THE COMMISSIONER OF INLAND REVENUE V CHESTERFIELDS PRESCHOOLS LIMITED AND ORS CA CA607/2008

THE COMMISSIONER OF INLAND REVENUE V CHESTERFIELDS PRESCHOOLS LIMITED AND ORS CA CA607/2008 31 July 2009IN THE COURT OF APPEAL OF NEW ZEALAND CA607/2008 CA800/2008 CA271/2009 [2009] NZCA 334BETWEEN THE COMMISSIONER OF INLAND REVENUE Appellant AND CHESTERFIELDS PRESCHOOLS LIMITED First Respondent AND D J HAMPTON Second Respondent AND CHESTERFIELDS PARTNERSHIP Third Respondent AND CHESTERFIELD PRESCHOOLS PARTNERSHIP Fourth Respondent AND ANOLBE ENTERPRISES LIMITED Fifth Respondent Court: Hammond, O'Regan and Ellen France JJ Counsel: E Aspey for Appellant D J Hampton in person Judgment: 31 July 2009 at 10 am (On the papers)JUDGMENT OF THE COURT A Mr Hampton's application to represent the first to fifth respondents is allowed.B No order for costs. REASONS OF THE COURT(Given by Hammond J)Introduction[1] The respondents are engaged in a long-running taxation dispute with the Commissioner of Inland Revenue. Although the proceedings have become something of a procedural quagmire, they have all now been consolidated. The Commissioner, of course through counsel, is endeavouring to put a very large Case on Appeal together. That is itself an extensive exercise. Certain stays have been granted, essentially as holding orders. [2] Of present importance, Mr Andrews, the respondents' solicitor, felt obliged to make application to cease to be the solicitor on the record. This was acceded to by a Minute of the Court delivered by Hammond J on 15 June 2009. Thereafter, Mr Hampton has endeavoured to represent all the respondents himself. He was warned that he might not be able to do this, and that if he wished to do so he should make what is colloquially referred to as a Mannix application: see Re G J Mannix Ltd [1984] 1 NZLR 309 (CA). On 9 July 2009, Mr Hampton filed an application for an order in relation to representation of the respondents. Mr Aspey for the Commissioner filed a Notice of Opposition to the application on 13 July 2009. [3] This proceeding is listed in the Miscellaneous Motions list for 18 August 2009 on the question of the continuance of the stays. It is highly desirable that there be clarification as to whether Mr Hampton can appear, and if so on what basis, before that fixture. [4] Neither party has raised any objection to a suggestion from the Court that theMannix application should be determined on the papers by the panel which has mostrecently been dealing with matters in this Court (Hammond, O'Regan and Ellen France JJ).The application[5] Mr Hampton's application is for an order "declaring that he represents the first to fifth respondents in the proceedings". Further, he seeks the direction that the address for service for all the respondents be Edgeware Law Centre in Christchurch. [6] The application rests on the grounds that it is not now practically possible for the several respondents to raise finance to fund legal representation, and that Mr Hampton is an officer of the first and fifth respondents and has continued in that role from 1993. It is suggested that all of the respondents are associated "and in a sense the alter-ego" of Mr Hampton. There is commonality of interests between the respondents. In earlier judicial review proceedings the respondents were represented in person by Mr Hampton and Therese Anne Sisson. Mr Hampton himself has legal qualifications including an LLM from Canterbury University and he has been accepted into a doctoral programme in law at Glasgow University, Scotland. He was admitted to the bar in 1991 and held a practising certificate for two years. He is not now on the roll.The grounds of opposition[7] Mr Aspey rightly acknowledges that there can be no objection to Mr Hampton presenting his own case as second respondent, and as a partner in the third and fourth respondents (although it is said that he could not represent Ms Sisson, his partner in the partnerships named as third and fourth respondents). But objection is taken to Mr Hampton appearing for the first and fifth respondents, both of which are companies. [8] Much of the Commissioner's concern is that Mr Hampton's personal involvement has grossly overcomplicated the already complicated nature of the proceeding. It is said that Mr Hampton's legal work, notwithstanding hisqualifications, exemplifies the rationale for the rule in Mannix that non-professional representation should be rare. The unfortunate state of his legal work is said to include: (a) his filing pleadings or affidavits out of time, and without leave; (b) his filing memoranda of submissions that have included applications, not made formally; (c) his filing "affidavits" that include and/or consist largely of submissions; (d) his filing affidavits in opposition to notices of application, without any notice of opposition; (e) as a result, his apparent avoidance of payment of Court filing fees; (f) his making submissions that are legally flawed, illogical, or otherwise misconceived or difficult to understand; (g) his propensity for giving evidence from the bar. [9] Concern is also raised about a suggested conviction for fraud in October 1993, and misrepresentations or misconceptions in Mr Hampton's 9 July 2009 affidavit of what Fogarty J found in the High Court. [10] Underlying the Commissioner's notice of opposition is the pervasive concern that the respondents in a complicated tax case of public importance should be represented by properly instructed and qualified counsel rather than Mr Hampton, who has created procedural havoc. [11] Mr Andrews' withdrawal as solicitor on the record was greeted with dismay by the Commissioner who had made a sensible proposal to fund Mr Andrews' continued involvement in the case in an endeavour to overcome these problems, but that offer was not taken up.The law[12] The Commissioner relies on the long-established authority of Re G J Mannix Ltd. There, Cooke J (as he then was) held "that a company 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 – as they usually have in Courts which are not superior Courts" (at 310). Cooke J noted that the courts have a discretion to allow other persons to represent companies in some situations (at 314): 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 relevant factor. 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 be 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.[13] In YPG IP Limited v Yellowbook.com.au Pty Ltd HC AK CIV 2007-404- 002839 29 June 2007, Harrison J opined that the rationale of the Mannix rule is "to ensure that the Court will be served by its officers who observe the rules of their profession, are subject to a disciplinary code, and are familiar with the methods and scope of advocacy followed in presenting arguments in Court" (at [6]). [14] There is no doubt that the Mannix rule is still in operation. See for instanceCentral Equipment Company Limited v Commissioner of Inland Revenue (2008) 23 NZTC 21,861 at [11]-[13] (CA); Black v Taylor [1993] 3 NZLR 403 (CA); andHonda New Zealand Limited v New Zealand Boilermakers [1991] 1 NZLR 392 (CA). [15] Mr Hampton invited us to review whether the Mannix rule should be maintained. For reasons which follow we do not find it necessary to take that course at this time.Disposition[16] Of the factors in this case which strike us as being of great importance, Mr Hampton has the right to represent himself as second respondent, and in respect of his partnership interests in the third and fourth respondents. In short, he is already "in court" as it were, and will continue to be so. Further, there is a linkage between him and the companies and he has some legal training. [17] As against that, his "legal work" to date is well below what this Court would normally expect of somebody with a legal qualification. He has, for example, filed affidavits without applications. The Commissioner, mindful of all the difficulties which will be created in the prosecution of the appeal, made an eminently sensible proposal which would have enabled the companies to be represented but which was allowed to lapse by Mr Hampton (see above at [11]). This all suggests of course that Mr Hampton simply wants to "run the show" himself. [18] In the end, although not without some hesitation, we allow Mr Hampton's application. Our essential reasons are that the Commissioner is the appellant, and assembling the Case on Appeal and getting the appeal on for hearing fortunately lies in the hands of experienced Crown counsel. Secondly, Mr Hampton is going to have to be involved for (at least) two of the respondents. Thirdly, there seems now to be absolutely no prospect of there being representation for the other respondents. [19] We therefore allow Mr Hampton's application, but we make this observation. Mr Hampton cannot expect indulgences. He has to comply strictly with the rules of court, as do all other litigants in this Court. [20] There will be no order for costs.Solicitors: Crown Law Office, Wellington