Director to represent companies in appeal

Summary

The Court of Appeal has allowed the director of two companies to represent them in Court, finding the case was an exception to the established rule in the Mannix case.

Impact of decision

The decision is a conventional use of the exception to the GJ Mannix rule. The fact the director was already before the Court in his personal capacity was a key consideration.

It was made clear that the individual could expect no "indulgences" when presenting the case for the taxpayers and only strict compliance with the court rules was acceptable.

The parties have been involved in a long-running judicial review which the Commissioner is appealing. Previous decisions are reported at (2007) 23 NZTC 21,125 and (2009) 24 NZTC 23,148. The taxpayers are one individual (Mr Hampton) together with two partnerships involving Mr Hampton and two companies of which Mr Hampton is the director.

The taxpayers had been represented at the High Court by legal counsel but that counsel had withdrawn for the conduct of the appeal. Mr Hampton, as director of two companies that were parties to the matter, sought to appear for the companies. Mr Hampton is legally trained but is not a practicing lawyer. He was able to appear in his own right and as a partner in two partnerships involved in the matter (he could not purport to represent the other partner).

The Commissioner opposed Mr Hampton’s application on the basis that the rule in Re GJ Mannix Ltd [1984] 1 NZLR 309 applies. That rule requires any company in proceedings to be represented by a legal counsel and does not allow a director to appear for the company except in exceptional circumstances.

Decision

The Court accepted the continuing application of the rule established in the GJ Mannix case (par [12]-[14]), but considered this was a case where an exception to the rule should be made (par [18]).

In allowing the director’s application the Court said:

• [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.

Noting that his "legal work" (Courts own quote marks) is "well below what this Court would normally expect of somebody with a legal qualification" (at par [17]), the Court concluded with a warning:

• [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.