline the nature of the arguments that he would present in the two appeals. I would merely add for myself that having read the papers in the two appeals it seems to me that both are without substance and in any event would fail. I have not, of course, heard Mr Valassis on those matters but I have read the decisions of the judges at first instance and I have read and considered the written submissions that have been prepared by Mr Valassis and by Mr Burchett of counsel on behalf of the appellants and respondents in each case. In the first of the cases (40564/91) Mr Valassis has appealed as of right from a decision of Loveday J of 30 August 1991. The judge held that there was no basis for ordering a magistrate of the Local Court, who had heard proceedings under the Dividing Fences Act between the company and its neighbours, Mr and Mrs Bucknell, to state a case to the Supreme Court under the Justices Act. Ihave read the transcript of the proceedings before the Local Court magistrate, and it seems clear enough that the Local Court had jurisdiction under the Dividing Fences Act to order the company to pay half the cost of the dividing fence erected pursuant to an earlier order of the Local Court. The company obtained that order but it did not construct the fence. Following that default s10 of the Dividing Fences Act 1951 authorised the Bucknells to erect the fence that had been authorised by the order of the Local Court and s17 of the Act permitted them to recover half the cost from the company. Having failed, the company asked the magistrate to a state a case. S103 of the Justices Act provides that a justice may refuse to state a case if he or she is of the opinion that the application is merely frivolous. The magistrate took that view and refused to state the case. Under s104 of the Justices Act, where a justice refuses to state a case the Supreme Court may, by order, direct the justice to do so. That was the jurisdiction exercised by Loveday J. The learned judge concluded that there was no basis for directing the magistrate to a state a case. In other words, a magistrate has held that the application was frivolous and a judge of the Supreme Court has agreed and has refused to order her to state a case. I can see no basis for concluding that the proceedings before the Local Court involve any question of law, and it seems to me that the appeal before us, even if it were competent, is frivolous. I leave to one side the question whether an appeal as of right lies to this Court from the decision of Loveday J. I am inclined to think there was no appeal as of right. In other words, it seems to me that if Mr Valassis had been permitted to WRIRLD WINGS PROPERTY INVESTMENT CO PTY LTD v STEVENSON and Ang (Powell JA) outline the nature of the case that he wished to present on this appeal, the inevitable result would have been that after a short time his leave to appear would have been withdrawn and the appeal would have been dismissed. Nevertheless, as I have said, I would have been disposed myself to have granted him a limited leave to appear. The second case is an appeal as of right from a decision of Shillington DCJ. The case was one of negligence, nuisance and breach of statutory duty brought by the company against the Bucknells, the causes of action allegedly arising out of excavation work conducted by the Bucknells on their property next door. After a long hearing the learned trial judge refused to award the company its claim for $72,000 damages and held that the appropriate award was $3,000. The plaintiff company thus substantially failed in its claim. Its expert witness on the question of damages, a Mr DK Martin, was rejected by the trial judge who preferred the expert witnesses for the defendants. In these circumstances his Honour declined to order the defendants to pay the company's costs and, in fact, ordered the company to pay the defendants' costs. The net result of these orders is that the company would owe money to the Bucknells. Ihave considered the grounds of appeal and the written submissions but again I have formed the view that this appeal is entirely hopeless. I have not heard Mr Valassis in person but I do not suppose that he would be able to add a great deal to his written submissions. The question of whether the damages should have been $72,000 rather than $3,000 depended entirely upon the evidence of Mr Martin, whom the trial judge rejected. It is practically impossible for this Court to reverse a finding by a trial judge who has, for reasons such as those given by Shillington DCJ, rejected an expert witness and preferred the evidence of others. This is especially so where the party bearing the onus of proof, as the company did in the proceedings before Shillington DCJ, failed to discharge that onus at the trial. The only other matter I need refer to is the question of his Honour' 8 order that the successful plaintiff pay the defendants' costs. Such an order is authorised by the relevant section of the District Court Act. See Knight v Clifton [1971] Ch 700. I have therefore again reached the conclusion that had the Court, as I would have preferred, granted Mr Valassis leave to appear for the limited purpose of outlining his arguments on behalf of the company, the inevitable result would have been that within a short time his leave to appear on behalf of the company would have been revoked and the appeal would have been dismissed. Powell JA If I had been persuaded that Mr Valassis would have been able to provide the court with even passable assistance in considering the questions sought to be raised on each of these two appeals, I would have been disposed to consider granting him leave to appear on behalf of his company. However, having spent many hours during the course of the weekend reading the appeal papers in each of the matters, in reading the supplemental affidavits which were thereafter filed by Mr Valassis and in reading the written submission which he provided, I have concluded, first, that he has not the slightest comprehension of what is a point sufficient to justify an appeal, whether as of right or by leave; and second, that he would have provided not the slightest assistance whatsoever to the court in considering any of the matters that have been sought to be raised. It is for those reasons, coupled with those advanced by his Honour Meagher JA, that I earlier indicated to him that I would not be disposed to grant leave. 4 UNREPORTED JUDGMENTS Meagher JA The order of the court therefore is that in each case the notice of motion seeking leave for Mr Valassis to appear is dismissed with costs. 5 Counsel for the Appellant: Self Solicitors: Self Counsel for the Respondent: S Burchett 10 Solicitor for First Respondent: HK Roberts Solicitors for Second Respondent: Fiddes Pogson Mackay