DREAMTECH DESIGNS & PRODUCTIONS PTY LTD v CLOWNFISH ENTERTAINMENT LIMITED [2015] NZCA 491

DREAMTECH DESIGNS & PRODUCTIONS PTY LTD v CLOWNFISH ENTERTAINMENT LIMITED [2015] NZCA 491 [20 October 2015]IN THE COURT OF APPEAL OF NEW ZEALANDCA347/2015[2015] NZCA 491BETWEEN DREAMTECH DESIGNS &PRODUCTIONS PTY LTDAppellantAND CLOWNFISH ENTERTAINMENTLIMITEDFirst RespondentCEQT LIMITEDSecond RespondentMICHELLE LOUISE JENSENThird RespondentDAVID MATTHEW SMITHFourth RespondentHearing: 5 October 2015Court: Ellen France P, Wild and Cooper JJCounsel: Appellant in Person (represented by D J Kelly)D L Marriott for RespondentsJudgment: 20 October 2015 at 11.30 amJUDGMENT OF THE COURTA The application for leave for the appellant to be represented by Ms Kelly is declined.B The appellant is to pay the respondents' costs as for an application for leaveto appeal on a band A basis, with usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Wild J)[1] This is an application by the appellant for leave to be represented on this appeal by Ms Deborah Kelly, who is not a lawyer holding a practising certificate in New Zealand.[2] The appellant alleges the respondents have infringed its copyright and misrepresented that the two tourist attractions the respondents operate in NewZealand are authorised by or connected with the appellant's Gold Coast basedbusiness. The appellant applied for an interim injunction. The appeal is against the judgment of Woolford J delivered in the High Court at Auckland on 27 May 2015 declining to grant that interim injunction.1[3] The substantive proceeding is scheduled for trial in the High Court at Auckland over two to three weeks in May 2016.[4] Ms Kelly is a solicitor admitted in Queensland. She holds a current practising certificate. She is married to Mr Gregg Thompson, the proprietor of the appellant. She and Mr Thompson are the directors of the appellant and she is its chief executive officer and in-house counsel.[5] In an affidavit she affirmed on 14 July 2015 in support of this application, Ms Kelly stated:(a) She has been enrolled as a solicitor in Queensland since 1988.(b) She had her own legal practice from 1993 to 2005, when she sold it to concentrate on the family businesses.(c) Her legal practice specialised in business development and planning, property development, town planning, and construction and project and management, and included litigation in those areas.1 Dreamtech Designs & Productions Pty Ltd v Clownfish Entertainment Ltd [2015] NZHC 1143.(d) She has represented the appellant in both courts and tribunals in Australia.(e) She prepared the notice of appeal, with legal assistance. She has also drafted submissions for the substantive appeal, and intends to seek legal assistance before presenting them orally in this Court.(f) This is not a complicated appeal and she believes she can argue it for the appellant competently.(g) In relation to cost:13. The Appellant is cognizant of saving costs where possible having regard to the potential costs burden on the party ultimately unsuccessful at trial. These costs will be substantial, as the case has been set down for two to three weeks in May 2016.She amplified this point by detailing the results of inquiries into therespondents' financial position, expressing concern (though not in asmany words) that the appellant may not be able to recover costs in this litigation if successful.[6] The respondents opposed the application on two grounds. First, the appellant had not made out a valid basis for departing from the general rule in Re G J Mannix Ltd, that a company has no right to be represented in court other than by a practising lawyer.2 Secondly, Ms Kelly is not an appropriate person to represent the appellant. In his oral submissions, Mr Marriott focused on the second ground, in particular the conflicts he argued were inherent in the "four hats" Ms Kelly wore: director of the appellant; wife of the appellant's proprietor; general counsel for the appellant;primary witness for the appellant in its application to the High Court for an interim injunction, in particular in affirming on 12 December 2014 the major supporting affidavit.2 Re G J Mannix Ltd [1984] 1 NZLR 309 (CA).[7] In reply, Ms Kelly accepted she had made two affidavits in support of theappellant's application to the High Court for an interim injunction. She agreed withMr Marriott that one (affirmed on 12 March 2015) is not relevant to this appeal. She submitted the other is also not relevant, in that it addressed the threshold question whether the appellant had established a serious question for trial, a point resolved inthe appellant's favour and therefore not under appeal.[8] The legal principles governing this application are well established. We gratefully adopt the following summary in the judgment of Stevens J in this Court inKai Iwi Tavern Ltd v The New Zealand Guardian Trust Company Ltd:3[6] In Re G J Mannix Ltd this Court held that it is "well settled" that "acompany has no right to be represented in the conduct of a case in Court except by a barrister; or by a solicitor in Courts or proceedings where solicitors have the right of audience ".4 Cooke J continued:5There is a cognate rule that, apart from statutory exceptions, a corporation has no right to bring or carry on proceedings in a Court except by a solicitor. This refers to the filing of documents — writs, statements of defence, notices of appeal, etc.[7] This principle has recently been affirmed by this Court in New Zealand Cards Ltd v Ramsay and Commissioner of Inland Revenue v Chesterfields Preschools Ltd.6 The policy reasons behind this principle are set out at [34] of Chesterfields. Briefly stated, the rule ensures that proper consideration is given to the validity of proceedings, decreases the likelihood that appellants will require indulgences in the rules of procedure, and ensures that those who appear before the Court are cognisant of the duties and responsibilities that are owed to the Court.[8] The Court has a discretion to allow non-lawyers to appear on behalf of companies where appropriate. As Cooke J stated:7In general, and without attempting to work out hard-and-fast rules, discretionary audience should be regarded, in my opinion, as a reserve or occasional expedient, for use primarily in emergency situations when counsel is not available or in straightforward matters where the assistance of counsel is not needed by the Court or where it would be unduly technical or burdensome to insist on counsel. Especially in minor matters, cost-saving could also be a relevantfactor. A "one-man" company might be allowed to be represented by its owner if the Judge saw fit in a particular case. But it could not be3 Kai Iwi Tavern Ltd v The New Zealand Guardian Trust Company Ltd [2013] NZCA 199.4 Re G J Mannix, above n 2, t 310.5 At 311.6 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [25]–[34]. Stevens J also delivered the judgment of this Court in that case.7 Re G J Mannix, above n 2, at 314.right, for instance, to issue some sort of tacit continuing or general licence to an unqualified agent to appear in winding up or any other class of proceedings.[9] For two reasons we have decided this application should not be granted. First, we do not consider the appellant has established the sort of exceptionalcircumstances (or brought itself within the "reserve or occasional expedient"discretion) that might justify departing from the Mannix rule. Secondly, we areconcerned that Ms Kelly's close association with the appellant in various capacitiesdoes not sit well with the need for professional objectivity which underlies theMannix rule.[10] The exception is "primarily" to be used in:8emergency situations when counsel is not available or in straightforward matters where the assistance of counsel is not needed by the Court or where it would be unduly technical or burdensome to insist on counsel.This is not an emergency situation. Moreover, counsel is or are available, indeed Ms Kelly advised that she had received legal advice on the appeal. Although theappeal challenges only the Judge's exercise of his discretion (his striking of the so-called "balance of convenience"), we do not think the appeal is the sort of "straightforward matter" contemplated by Cooke J in his judgment in Mannix. Wedo not consider it would be "unduly technical or burdensome" to insist on counselfor this appeal.[11] Following from that last point, Ms Kelly accepted the appellant's primaryreason for making the application was a desire to save legal expense. Importantly, she accepted also that the appellant could afford legal representation on this appeal (which it had in the High Court and will have when this dispute goes to substantive trial). So the legal costs involved are not an obstacle to the appellant pursuing this appeal. Cooke J's reference in Mannix to a "one-man" company appears to havebeen cost-related. The appellant is not a "one-man" company. The material placedbefore us indicates it has a fairly substantial and successful undertaking in Queensland with a number of employees.8 Re G J Mannix, above n 2, at 314.[12] Ms Kelly is right in submitting that Mannix did not involve representation by a legally qualified person.9 In Chesterfields Preschools Mr Hampton, though legally qualified, admitted to being well out of his depth and in need of legal help with the case.10 That may distinguish the facts of that case also, from this one. But the relevance of Mannix and Chesterfields Preschools is for the principles they lay down or confirm.[13] We are also concerned that Ms Kelly is very closely associated with the appellant and, in her capacity as its chief executive officer, affirmed affidavits in support of its application to the High Court for an interim injunction. We accept those affidavits did not address matters in issue on this appeal. Nevertheless, Ms Kelly's very close association with the appellant and the fact that she has been awitness for it sit uncomfortably with the professional objectivity which is one of the rationales for the Mannix rule. The Supreme Court has also expressed the view that it is undesirable for practitioners to act as counsel where they have been personally involved in the matters being litigated, as counsel are at risk of acting as witnesses and losing objectivity.11[14] We have not overlooked Ms Kelly's submission that, on both sides of theTasman, minimising legal costs is a policy imperative. But here, where the appellant can afford legal representation, that imperative must give way to the concerns underlying the Mannix rule. For those reasons, the application is declined.[15] The appellant must pay the respondents' costs as for an application for leaveto appeal on a band A basis, with usual disbursements.Solicitors:Shanahans Family & Property Law, Auckland for AppellantGaze Burt, North Shore for Respondents9 In Re G J Mannix, above n 2, it was the secretary of the company against which the claim hadbeen brought, who was not legally qualified, who sought to appear as the company'srepresentative.10 Commissioner of Inland Revenue v Chesterfields Preschools Ltd, above n 6, at [36].11 Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] NZSC 5, [2010] 2 NZLR 444 at [147].