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WA solicitor fails to overturn historic legal representation rule
A West Australian solicitor who sought to appear for his own company failed to overturn a decades-old requirement that a corporation has legal representation.
Naomi Neilson
Kingsfield Holding’s sole employee and in-house counsel, Jeffrey Lee, failed to convince the Australian Supreme Court that a requirement for bodies corporate to be represented by a solicitor on the record was no longer binding and could not be applied in his case.
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The requirement is enforced under the Rules of the Supreme Court 1971 WA Act and ensures a person appearing for a company has the appropriate authority and understands the need to avoid conflicts between the interests of the company and its representatives.
Justice Michael Lundberg found that by even allowing the proceedings to continue with Mr Lee, it would, in effect, mean they were being conducted by Kingsfield Holdings and not by a solicitor.
He found this was in contravention of the requirement.
The court also considered Mr Lee’s practising certificate, which restricts him from acting only as an employee of a law practice.
“I cannot accept that a legal practitioner who is employed by a body corporate as its sole employee and in-house counsel, with such a close association, and who is precluded from practising on his own account, is able to carry on legal proceedings in this court, on the record, for that body corporate,” Justice Lundberg found.
Mr Lee’s ultimate contention was he was entitled to represent his company due to changes to the Legal Profession Law Application Act 2022 (WA) and the introduction of the Legal Profession Uniform Law (WA), which sought to “harmonise” the national legal profession.
The defendant, Lawfirst, argued the application was seeking to allow Kingsfield Holdings to act for itself and submitted “that the possibility of a conflict looms large in the current litigation”.
Justice Lundberg agreed that the person on the record would not be Mr Lee, “but rather is Kingsfield Holdings”.
The application to change representation was struck out.
The current proceedings concern legal action bought by Kingsfield Holdings against Lawfirst, a law firm it had retained to act for them in defamation claims made against Rottnest retailer Ivan Rutherford.
The defamation matter concerned Mr Rutherford’s conversation with a property agent that a café had closed following a health inspection.
A substantial portion of Kingsfield Holdings’ statement of claim was struck out in May 2022 and was the subject of a dismissed appeal, except for one specific aspect that is due to return to the Court of Appeal later this year.
