Parties must be represented by a barrister or solicitor of the High Court; open justice principles prevail

Summary 

The High Court found that a company has to be represented by a barrister and solicitor of the High Court. The Court also confirmed that there is no specific provision in the High Court Rules relating to name suppression and that the principle of open justice works in New Zealand.

Impact 

This decision upholds the Mannix principles regarding companies being represented in the High Court by a barrister or solicitor. The decision also upholds the threshold required for name suppression in New Zealand; that the circumstances displacing the principle of open justice must be exceptional or extraordinary in nature.

Facts

The applicants, Sovereign Books Ltd and Creative Productions Ltd, brought proceedings called "Leave to make application of a statutory review of the Taxation Review Authority and to join Crown Law as a third party and to make a statement of claim again IRD Crown Law in High Court", and also leave to appeal the decisions made by the Taxation Review Authority.

The parties essentially sought to challenge Judge P F Barber's decision in striking out the applicants challenge before the Tax Review Authority ("TRA").

In these proceedings, the applicants sought leave for their tax agent, Mr Young, to represent them in the substantive matters and for name suppression of the applicants and tax agent.

The Commissioner of Inland Revenue ("the Commissioner") opposed both applications and sought costs.

The Court considered that in order to effectively seek a challenge to the strike out and appeal applications it was necessary to determine the following preliminary issues:

1. As Mr Young is the director of the two applicants (Sovereign Books Ltd and Creative Productions Ltd), and not a barrister or solicitor of the High Court of New Zealand, whether he should be granted leave to represent both applicants in the High Court. (Issue 1)
2. Whether the companies and Mr Young should be granted name suppression. (Issue 2)

Mr Young's application for leave to appear

Mr Young submitted that he should be granted leave to appear in accordance with s 57(2) of the District Court Acts 1947, providing that a corporation may appear by an officer, attorney or agent of the corporation in court. There was no equivalent provision in the Judicature Act 1908 or High Court Rules.

The Court stated, per Cooke J's judgment in Re G J Mannix Ltd [1984] 1 NZLR 309 ("Re G J Mannix Ltd"), that a company has to be represented by a barrister or solicitor of the High Court. Exceptions to the rule were discussed, however these were only in situations of emergency when counsel is not available or where it would be ‘unduly burdensome to insist on counsel' (Re G J Mannix Ltd [1984] 1 NZLR 309 (CA) at 314).

Mr Young stated that Re G J Mannix does not apply in the modern world, in particular to situations involving his companies where they "just want to have their day in court." Mr Young further stated that the Commissioner's reliance on Re G J Mannix was a strategy by the Commissioner to get rid of him as the party representing the applicants.

Asher J contended that the Court is bound by Re G J Mannix and the cases that have followed it. Asher J further stated that a company is not a natural person and there would be concerns if a director acts for a company in court and gives the ‘directors perspective' and not that of the company.

Asher J noted that an individual officer representing a company in court does not hold the objectivity required to represent the company's best interests. He further noted the many meritless applications and failures of the applicants to comply with court orders furthering the need for counsel to appear on its behalf.

Asher J stated that he could not find any exceptional circumstances warranting departure from the rule that non-lawyer shareholders cannot appear for the company, and further that the proceeding was not urgent. Asher J noted, in referring to the TRA's strike out decision, that the ‘procedural tangles' that occurred in the TRA were the fault of the applicants and Mr Young.

Suppression

The second issue examined by the Court related to the applicants application seeking name suppression.

Mr Young contended that it would be unfair for there to be publicity. His primary consideration appeared to be unfairness to himself. He claimed that he was an accountant and should not be subjected to the burden of publicity in challenging proceedings that he claimed had proceeded in a grossly unfair manner.

Asher J stated that there is no specific provision in the High Court Rules relating to suppression of name or anonymity of parties in proceedings. He further noted that the principle of open justice works for publication and that the public of New Zealand are entitled to know what matters are proceeding in their courts.

The Court noted, in referring to the decisions of Clark v Attorney-General (No 1) ([2005] NZAR 481 (CA)("Clark"), and Brown v Attorney-General ([2006] NZAR 450 (CA)), that exceptional or extraordinary circumstances are required in order to displace the principle of open justice before suppression orders could be granted. It was stated in Clark that the basis for the exceptional circumstances test was that the principles of open justice and the related freedom of expression creates a presumption of disclosure in all aspects of court proceedings and:

"the right to freedom of expression is better served by placing as few restrictions as possible on it …". (Clark v Attorney General (No 1) [2005] NZAR 481 (CA) at [43])

The Court stated that Mr Young did not point to any particular factors alluding to the adverse effects of publicity. Asher J also referred to the Court of Appeal decision in McIntosh v Fisk whereby the principles of ‘open justice' was emphasised, and that a party seeking name suppression must show the interests of justice displace the presumption favouring publication (McIntosh v Fisk [2015] NZCA 247, [2015] NZAR 1189 at [1]).

Decision

The Court declined Mr Young's application for leave to appear for the applicants.

The Court declined the application for name suppression of the parties involved.

The Commissioner was awarded costs on a 2B basis.