Case: Julie Anne Barrow Charitable Trust v BrisConnections Management Company Ltd [2009] FCA 412
Outcome: distinguished
a further affidavit filed on 10 July 2009 Mr Barrow sets out the following factors which he contends are sufficient grounds to enable him to be given leave to represent the applicant in the proceeding: (a) He has "advantageous education qualifications" for legal reasoning and advocacy. He sets out degrees he has been awarded in accounting and finance, philosophy and english literature and creative writing. He also says he is currently enrolled in the first year of Juris Doctor of Law at RMIT and is a fully qualified certified public accountant. (b) He has "advantageous experience in the superior Federal Court of Australia". He refers to his participation in proceedings before Gray J (VID 335 of 2008 David Charles Barrow v Blackrock Investment Management Limited ) and Gordon J, Julie Anne Barrow Charitable Trust v BrisConnections Management Company Ltd [2009] FCA 412. (c) The Corporate Trustee is a sole director corporation; (d) Mr Barrow is the sole major donor of The Charitable Trust; (e) The Charitable Trust is impecunious and cannot afford to pay for legal advice or legal representation in court proceedings; (f) Pro bono representation is not appropriate; (g) Refusing leave would be a denial of access to justice; (h) Julie Anne Barrow was his sister who died of an asthma attack on 23 June 2008. Order 4 r 14 of the Federal Court Rules provides: "(1) Subject to subrule (2) and to Order 43 (which relates to disability), any person may proceed in the Court by a solicitor or in person. (2) Except as provided by or under any Act, a corporation may not, without the leave of the Court, commence or carry on any proceeding otherwise than by a solicitor." I am conscious of the fact that I have reached a conclusion different to that of Gordon J in Julie Anne Barrow Charitable Trust v BrisConnections Management Company Ltd [2009] FCA 412 but I consider that there are a number of features of the application before me which distinguish that application from the application made before Gordon J. In the proceeding before Gordon J Mr Barrow applied for leave to appear on behalf of the named applicant but Gordon J refused his application. Her Honour's reasons were that: (a) the issues of fact and law raised in the amended statement of claim were of a kind that were not suited to presentation and examination by a lay representative; (b) Mr Barrow was to be the principal witness in the proceeding; (c) no reason had been proffered by Mr Barrow or the Corporate Trustee why it was that a Charitable Trust could not secure legal representation to prosecute an urgent application for interlocutory relief; (d) even if leave was granted to Mr Barrow to appear on behalf of the Corporate Trustee the applicant faced significant obstacles which needed to be overcome before any substantive application could be heard. The principal distinguishing feature is that in the proceeding before Gordon J the applicant was seeking affirmative relief and was not in the position of being a defendant to a claim or potential claim brought against it. Further, the issues of fact and law raised before me are quite different from the issues of fact and law raised before Gordon J. Although Mr Barrow is the principal witness in this proceeding, as he was in the proceeding before Gordon J, I consider that the issues raised in the applicant's claim to set aside the statutory demands are substantially based on documentation rather than the viva voce evidence of Mr Barrow. There is also evidence before me, which apparently was not before Gordon J, that the applicant and The Charitable Trust are impecunious and cannot afford to pay for legal advice or legal representation. It is also important to note that Gordon J concluded that even if leave was granted to Mr Barrow to appear on behalf of the Corporate Trustee the applicant faced significant obstacles which needed to be overcome before any substantive application could be heard. As I understand the present proceeding the applicant does not face the same significant obstacles. It was accordingly for these reasons that I made the order on 8 September 2009. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg. Associate: Dated: 14 September 2009 Counsel for the Applicant: Mr David Barrow appeared by leave for the applicant Counsel for the Respondent: C Brown Solicitor for the Respondent: Results Legal Solutions Date of Hearing: 8 September 2009 Date of Judgment: 14 September 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1026.html