ALSONS PTY LIMITED v SUNPOST PTY LTD [1995] NSWCA 17

ALSONS PTY LIMITED v SUNPOST PTY LTD

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MEAGHER JA 3 April 1995

[1995] NSWCA 17

Meagher JA. In the present case the respondent to appeal has filed a notice of motion that the appeal be struck out. The ground on which I am asked to decide the matter is that the appeal has been filed and commenced otherwise than by a solicitor. It was filed apparently by a barrister called Mr Lumley.

It is argued by Mr Conway on behalf of the claimant/respondent to the appeal that this is impermissible. He points to Part 4 rule 4(2) of the Supreme Court Rules which very simply provide:

Except as provided by under any Act, a corporation (other than a solicitor corporation) may not commence or carry on any proceedings otherwise than by a solicitor There is not much ambiguity about that. The strictness with which that rule is

applied by this Court was illustrated by a decision of the Court of Appeal in Bay Marine Pty Limited v Clayton Country Property Pty Ltd 1986 8 NSWLR 104.

The respondent drew this matter again and again to the attention of the appellant, but for various reasons the appellant disregarded or did not receive the communication which the respondent sent to it.

There seems to me no doubt about the correctness of Mr Conway's submissions. The point recently arose directly in a case called Jawaira Pty Limited v Primary Industry Bank of Australia Limited, (unreported, 17 March1995, Master McLaughlin (SC)). In particular Master McLaughlin pointed out that the effect of the 1994 amendments to the Legal Profession Act are to enable a barrister to act as a barrister, that is essentially in the role of an advocate, without the intervention of a solicitor between himself and his client. It didn't go so far as to enable a barrister to act as a solicitor. What Mr Lumley did in the present case was precisely that: to try and act as a solicitor.