Tydeman v State of New South Wales

1. [1]

   By an amended summons filed on 4 November 2024 the plaintiffs seek various declarations all of which are directed, at different levels of generality, ultimately to the contention that rules 7.1(2) and (3) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) are invalid due to the operation of clause 5 of the Commonwealth of Australia Constitution Act 1900 (UK) (the Constitution Act).

2. [2]

   The first plaintiff is Mr James Tydeman (Mr Tydeman) described in the amended summons as acting in his legal capacity as the managing director of the Alexander Superannuation Fund (Superannuation Fund) and the second plaintiff is Asgard Group Pty Ltd (Asgard) in its capacity as the trustee of the Superannuation Fund. Mr Tydeman appeared in person on behalf of the plaintiffs at the hearing.

3. [3]

   The defendant is the State of New South Wales. Mr MG Sexton SC, the Solicitor-General for NSW, appeared for the defendant with Ms CL Raad of counsel.

4. [4]

   The declarations sought by the amended summons are:

   1. (1)

      An order declaring s 5 of the Constitution Act has relevantly imposed legal duties to perform on the NSW Supreme Court and its judges being to give effect to federal law, including section 5 of the Constitution Act itself, which duties must be performed any time when occasion requires performance and correlative to those duties are implied legal rights conferred to (sic) the second plaintiff and the exercise of those rights directly by the second plaintiff to require performance of the correlative duties imposed on that court and its judges and which must not be undermined or modified by any lower-tier law in the hierarchy of federal laws, including Commonwealth law made under the Constitution of the Commonwealth, and any State law must not be considered if it undermines or modifies these constitutional rights/duties from being exercised/performed (Declaration 1).

   2. (2)

      An order declaring the Supreme Court Act 1970 (NSW) (Supreme Court Act) and the Civil Procedure Act 2005 (NSW) (Civil Procedure Act) are repugnant to or inconsistent with the Constitution Act 1902 (NSW) and those State laws shall, but only to the extent of the repugnancy or inconsistency, have no operation (Declaration 2).

   3. (3)

      In accordance with s 109 of the Constitution of the Commonwealth, an order declaring s 6 of the Supreme Court Act is inconsistent with s 78 of the Judiciary Act 1903 (Cth) (Judiciary Act) and that State law shall, but only to the extent of its inconsistency, have no operation (Declaration 3).

   4. (4)

      In accordance with s 109 of the Constitution of the Commonwealth, an order declaring r 7.1(2)(a) of the UCPR is inconsistent with s 78 of the Judiciary Act and that State law shall, but only to the extent of its inconsistency, have no operation (Declaration 4).

5. [5]

   The plaintiffs gave notice of a constitutional matter under s 78B of the Judiciary Act. None of the Attorneys-General sought to intervene.

Relevant statutory provisions

1. [6]

   Section 5 of the Constitution Act provides:

2. [7]

   Section 9 of the Constitution Act enacts the Constitution itself, including s 109 which provides:

3. [8]

   Section 78 of the Judiciary Act provides:

4. [9]

   This needs to be read with s 79(1) and (1A) of the Judiciary Act which provide:

5. [10]

   Section 124 of the Corporations Act 2001 (Cth) (Corporations Act) provides:

6. [11]

   Section 5 of the Constitution Act 1902 (NSW) provides:

7. [12]

   Section 6 of the Supreme Court Act provides:

8. [13]

   Rule 7.1 of the UCPR, which is delegated legislation made under s 9 of the Civil Procedure Act, provides:

9. [14]

   UCPR r 7.1(2) and (3) operate subject to s 14 of the Civil Procedure Act which provides:

Background

1. [15]

   Mr Tydeman, and his mother, Ms Catherine Alexis Tydeman, are the only shareholders and directors of Asgard, a company registered on 31 October 2016.

2. [16]

   Since 9 June 2022, Asgard has been the trustee of the Superannuation Fund, a self-managed superannuation fund established under the Superannuation Industry (Supervision) Act 1993 (Cth) in about May 2002: Tydeman v Asgard Group Pty Ltd, in the matter of Asgard Group Pty Ltd [2023] FCA 486 at [2], [8]. Tanamerah Estates Pty Ltd (Tanamerah) was sole trustee of the Superannuation Fund from its creation to 1 September 2016. Mr Tydeman and Catherine Tydeman were joint trustees of the Superannuation Fund between 1 September 2016 and 9 June 2022, at which time Asgard was appointed trustee: Tydeman v Tibra Capital Pty Ltd (No 2) [2018] NSWSC 884 at [22]; Tydeman v Asgard Group Pty Ltd, in the matter of Asgard Group Pty Ltd [2023] FCA 486 at [25]-[27].

3. [17]

   Commencing in January 2008, Tanamerah purchased shares in Tibra Capital Pty Ltd (Tibra). By April 2009, after a share split, it owned 231,830 shares as trustee for the Superannuation Fund: Tydeman v Asgard Group Pty Ltd, in the matter of Asgard Group Pty Ltd [2023] FCA 486 at [11]. On 9 June 2011, Tibra bought back the shares pursuant to a shareholders’ agreement. The buy-back gave rise to a dispute about whether Tibra paid the market value of the shares: Tanamerah Estates Pty Ltd v Tibra Capital Pty Ltd [2013] NSWSC 36 at [21]; In the matter of Tanamerah Estates Pty Ltd [2016] NSWSC 1644 at [3].

4. [18]

   On 29 August 2012, Tanamerah commenced proceedings against Tibra in relation to the disputed share buy-back (SC proceedings no. 2012/269942). Mr Tydeman sought to appear on behalf of Tanamerah as of right or by dispensation with rr 7.1(2) and (3) of the UCPR. That application was dismissed by Hallen J on 6 February 2013 in Tanamerah Estates. His Honour also stayed the principal proceedings until a solicitor had been appointed to act on behalf of Tanamerah.

5. [19]

   On 22 May 2015, Tibra issued a creditor’s statutory demand to Tanamerah in respect of a debt arising from costs orders made in the proceedings before Hallen J and subsequent review and appeal proceedings: In the matter of Tanamerah Estates Pty Ltd [2016] NSWSC 1644 at [5]. By summons filed on 15 June 2015 (and amended on 23 September 2015), Tanamerah applied to set aside the statutory demand (SC proceedings no. 2015/176355). The amended summons was signed by Mr Tydeman, who sought to carry on the proceedings as an authorised director acting on behalf of Tanamerah: Tanamerah Estates Pty Ltd v Tibra Capital Pty Ltd [2015] NSWSC 1519 at [1]-[2].

6. [20]

   Tibra filed a notice of motion seeking a declaration that Tanamerah did not have standing to bring the proceedings on the basis of non-compliance with r 7.1(3) of the UCPR. Mr Tydeman submitted that he was entitled to represent Tanamerah as of right: Tanamerah Estates Pty Ltd v Tibra Capital Pty Ltd [2015] NSWSC 1519 at [16]. Black J rejected that submission and stayed the proceedings for 28 days in order for Tanamerah to obtain legal representation: Tanamerah Estates Pty Ltd v Tibra Capital Pty Ltd [2015] NSWSC 1519. The 28-day period was subsequently extended to allow Tanamerah a final opportunity to appoint a solicitor: Tanamerah Estates Pty Ltd v Tibra Capital Pty Ltd [2015] NSWSC 1708. On 18 November 2015, Black J made orders in chambers dismissing the proceedings on the basis that Tanamerah had not filed a notice of appearance by a legally qualified representative. The orders were stayed pending any appeal brought by Tanamerah: In the matter of Tanamerah Estates Pty Ltd [2016] NSWSC 1644 at [9]-[10].

7. [21]

   Following a series of unsuccessful appeals and applications for leave to appeal, the orders made by Black J took effect: In the matter of Tanamerah Estates Pty Ltd [2016] NSWSC 1644 at [7], [11]; Tanamerah Estates Pty Ltd v Tibra Capital Pty Ltd [2015] NSWCA 383; Tibra Capital Pty Ltd (S84/2016) [2016] HCASL 147; Tanamerah Estates Pty Ltd v Tibra Capital Pty Ltd [2016] NSWCA 23. Tanamerah was therefore taken to have failed to comply with the statutory demand.

8. [22]

   On 11 March 2016, Tibra filed an application for an order winding up Tanamerah (SC proceedings no. 2016/78202). On 22 November 2016, Black J made an order winding up Tanamerah in insolvency: In the matter of Tanamerah Estates Pty Ltd [2016] NSWSC 1644.

9. [23]

   By summons filed on 29 May 2023, Asgard commenced proceedings in this Court seeking a vesting order under s 71 of the Trustee Act 1925 (NSW) in favour of Asgard in respect of the 231,830 ordinary shares in Tibra said to be held by Tanamerah as trustee of the Superannuation Fund (SC proceedings no. 2023/171175) (Vesting Proceeding). On 1 February 2024, Asgard sought leave to file a proposed amended summons in the Vesting Proceeding adding Tibra as a defendant. The proposed amended summons also sought the additional relief of a mandatory injunction under s 1324 of the Corporations Act, compelling Tibra to amend its register of members to show that Tanamerah remains a member of it and an order vesting the Tibra shares in Asgard as trustee for the Superannuation Fund.

10. [24]

    Asgard is not represented by a solicitor in the Vesting Proceeding.

11. [25]

    On 28 November 2023, Mr Tydeman filed a notice of motion in the Vesting Proceeding seeking declarations that s 78 of the Judiciary Act is inconsistent with the Supreme Court Act, the Civil Procedure Act and unparticularised rules of court made pursuant to those statutes. On 1 February 2024, Asgard filed a notice of motion seeking orders in substantially the same terms. On 16 February 2024, Mr Tydeman filed a third notice of motion seeking orders in substantially the same terms.

12. [26]

    The plaintiffs commenced these proceedings on 19 December 2023. The plaintiffs assert in their written submissions that they seek relief in these proceedings so that the Vesting Proceeding can progress despite Asgard not having legal representation. The Vesting Proceeding was listed for directions on the date that these proceedings were listed for hearing, 22 November 2024.

13. [27]

    On 9 April 2024, Mr Tydeman filed an application for removal of these proceedings to the High Court pursuant to s 40 of the Judiciary Act (HC proceedings no. S49/2024). On 8 August 2024, the High Court (Gleeson and Beech-Jones JJ) refused the application on the stated basis that the application had insufficient prospects of success to warrant removal to that Court: Tydeman v State of New South Wales & Anor [2024] HCASL 180.

14. [28]

    At the commencement of the hearing, I drew to the attention of Mr Tydeman the fact that the difficulty created by the requirement of UCPR rr 7.1(2) and (3) for his conduct of the Vesting Proceeding without Asgard having legal representation would appear not to arise if he and his mother replaced Asgard as trustee of the Superannuation Fund (restoring the position which had existed prior to Asgard’s appointment as trustee on 9 June 2022). The trustees of a self-managed superannuation fund may be individuals, rather than a body corporate, if they are members of the fund: Superannuation Industry (Supervision) Act 1993 (Cth), s 17A(1). That is a matter relevant to the future conduct of the Vesting Proceeding given the outcome of this proceeding as explained below.

Submissions

1. [29]

   The starting point of the plaintiffs’ submissions is that s 124(1) of the Corporations Act confers on a company registered under the Corporations Act the legal capacity and powers of an individual (a term defined in s 2B of the Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act) to mean a natural person).

2. [30]

   It was submitted that while a company is a creature of statute, it metaphysically appears to do acts and things personally in circumstances where a human being is directly exercising the company’s powers of a natural person. That human being merges with the company’s legal personality so that actual things caused to be done by that human being must be treated, by operation of law, as if the company had done those things itself.

3. [31]

   The plaintiffs draw attention to two replaceable rules contained in the Corporations Act: under s 198A, the directors may directly exercise all of the powers of a company and under s 201J the directors may appoint any director as the managing director and confer on that person any of the powers of the company that the directors can exercise (s 198C). In the first case when the directors so act, they do so as the company and not as agents of the company. In the second case when the managing director does an act or thing for the company in exercise of any of the powers so conferred, the managing director must by operation of the Corporations Act be treated as if the company had personally done that act for itself. Reference was made to s 9 of Corporations Act which provides that ‘doing an act or thing includes causing or authorising the act or thing to be done’.

4. [32]

   The plaintiffs submitted that it is necessary to distinguish between a human actor who directly does an act or thing as the company from one who does an act or thing directly, through being an agent acting for and on behalf of the company. Reference was made to Hamilton v Whitehead (1988) 166 CLR 121; [1988] HCA 65 and Kingsfield Holdings Pty Ltd v Lawfirst Pty Ltd (No 2) [2023] WASC 297 at [9].

5. [33]

   In Hamilton, Mr Whitehead was the managing director of a company and was charged with being knowingly concerned in the commission of an offence by the company which was to offer or issue to the public a prescribed interest, in breach of s 169 and s 174 of the Companies (Western Australia) Code. Section 169 prohibited a person from relevantly offering or issuing to the public for subscription or purchase any prescribed interest, and s 174 prohibited a person from contravening or failing to comply with s 169. The word ‘person’ was defined to include a company (the Interpretation Code, s 9). Mason CJ, Wilson and Toohey JJ said at 127:

6. [34]

   Kingsfield Holdings concerned Order 4 r 3(2) of the Rules of the Supreme Court 1971 (WA) which provides that a body corporate may not begin or carry on any proceedings in the Supreme Court otherwise than by a solicitor. The question was whether the plaintiff company was entitled under Order 4 r 3(2) to be represented in the proceedings through an employee of the company, Mr Lee, who was a lawyer authorised to engage in legal practice as a corporate legal practitioner. Lundberg J concluded that it was not, observing at [9] that ‘to allow these proceedings to be conducted by the first plaintiff through Mr Lee would in effect mean the proceedings are being conducted ‘by’ Kingsfield Holdings, and not ‘by’ a solicitor’.

7. [35]

   The plaintiffs submitted that the legal capacity and powers of a natural person which are conferred on a company by s 124(1) include the doing of all types of acts and things which a natural person can do, including to speak. Clause 5 of the Constitution Act requires any court or judge to apply s 124(1). However, s 124(3) operates to pick up and apply UCPR r 7.1, which purports to limit or deny a company’s legal capacity and powers of a natural person under s 124(1).

8. [36]

   It was submitted that s 124(3) cannot validly operate to the extent that it affects, directly or indirectly, cl 5 of the Constitution Act. This is because there is a hierarchy of legislation operating in Australia, under which the Constitution Act and the Constitution itself are at the apex. Consequently, no Commonwealth law or state law may validly be made so as to limit or deny the ‘binding’ imposed by or under cl 5 of the Constitution Act which can be described as a binding ‘duty to perform’ imposed on courts and judges.

9. [37]

   As a consequence of UCPR r 7.1 as it has been interpreted by the courts, a company within the meaning of the Corporations Act cannot commence proceedings ‘in person’: Tanamerah Estates at [90]. However, it was submitted that this approach fails to recognise that s 124(1) merges a company’s legal personality with the relevant human being who is directly exercising that companies powers as a natural person under s 124(1) and s 198A(2) of the Corporations Act. The relevant human being is the physical embodiment of the company, and the courts and judges of NSW must recognise that legal fact by operation of cl 5 of the Constitution Act in respect of the ‘binding’ application of the Corporations Act.

10. [38]

    The plaintiffs’ central argument, as summarised at paragraph 45 of their written submissions, was that by operation of cl 5 of the Constitution Act and in accordance with s 15A of the Acts Interpretation Act, s 124(3) of the Corporations Act must be read down to the extent that - in relation to cl 5 of the Constitution Act - it is invalid for s 124(3) in the Corporations Act to pick up and apply UCPR r 7.1 to limit or deny a company’s legal capacity and powers of a ‘natural person’ under s 124(1) of the Corporations Act by reason of:

    1. (1)

       neither Commonwealth law nor State law may validly be made to limit or deny the mandatory ‘binding’ duty to perform which has been imposed on the relevant courts/judges by or under cl 5 of the Constitution Act;

    2. (2)

       the Supreme Court and its judges have been captured within the scope of that ‘binding’ duty to perform; and

    3. (3)

       UCPR r 7.1 invalidly purports to limit or deny that ‘binding’ duty to perform which is caused indirectly by that statutory rule purporting to limit or deny the company’s legal capacity and powers of a ‘natural person’.

11. [39]

    The defendant submitted that Declaration 1 should not be made because:

    1. (1)

       At common law, it is well established that a company, as an artificial legal person, is incapable of appearing personally in court: see eg, Re Education Pty Ltd and the Companies Act [1963] NSWR 1340 at 1341; Jonathan Alexander Ltd v Proctor [1996] 2 All ER 334 at 340-341. It must instead appear before a court by or through an agent. A member or officer of a company has no common law entitlement to appear before a court on behalf of the company (Bay Marine Pty Ltd v Clayton Country Properties Pty Ltd (No 2) (1986) 8 NSWLR 104 at 105-6) and the class of agents through which a company may appear may be limited by statute or by the practice of the court: Hubbard Association of Scientologists International v Anderson [1972] VR 340 at 341.

    2. (2)

       Section 124 of the Corporations Act does not alter the common law position. There is a distinction between legal powers and capacities and physical powers: Australasian Centre for Corporate Responsibility v Commonwealth Bank of Australia (2016) 248 FCR 280; [2016] FCAFC 80 at [50]. Section 124(1) cannot overcome the reality that a company is an artificial person with no physical attributes, and thus it cannot confer on a company the physical power to appear personally in proceedings: Bay Marine at 111; Simto Resources Ltd v Normandy Capital Ltd (1993) 10 ACSR 776 at 781-2.

    3. (3)

       It follows that, to the extent that UCPR rr 7.1(2)-(3) restrict the circumstances in which a director may appear on behalf of a company, those rules of court do not undermine any right conferred by s 124(1) or any duty imposed on Supreme Court judges under covering cl 5 of the Constitution to act in accordance with the Constitution and Commonwealth laws.

    4. (4)

       Even if s 124(1) conferred a prima facie right on a company to appear personally in court through its director, s 124(1) is qualified by s 124(3), which expressly provides that, ‘for the avoidance of doubt’, s 124 is not intended to authorise a company to do an act that is prohibited by a law of a State or Territory or give a company a right that a law of a State or Territory denies to the company.

    5. (5)

       Section 124(3) is a valid law. It is within the capacity of the Commonwealth Parliament to confer powers on companies and expressly limit those powers by reference to State laws. Covering cl 5 of the Constitution does not make absolute all rights and duties conferred by Commonwealth laws, notwithstanding an express statement of intention that the Commonwealth law is intended to be qualified by certain State laws. When there is a clear statement of intention of the kind in s 124(3), the operation of the State laws is effectively preserved, such that the State law cannot undermine the Commonwealth law. Nor are any constitutional rights or duties undermined. Accordingly, neither s 124(3) nor UCPR r 7.1 purports to require Supreme Court judges to contravene any ‘binding’ duty imposed under covering cl 5 of the Constitution to give effect to the Constitution and Commonwealth laws.

    6. (6)

       Neither s 124(3) of the Corporations Act, nor UCPR r 7.1(2)-(3), causes any ‘substantial obstruction’ to the exercise of the judicial power of the Commonwealth as referred to in s 71 of the Constitution. UCPR rr 7.1(2)-(3) do not deny companies the right to bring proceedings but merely regulate the manner in which such proceedings may be commenced and carried on.

    7. (7)

       In any event, UCPR rr 7.1(2)-(3) do not impose an absolute prohibition on directors carrying on proceedings on behalf of companies because under s 14 of the Civil Procedure Act, the Court has a discretionary power to dispense with UCPR r 7.1 in an appropriate case.

12. [40]

    The defendant submitted that Declaration 2 should not be made because, although s 5 of the Constitution Act 1902 (NSW) expressly makes the legislative power of the NSW Parliament ‘subject to the provisions of the Commonwealth of Australia Constitution Act’, for the reasons stated in the preceding paragraph, UCPR r 7.1 is not inconsistent with any duty imposed by covering cl 5 of the Constitution.

13. [41]

    The defendant submitted that Declaration 3 should not be made because there is no basis to conclude that s 6 of the Supreme Court Act is inconsistent with s 78 of the Judiciary Act.

14. [42]

    The defendant submitted that Declaration 4 should not be made. Section 79(1) of the Judiciary Act picks up and applies UCPR r 7.1 as a surrogate Commonwealth law in full because nothing in s 78 of the Judiciary Act ‘otherwise provides’. The terms of s 78 preserve the operation of procedural rules such as UCPR r 7.1(2)-(3) (picked up and applied by s 79(1)). As s 78 is silent on the question of whether a company is permitted to appear by some agent other than a barrister or solicitor, there is no inconsistency between UCPR r 7.1 and s 78 of the Judiciary Act in the relevant sense. Even if s 78 of the Judiciary Act is construed as conferring a right on an individual to ‘appear personally’ in proceedings, that right is not available to a company because a company is incapable of appearing ‘personally’ in court.

Consideration

1. [43]

   I agree with the defendant’s submissions as to why none of the declarations sought by the plaintiffs should be made. It is sufficient if I make the following additional observations.

2. [44]

   Clause 5 of the Constitution Act (which is often described as ‘covering cl 5’) and s 109 of the Constitution establish the supremacy of the Constitution and the laws of the Commonwealth made pursuant to the powers conferred by the Constitution over the legislation of the State of New South Wales: Felton v Mulligan (1971) 124 CLR 367 at 412 per Walsh J. As Gummow J observed in Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34 at [211] (footnotes omitted):

3. [45]

   The passage in Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901), p 353 to which Gummow J was referring in the above passage includes the following observations regarding the words ‘shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth’):

4. [46]

   The declarations sought by the plaintiffs seek to invoke cl 5 of the Constitution Act to invalidate various state laws including, but not limited to, r 7 .1 of the UCPR. The first difficulty faced by the plaintiffs is that declaratory relief must be directed to a real controversy, not merely a hypothetical dispute. The limitations on a court’s power to grant declaratory relief were noted by Mason CJ, Dawson, Toohey and Gaudron JJ in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 at 582:

5. [47]

   Declarations 1, 2 and 3 are stated at such a high level of generality that they raise, at most, merely hypothetical questions and should not be granted for that reason alone.

6. [48]

   In oral submissions Mr Tydeman sought to emphasise that s 5 of the Constitution Act makes ‘this Act’ binding on the courts, judges and people to which it refers. That is, of course, true. However, he was not able to explain the significance of those words in the present context beyond the fact that what is made binding by ‘this Act’, through s 5, is federal laws and the Constitution itself. The only federal laws which Mr Tydeman could identify as raising a potential inconsistency with the State laws referred to in the amended summons were s 124(1) of the Corporations Act and s 78 of the Judiciary Act.

7. [49]

   The only real controversy between the parties is whether, as the plaintiffs contend, s 124(1) of the Corporations Act or s 78 of the Judiciary Act has the consequence through cl 5 of the Constitution Act, read with s 109 of the Constitution, of invalidating UCPR r 7.1(2) or (3).

8. [50]

   In so far as to s 124(1) of the Corporations Act is concerned, the immediate difficulty with the plaintiffs’ contention that there is relevant inconsistency is that the meaning of a statutory provision must be determined by reference to the language of the statute read as a whole: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]. Relevantly, subsection (1) of s 124 is qualified by subsection (3) (‘for the avoidance of doubt, this section does not…’), so that the conferral on a company of the legal capacity and powers of an individual under subsection (1) does not give a company a right which the law of a State denies to the company. UCPR r 7.1 is such a law.

9. [51]

   The plaintiffs appear to recognise in the manner in which the submission recorded at [38] is made that s 124(1) is qualified by s 124(3) and they submit that s 124(3) must be read down by reason of cl 5 of the Constitution Act. However, nothing in cl 5 of the Constitution Act justifies reading down s 124(3); to the contrary, the starting point is to construe s 124 of the Corporations Act and then, having done so, to determine whether a law of New South Wales conflicts with it. Clearly, UCPR r 7.1 does not conflict with s 124 as it is specifically adopted by it through s 124(3).

10. [52]

    Clause 5 makes s 124 of the Corporations Act binding on the ‘courts, judges, and people of every State and of every part of the Commonwealth’ and within that third category are the plaintiffs themselves. Hence, they are bound, just as the courts and judges of this State are bound, by the effect given to UCPR r 7.1 by s 124(3) of the Corporations Act as a necessary limitation on the conferral on a company of the legal capacity and powers of a natural person under s 124(1) of the Corporations Act.

11. [53]

    In so far as s 78 of the Judiciary Act is concerned, there is no relevant inconsistency with UCPR r 7.1(2) and (3) given the terms of s 79(1) which adopts, as a rule of procedure, the requirements in rule 7.1. In any event, the words relied on in s 78 (‘parties may appear personally or by…barristers or solicitors’) are concerned with the right of audience in courts exercising federal jurisdiction (Esso Australia Resources Ltd v Dawson (1999) 87 FCR 588; [1999] FCA 363 at [30]) and permit such a right to be exercised either personally or by a legal practitioner. In the case of a company, appearance ‘personally’ is not possible and this is not affected by s 124(1) of the Corporations Act. While it provides that a company has the legal capacity and powers of an individual, it needs to be construed in a common sense way, and does not extend to giving to a company the capacity to act in a physical sense such as speaking in court. As the Full Court of the Federal Court (Allsop CJ, Foster and Gleeson JJ) said in Australasian Centre for Corporate Responsibility at [50], in rejecting a submission that a company can express an opinion by passing resolution in general meeting:

12. [54]

    To similar effect are the following observations in Austin & Black’s Annotations to the Corporations Act (LexisNexis, looseleaf) at [2B.124]:

13. [55]

    As the plaintiffs correctly submitted, a company acts through a human actor or actors and, in certain cases, the acts of the human actor are properly seen as acts of the company rather than of an agent of the company, as illustrated by Hamilton in the passage extracted at [33] above. However, it does not follow that a company, in such a case, is acting ‘in person’ or ‘personally’: see the discussion by Hallen J in Tanamerah Estates at [91]-[94] and the cases referred to at [39] above. But, more importantly, it is well-established that the manner in which a company may bring and conduct proceedings in a court may be limited by state legislation, including rules of court which operate as delegated legislation, and this does not involve a relevant inconsistency with cl 5 of the Constitution Act for the reasons given above.

Conclusion

1. [56]

   For the above reasons, the order of the Court will be that the amended summons be dismissed with costs.

2. [57]

   I will stand over the Vesting Proceeding until 5 February 2025 at 9.30am to allow the plaintiffs an opportunity to obtain legal representation or pursue any other alternative open to them for the future conduct of that proceeding.