PARTIES:	Northern Territory of Australia

	v

	Alice Springs Abattoirs Pty Ltd

TITLE OF COURT:	In the Supreme Court of the
	Northern Territory of Australia
	
JURISDICTION:	Interlocutory Application

FILE NO:	21/96

DELIVERED:	15 May 1996

REASONS OF:	Master Coulehan

CATCHWORDS:

	PRACTICE - Northern Territory - Order 1.13 Supreme Court Rules - Corporation taking steps without solicitor - application for dispensation

Cases followed:

	Bay Marine Pty Ltd v Clayton County Properties Pty Ltd (1986) 6 NSWLR 104
	Hubbard Association of Scientologists International v Anderson and Just (1972) VR 577
	Molinar Engineering Pty Ltd v Herald & Weekly Times Ltd (1984) 1 FCR 455

REPRESENTATION:

	Counsel:	
	Plaintiff:	Mr Rowe

	Solicitor:	
	Plaintiff:	Solicitor for the Northern Territory

	Defendant:	Mr Hayward by leave of the Court.

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN					

BETWEEN:

						NORTHERN TERRITORY OF AUSTRALIA
							Plaintiff
						and
						ALICE SPRINGS ABATTOIRS PTY LTD
							Defendant

MASTER COULEHAN: REASONS FOR DECISION
(Delivered 15 May 1996)

The plaintiff’s claim is for the balance of moneys payable under a mortgage of leasehold land in Alice Springs.   An appearance has been filed by G.P. Whitaker, the Managing Director of the defendant, giving an address for service in New South Wales (cf O. 6.05).

Mr Whitaker has also filed a defence and counterclaim and an application by summons to transfer the proceeding.   The plaintiff has applied to have these documents set aside and for other consequential orders.

The basis for the plaintiff’s application is O.1.13 which provides:-
“Except where otherwise provided by or under an Act or this Chapter, a corporation, whether or not a party, shall not take a step in a proceeding except by a solicitor.”

Mr Milson Hayward appeared on the hearing of the plaintiff’s application.   Although not an officer of the defendant he was given leave to be heard.   He has been subsequently appointed secretary of the defendant.
In answer to the plaintiff’s application, the defendant seeks a dispensation pursuant to O.2.04, the grounds being its inability to fund legal representation. 

 Mr Whitaker deposes in his affidavit sworn 11 April 1996 that the only asset of the defendant is land in Alice Springs which is the subject of the plaintiff’s mortgage.
It appears that the defendant is not trading and that it is unable to obtain a loan.  It is also alleged that the plaintiff has refused its consent to a second mortgage.

The equivalent rule in New South Wales was considered in Bay Marine Pty Ltd v Clayton Country Properties Pty Ltd (1986) 6 NSWLR 104.   It was held that there must be exceptional circumstances to justify a dispensation.   There appears to be two predominant considerations, the requirement that persons appearing before the Court have the requisite authority and may be bound by its orders and the Court’s need for competent assistance (see also Hubbard Association of Scientologists International v Anderson and Just (1972) VR 577 and Molinar Engineering Pty Ltd v Herald & Weekly Times Ltd (1984) 1 FCR 455).

The question of Mr Hayward’s authority to bind the defendant may be capable of resolution.   However, there are other matters which require consideration.

I am not satisfied as to the inability of the defendant to pay for legal representation.   The land owned by the defendant is valued at $1,000,000; and, while there is evidence of the defendant’s inability to obtain a loan, there is no evidence as to the means of the shareholders who may benefit from the proceeding.   In particular there is no evidence as to the capacity of Wales Australian Resources Pty Ltd, the holding company, to finance this litigation.

Further, there is evidence that the defendant is being legally represented in another proceeding before this Court.   There has been no explanation as to how this proceeding is being funded.

Another consideration is that the defendant’s counterclaim is for a substantial sum and appears to raise difficult issues.   This claim, and the application to transfer the proceeding, would appear to be of sufficient substance to necessitate properly qualified assistance to the Court.

I am not satisfied that there are exceptional circumstances which warrant a dispensation of the requirements of O.1.13.   It is ordered as follows:-
	1. The defendant’s summons filed on 18 March 1996 be set aside.
	2. The defendant’s defence and counterclaim filed 20 March 1996 be set 	 	     aside.
	3. The defendant take no further steps in the proceeding except by a solicitor.