Multiform Furniture v Jarrett [2003] NSWSC 921

New South Wales Supreme Court

CITATION : Multiform Furniture v Jarrett [2003] NSWSC 921 HEARING DATE(S) : 8 October 2003 JUDGMENT DATE : 13 October 2003 JURISDICTION: Common Law Division JUDGMENT OF : Master Malpass DECISION : Leave to appeal is refused and the Summons is dismissed. I reserve the question of the costs of the appeal.

CATCHWORDS : statutory construction - who may appear for a corporation in the Local Court - employee. Corporations Act 2001, s 9 (C'wealth). LEGISLATION CITED : Local Courts (Civil Claims) Act 1970, s 4, s 11, s 11 subss (1), (1A), (1B) and (1C). Supreme Court Rules 1970, Pt 4 r 4A. CASES CITED : Bay Marine Pty Limited v Clayton Country Properties Pty Limited [1986] 8 NSWLR 104. Club Flotilla (Pacific Palms) Ltd v Isherwood & Ors 12 ACLR 387. Fleur de Lys Pty Ltd t/as Multiform Furniture (Plaintiff) PARTIES : v Kevin Jarrett (Defendant) FILE NUMBER(S) : SC 11005 of 2003 COUNSEL : N/A (Plaintiff) Mr J Chippindall (Defendant) SOLICITORS : T P Boyle & Associates (Plaintiff) Proctor Phair Lawyers (Defendant)

LOWER COURT Local Court JURISDICTION : LOWER COURT 1936 of 1993 Level 5 Downing Centre Sydney FILE NUMBER(S) : LOWER COURT J Huber LCM JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Master Malpass

Monday 13 October 2003

11005 of 2003 Fleur de Lys Pty Ltd t/as Multiform Furniture v Kevin Jarrett

JUDGMENT 1 MASTER: These proceedings were commenced by Summons filed on 24 April 2003. The proceedings when originally brought sought relief by way of appeal in relation to what happened before the Local Court. It was then thought that the plaintiff had an appeal as of right. It was sought to challenge a decision made by the Local Court on 28 March 2003 and costs orders earlier made. 2 These proceedings represent merely one further instance of litigation in a long running feud between the parties that appears to have commenced as long ago as September 1993. The present litigation arises out of a Notice of Motion filed in December 2002. 3 These proceedings came on for hearing on 8 October 2003. By this time the plaintiff was seeking leave to appeal. It was common ground that leave was required because the plaintiff was seeking to challenge an interlocutory judgment or order. 4 The court was informed that the bringing of an appeal in the Summons was the product of error. The application for leave was formally opposed. By consent, the application for leave and the appeal itself were heard together. The only material placed before the court was the transcript of the hearings (including the judgments). 5 Largely, the question that has been argued by the parties is one of construction. It concerns s 11 of the Local Courts (Civil Claims) Act 1970 (the Act). It is in the following form:- " 11. Appearance of parties (1) A party to an action or other proceeding under this Act may appear: (a) in person, (b) by the party's spouse or employee authorised by the party in writing in that behalf, or (c) by a barrister or attorney retained by or on behalf of that party or by an attorney employed (as an agent or otherwise) by an attorney so retained. (1A) The reference in subsection (1) (b) to an employee of a party includes, where the party is a body corporate or other body of persons that may by law sue or be sued, whether in its own name or in the name of any officer or other person, a reference to an officer (including a director or any person having, whether alone or with others, powers of management, direction or control of that body) of that body authorised in writing by that body to appear on its behalf for the purposes of this Act. (1B) Any authority referred to in subsection (1A) may be given for the purposes only of the action or other proceeding specified in the authority, or the purposes of all actions or other proceedings brought, or to be brought, under this Act. (1C) In subsection (1), "spouse" of a party includes a person with whom the party has a de facto relationship within the meaning of the Property (Relationships) Act 1984 . (2) A party to an action or other proceeding under this Act, being an action or other proceeding of a prescribed class, may appear by a commercial agent or by a subagent authorised by that party to act for the party. (3) A person appearing in an action or other proceeding may address the court and examine and cross-examine witnesses. (4) A person who is not a barrister or attorney shall not be entitled to receive or recover a sum of money or other remuneration or consideration for appearing on behalf of another person in a court or before a registrar. (5) Subsection (4) does not operate to prevent an employee who appears on behalf of the employee's employer in the ordinary course of the employee's employment from receiving wages or salary for so appearing. (6) Any statement of claim, application, notice or affidavit that may be filed, made, given, served or sworn by any person for the purposes of this Act may be filed, made, given, served or sworn on behalf of that person by any person authorised by the rules to do so." 6 The Notice of Motion first came before Huber LCM on 13 February 2003. Mr Chapman sought to appear for the plaintiff on the basis that he was an employee authorised in writing. He was said to be a liaison officer. Objection was taken to his appearance. It appears that documentation was tendered and that it may have been received subject to objection. The material is not in evidence before this Court. The transcript suggests that there was a document dated 13 February 2003, signed by Aladdin Fureid (who was the Managing Director of the company), and that it presented Mr Chapman as holding a management position in the plaintiff company and having authority to bind the company in any legal agreement. If those observations accurately represent its contents then it would not have satisfied the requirements of s 11. 7 The objection to his appearance was maintained on the basis that he was not an officer of the plaintiff who had powers of management. After hearing argument, it appears that the learned Magistrate decided that Mr Chapman was not an officer of the company and refused to allow him to appear. The Notice of Motion was adjourned to enable Mr Chapman to present evidence as to his right of standing. 8 It appears that it may have been adjourned to 18 March and that on that day it came before another Magistrate. Also, it appears that the view was taken that Huber LCM was part heard and the Notice of Motion was then stood over before her on 23 March 2003. 9 On 23 March 2003, Mr Chapman again sought to appear for the plaintiff. It appears that this was sought to be done on the basis he was a company secretary. Again there was objection to his appearance. No written authorisation was placed in evidence before the learned Magistrate. However, argument took place as to the proper meaning to be given to the relevant provisions of s 11. 10 The judgment given by the learned Magistrate is in the following terms:- "BENCH: The matter of Fleur De Lys v Kevin Jarret. The defendant made objection to Mr Chapman appearing on behalf of the plaintiff company on the basis that Mr Chapman has no right of appearance pursuant to s 11 of the Local Court Civil Claims (sic) Act 1970. Mr Chapman submits that his right of appearance is grounded by s 11 (1) (b) (sic) that is a party's employee authorised by the party in writing in that behalf. Counsel for the defence submits that s 11 (b) (sic) is to be read down by s 11 (1)A (sic). That is, Mr Chapman must show that he has powers of management, direction or control of that body. It should be noted at this stage that Mr Chapman was refused leave by this Court on 13 February 2003 to appear on behalf of the plaintiff as there was no evidence in admissible form, objection was taken to the form of his position, his role, his function, his powers to bind the company. On the last occasion he sought to tender an authority to appear and act on behalf of the plaintiff in the above matter which was dated 17 April 2002 signed by the plaintiff's company director. The tender of that document was objected to and refused as it was not attached to a sworn affidavit. There is still no affidavit from the company director either attaching this authorisation or any updated authorisation and I have to say that even if it were in admissible form I note that the current proceedings are the notice of motion seeking to remove the permanent stay and that that was commenced on 14 January 2003 well after the authorisation's date and that that authorisation, the April 2002 authorisation, could lot (sic) be seen on the face of it to be seen as authorising the current proceedings. Even if I had been satisfied that Mr Chapman was authorised to appear on behalf of the plaintiff company, which I'm not, I would still have to be satisfied as to his position within the company. Firstly, as to whether or not he was an employee and again, Mr Chapman sought on the last occasion to tender a letter congratulating him on his appointment as a liaison officer. This was objected to on the same grounds and the tender was refused and there has been no attempt to correct the documentation or obtain that date from the director attaching either the letter or a confirmation of his position within the company. The same applies to the letter authorising him to bind the company in any legal document.

Today, Mr Chapman describes himself by way of para 1 of his affidavit dated 26 February 2003 as a company secretary of the plaintiff company. The ASIC extract date of 31 January 2003 which was tendered without objection on 13 February showed Mr Aladdin Fareed as the company director. Today, Mr Chapman seeks to tender and objection was taken but I allowed the tender, an ASIC extract showing that as at 13 February 2003, Mr Chapman was appointed as secretary, that is, he is an officer of the company. However, of course, pursuant to s 204 (f) of the Corporation Act, a secretary holds office on the terms and conditions that the directors determine. There is nothing before me to say what in fact his powers pursuant to the articles of the company as secretary are. Section 11 (1) (A) (sic) also requires of course an officer of a company to be authorised in writing by that body to appear on its behalf for the purposes of this Act. Again, there is no such authorisation before me. I AM NOT SATISFIED THAT THERE IS SUFFICIENT EVIDENCE BEFORE THE COURT TO BRING MR CHAPMAN WITHIN s 11 (1) or (1) (A) (sic) THERE BEING NO APPEARANCE ON BEHALF OF THE PLAINTIFF COMPANY, THE NOTICE OF MOTION IS STRUCK OUT." 11 The learned Magistrate also made an order in the following terms:- "BENCH: THE PLAINTIFF TO PAY THE DEFENDANT'S COSTS FOR TODAY AND 13 FEBRUARY AND INDEED 18 MARCH AS ASSESSED IN ACCORDANCE WITH THE LEGAL PROFESSION ACT." 12 I now turn to the question of construction that occupied most of the argument presented by the parties. However, before proceeding to deal with it I should observe that whether or not the plaintiff be successful on that question the appeal is doomed to failure. Primarily, Mr Chapman was not allowed to appear for the plaintiff because of evidentiary deficiencies (the lack of authorisation in writing as required by s 11) and it has not been demonstrated that the there was error in those findings. The decision on the question of construction seems to be no more than a further reason why he was not allowed to appear. 13 In deference to the arguments put on behalf of the parties and because I am told that it is a contentious issue in the Local Court, I will proceed to express my views on the question of the proper construction of s 11. 14 The court has been told that there is nothing in either the Parliamentary speeches or the amending legislation that throws any light on the intention of the Legislature. 15 I am told that Section 11 (1) was in its present form at the time of the enactment of the legislation and that subs (1A) was a later addition. 16 Subsection (1) enables a party to appear inter alia by an employee authorised by the party in writing in that behalf. It is of general application to any party. It is not restricted in application to those cases where the party is a body corporate or other body of persons. The person seeking to appear has to be an employee and he has to be authorised by the party in writing to appear on behalf of the party for the purposes of the Act. Subsection (1B) prescribes that the authority may be given for the purposes only "of the action or other proceeding specified in the authority, or the purposes of all actions or other proceedings brought, or to be brought, under this Act." The writing must provide authorisation to appear on behalf of the party inter alia in the relevant action or other proceedings. 17 Subsection (1A), like (1C) (which relates to a spouse of a party), presents as being inclusive of what appears in subs (1). The intention of the latter is to widen the dictionary meaning of "spouse". 18 Where the party is a body corporate or other body of persons, the reference in subs (1A) to an employee of the party is expressed to include a reference to an officer (including a director or any person having, whether alone or with others, powers of management, direction or control of that body) of that body authorised in writing by that body to appear on its behalf for the purposes of the Act. 19 The court has been informed that the parties are unaware of any other decision dealing with the question of the proper construction of s 11. The court has been referred to a number of decided cases including Club Flotilla (Pacific Palms) Ltd v Isherwood & Ors 12 ACLR 387 and Bay Marine Pty Limited v Clayton Country Properties Pty Limited [1986] 8 NSWLR 104). These cases have dealt with the question of appearance on behalf of a corporation. The court has also been referred to various provisions (including s 9 of the Corporations Act 2001 and Pt 4 r 4A of the Supreme Court Rules 1970). 20 Leaving aside any question of residual discretion, it seems to me that s 11 was intended as a code for the Local Court which defined who may appear on behalf of a party. There seems to be force in the argument that the section was drafted to meet the particular needs of the Local Court. It is a court which has a large volume of smaller claims. The amounts involved may not justify the incurring of legal costs. It may be inexpedient for the party to appear personally. In the case of corporations there are other appearance considerations. It may be expedient to allow a range of persons to appear. 21 It is not unusual for legislation to contain inclusive definitions. It can be contrasted with a definition which purports to prescribe what a term means (such as those appearing in s 4 of the Act and that of "officer" in s 9 of the Corporations Act 2001). Such definitions are not intended to be exhaustive, but to identify certain of the matters which fall within that which is sought to be defined. 22 I do not consider that (1A) should be construed to either read down or qualify what appears in subs (1). It seems to me that the intention was to widen the literal meaning that may be given to the reference to "an employee" where the party is a body corporate or other body of persons and so meet those other considerations. The reference is expressed to include officers certain of whom may not be regarded as employees (including persons such as directors and other officers having powers of management, direction or control). The term "officer" as it is now defined in s 9 of the Corporations Act has application to a variety of persons. It is defined to mean inter alia a director, a receiver, a liquidator and a trustee. A similar position had prevailed at the time when subs (1A) was introduced into the Act. 23 If Mr Chapman was in fact an employee of the company (such as a secretary appointed in accordance with the Corporations Act) and had been authorised in writing as required by s 11, he was entitled to appear for the plaintiff. 24 Accordingly, I am of the opinion that the learned Magistrate erred in the construction that she gave to s 11. However, for reasons previously mentioned, this error does not entitle the plaintiff to succeed in the appeal. 25 Largely, the appeal is academic. The court was told during argument that prior to the hearing of it a further Notice of Motion had already been brought before the Local Court and determined by it (indeed, it is also on appeal). Events have overtaken what is now before this Court. If the plaintiff had been successful on the appeal, the court could have done little more than set aside the orders made as to costs. 26 Leave to appeal is refused and the Summons is dismissed. I reserve the question of the costs of the appeal. **********

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