High Court · Decided 24 November 2014

Bulk Trading SA v Pevensey Pte Ltd and another

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[2014] SGHC 236Case no. Suit No 571 of 2014 (Summons No 3899 of 2014)

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Steven Chong J:
Introduction
[1] Until very recently, while any person (or defendant) could begin and carry on proceedings in court (or enter an appearance and defend) by a solicitor or in person, a body corporate could not do so otherwise than by a solicitor, except as expressly provided by any written law. This legal restriction was relaxed with the introduction of O 1 r 9(2) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“ROC”) in 2011 to permit body corporates to be represented by their authorised officers with leave of court.
[2] In this case, a director of the first defendant, Pevensey Pte Ltd (“Pevensey Singapore”), Mr Agus Salim (“Mr Salim”), seeks leave of court under this new rule to represent Pevensey Singapore in the present proceedings. As this is the first occasion for the new rule to be considered by the court, this judgment will trace the historical justifications for the restriction, the experience of other jurisdictions in dealing with the issue, the development of O 1 r 9 which led to its current form, the proper judicial approach to such applications, the factors which the court should consider in the exercise of its discretion and, finally, whether conditions can be imposed in granting leave and if so what those conditions should be.
[3] Given the novelty of the issue, the fact that Pevensey Singapore is not represented by counsel, and the fact that the plaintiff, Bulk Trading SA (“Bulk Trading”) is not objecting to the application in principle, I decided that the determination of this issue would benefit from the assistance of an amicus curiae. With these considerations in mind, the court appointed Mr Colin Liew as the amicus curiae for this case.
[4] An appreciation of the background facts as well as an understanding of the underlying dispute between the parties out of which this application arises is essential for its proper determination.
Background facts
[5] Pevensey Singapore was incorporated in Singapore on 29 August 2013. Its issued share capital comprises one share of S$1.00 which is held by Mr Salim, an Indonesian resident. The second defendant, PT Pevensey Indonesia (“Pevensey Indonesia”), was incorporated in Indonesia on 23 March 2010. Mr Salim is also a director and shareholder of Pevensey Indonesia.
[6] Bulk Trading alleged that Pevensey Singapore’s current registered address at 10 Anson Road, #06-17 International Plaza, Singapore 079903 is occupied by Rockwills International Group, a corporate secretarial firm, and that Pevensey Singapore is a shell company.
[7] Bulk Trading first commenced trading with Pevensey Indonesia in 2011. It dealt primarily with Mr Salim and Mr Carey Ticoalu, the principal trader of Pevensey Indonesia. Those transactions were relatively small. In mid-2013, Bulk Trading expressed interest to purchase coal on a larger scale from Pevensey Indonesia. However it was Bulk Trading’s preference that payment should be made through Singapore in line with its practice with other suppliers. Pevensey Indonesia agreed to the proposal and, shortly thereafter, Pevensey Singapore was incorporated in order that Pevensey Indonesia “can establish a presence in Singapore and use Singapore banking channels”. Accordingly, Bulk Trading asserts that Pevensey Singapore is nothing more than a front for Pevensey Indonesia.
[8] Bulk Trading’s claims arise out of several agreements (“the Contracts”) entered into between Bulk Trading and Pevensey Singapore, including, inter alia:
(a) a Sale Purchase Agreement (Agreement Number BTPEV 5000 GAR 12/0913) (“the 1st SPA”) concluded in September 2013;and
(b) a Sale Purchase Agreement (Agreement Number BTPEV 5000 GAR 13/2013) (“the 2nd SPA”) concluded in December 2013.
[9] Both the 1st SPA and the 2nd SPA are governed by English law and contain arbitration clauses stipulating that disputes thereunder are to be referred to arbitration in Singapore.
[10] Bulk Trading filed its Statement of Claim on 25 July 2014, and this was served on Pevensey Singapore at its registered office on 29 July 2014. Its claims against Pevensey Singapore are essentially for short shipment, demurrage and failure to deliver the cargo of the contractual quality. As against Pevensey Indonesia, Bulk Trading’s case appears to be that Pevensey Indonesia is likewise liable to it on the basis that Pevensey Singapore is a “mere extension” of Pevensey Indonesia. In this connection, Bulk Trading has averred, inter alia, that:
(a) Pevensey Singapore does not have any employees or staff of its own and that all of Pevensey Singapore’s business dealings were in fact handled by Pevensey Indonesia;
(b) payments due to Pevensey Singapore were in fact remitted to Pevensey Indonesia’s account with Bank of Central Asia, Jakarta Branch; and
(c) in its dealings with Pevensey Singapore and Pevensey Indonesia, it dealt with, inter alia, Mr Salim.
[11] After disputes had arisen, the parties entered into settlement discussions. Bulk Trading raised several invoices to Pevensey Singapore and Pevensey Indonesia for payment of various settlement sums. This led to compensation being paid from Pevensey Singapore and/or Pevensey Indonesia to Bulk Trading in the sum of US$1,050,000. Bulk Trading’s claim is for the balance sum of US$1,873,850.11. Significantly, Bulk Trading alleged in the Statement of Claim that Pevensey Indonesia had admitted liability for the claims though it eventually refused to sign the settlement agreement. In its Defence filed on 8 August 2014 and signed by Mr Salim, Pevensey Singapore merely asserted that the dispute is required to be referred to arbitration in accordance with the provisions of the 1st SPA and the 2nd SPA and, accordingly, this court lacks jurisdiction. The Defence does not contain any substantive defence or denial to any of the averments asserted by Bulk Trading.
[12] It is relevant to point out that prior to commencing the present proceedings, Bulk Trading did commence arbitration proceedings against Pevensey Singapore on or around 13 May 2014. However Pevensey Singapore failed to take any steps to participate in the arbitration, leading Bulk Trading to commence the present proceedings on or around 29 May 2014.
The Worldwide Freezing Order
[13] On 29 May 2014, by Summons No 2653 of 2014, Bulk Trading applied for a Worldwide Freezing Order (“WFO”) against Pevensey Singapore and Pevensey Indonesia. The WFO was granted the next day by Lee Seiu Kin J:
(a) prohibiting Pevensey Singapore and Pevensey Indonesia from, inter alia, dealing with any assets in or outside Singapore up to the value of approximately US$2.5m; and
(b) permitting each of Pevensey Singapore and Pevensey Indonesia to spend US$50,000 on legal advice and representation, with liberty to agree with Bulk Trading’s solicitors that such spending limits should be increased.
[14] Bulk Trading served the writ of summons and the WFO on Pevensey Singapore on 2 June 2014, followed by the service of an amended writ of summons on 4 June 2014. Pevensey Singapore entered an appearance on 9 June 2014 (represented by Kim & Co) and, on the same day, Mr Salim affirmed an affidavit (“Mr Salim’s 1st Affidavit”) in response to the WFO deposing that the only assets of Pevensey Singapore as at 31 May 2014 are the balances in the following two bank accounts:
(a) a debit balance of S$320 in OCBC Account No 6478-7123-5001; and
(b) a credit balance of US$2,107.59 in OCBC Account No 5031-7906-1301.
Service out of jurisdiction on Pevensey Indonesia
[15] On or around 16 June 2014, Bulk Trading applied for leave under O 11, rr 1(a), (c) and (d) of the ROC to serve the amended writ of summons on Pevensey Indonesia out of jurisdiction. However, it is not at present clear whether the amended writ of summons has been successfully served on Pevensey Indonesia.
Summons No 3899 of 2014
[16] On 8 August 2014, Pevensey Singapore filed the present application pursuant to O 1 r 9(2) of the ROC. The application was supported by an affidavit affirmed by Mr Salim (“Mr Salim’s 2nd Affidavit”). Mr Salim’s 2nd Affidavit merely repeated the relief sought in the application, namely, that leave be granted for Mr Salim to represent Pevensey Singapore in these proceedings. It was otherwise bereft of any information or material as to why leave should be granted.
[17] At a directions hearing on 16 September 2014, I directed Mr Salim to file and serve a detailed supplemental affidavit by 26 September 2014 to set out the reasons why he should be granted leave to represent Pevensey Singapore in the present proceedings. Mr Salim duly filed his supplemental affidavit (“Mr Salim’s 3rd Affidavit”) on 26 September 2014 which:
(a) deposed that Mr Salim is a director of Pevensey Singapore;
(b) referred to and exhibited a Warrant to Act dated 24 July 2014 addressed to the Registrar of the Supreme Court and signed by the directors of Pevensey Singapore, ie, Mr Salim and Ms Jaclyn Seow Choon Keng for and on behalf of Pevensey Singapore, authorising Mr Salim to act for Pevensey Singapore in the current proceedings;
(c) exhibited, inter alia, Pevensey Singapore’s Memorandum and Articles of Association; and
(d) asserted that the dispute should be referred to arbitration.
[18] It is apparent that Mr Salim’s 3rd Affidavit, apart from exhibiting the formal documents authorising him to represent Pevensey Singapore and stating that the dispute should be referred to arbitration, does not explain why leave of court should be granted to authorise him to represent Pevensey Singapore. On the same day, Mr Salim also filed written submissions which to a large extent replicated the contents of Mr Salim’s 3rd Affidavit.
Default judgment
[19] Though Pevensey Singapore filed its Defence on or about 8 August 2014, it omitted to serve it on Bulk Trading within the timeframe required under the ROC. Consequently, on 14 August 2014, Bulk Trading applied for and obtained default judgment under O 19 r 3 of the ROC against Pevensey Singapore.
The present application
[20] That is the context out of which the present application arises, pursuant to O 1 r 9(2) of the ROC.
[21] Order 1 r 9 of the ROC confers a discretion upon the court to expand the concept of an “in person” party or litigant so as to include within it a corporate entity suing or represented by a duly-authorised officer. As such, it is intended to (and should) be read with:
(a) Order 5, r 6 of the ROC, which deals with the right to sue in person; and
(b) Order 12, r 1 of the ROC, which deals with entering an appearance and defending an action.
[22] Notably, the present application is correctly made only in respect of Pevensey Singapore and not Pevensey Indonesia, as the definition of “company” in O 1 r 9(6) of the ROC refers only to a company incorporated under the Companies Act (Cap 50, 2006 Rev Ed).
Historical reasons for the restriction on corporate representation
[23] At common law, a distinction had always been made between natural persons and body corporates in the conduct of court proceedings. Only litigants in person were allowed to represent themselves in court whereas body corporates could only do so by solicitors.
[24] While different jurisdictions have adopted different approaches to address this issue, it is clear that legislative intervention in virtually all the common law jurisdictions was necessary to enable body corporates to conduct legal proceedings other than through solicitors.
[25] Why was this distinction made in the first place? What were the justifications for the difference in the treatment of litigants in person and body corporates? Several reasons have been offered to rationalise the distinction – some obscure, some archaic but none particularly compelling in the current legal landscape.
[26] First, the traditional support for the restriction lay in the understanding that a company, not being a natural person but a collection of directors and shareholders, could not appear in court “in person”. However, such a view was already regarded as outdated or, in the words of Swinfen Eady LJ in Charles P Kinnell & Co Limited v Harding, Wace & Co [1918] 1 KB 405 at 413, as “ancient” almost a century ago. Modern companies are legal persons which, by the provisions of the Companies Act and their memorandum or articles of association, are usually conferred capacities, rights, powers and privileges equivalent to that of a natural person. Thus, there should be no real difficulty with the idea of a company participating in legal proceedings “in person” (see Jonathan Alexander Ltd v Proctor [1996] 1 WLR 518 at 527).
[27] Second, it has been observed that allowing a lay officer of the company to represent it in litigation would in effect give the company an advantage not afforded to individual litigants who, if they do not represent themselves, must be represented by lawyers (see Bay Marine Pty Ltd v Clayton Country Properties Pty Ltd (1986) 11 ACLR 326 (“Bay Marine”) at 332). However, this, in my view, merely restates the objection that a company cannot appear “in person”: if the person appearing for the company is not regarded as a representative but as the embodiment of the company, the objection cannot be sustained (see British Columbia Telephone Company v Rueben (1982) 38 BCLR 392 at [14]).
[29] Fourth, some judges, in espousing the traditional rule, appear to have been influenced by the fear that if the company’s chairman could appear on its behalf, so could its doorman (see Re An Arbitration between the London County Council and the London Tramways Company (1896–97) 13 TLR 254 (“Re London Tramways”)). As a matter of principle, however, it is difficult to place much weight on this objection, particularly in the case of “one-man” companies. In any event, such a concern is directly addressed by O 1 r 9(6) of the ROC by limiting the classes of persons who can act on behalf of the company to “any director or secretary of the company, or a person employed in an executive capacity by the company”.
[30] Fifth, another concern has been that those who act for a company must be in a position to cause the company to undertake obligations (see Bay Marine at 334). This sort of objection, however, is easily addressed by requiring (as O 1 r 9 of the ROC presently does) that the person who purports to act for the company furnish evidence of his authorisation by the company to do so.
[31] Sixth, as an extension of the prohibition against corporations being represented by its officers in court proceedings, the position in the US is that to allow such officers to represent corporations would in effect permit a non-lawyer to practice law without a license. Such an objection becomes irrelevant when appropriate legislation permits such representation as is addressed in Singapore by O 1 r 9(2) read with s 34(1)(ea) of the Legal Profession Act (Cap 161, 2009 Rev Ed).
[34] Once the objections are carefully analysed, it is not immediately apparent that the distinction between litigants in person and corporate litigants remains justifiable. It seems difficult, therefore, to resist the trenchant conclusion expressed by L C B Gower in Gower’s Principles of Modern Company Law (Sweet & Maxwell, 5th Ed, 1992) at p 195 that the common law rule “appears to serve no purpose other than to protect the monopoly of the legal profession”. It is therefore not surprising that many common law jurisdictions, including Singapore, have come round to the view that body corporates could and should in certain circumstances be permitted to represent itself through its duly authorized officers in legal proceedings. The difference in approaches is ultimately either a function of the differences in the wording of the relevant procedural rule or differing policy considerations as explained below.
The proper construction of O 1 r 9(2)
[35] Order 1 r 9(2) of the ROC provides as follows:
[36] This procedural rule plainly confers a wide discretion on the court to determine when leave should be granted for a company to be represented by an “officer” as defined in O 1 r 9(6). It neither circumscribes the circumstances in which it would be “appropriate” to grant leave nor does it specify the standard on which the court must be “satisfied” before doing so. The contours of this rule will therefore have to be shaped by the courts but given its relatively short existence in our legal landscape, it is not surprising that such an exercise has yet to be undertaken. The present application thus offers a timely opportunity for examining the proper construction of O 1 r 9(2) and I am fortunate in this respect to be able to tap on a wealth of authority from different jurisdictions which have considered when it is appropriate for companies to represent themselves in court proceedings. Before taking the analysis abroad, however, it is useful to first trace the history behind O 1 r 9(2) to appreciate how Singapore’s approach towards this issue has evolved over time as well as to see whether it might point to a clear way forward.
The historical development of O 1 r 9(2)
(1) The position before 1 July 2007
[37] Prior to 1 July 2007, the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“the ROC 2006”) did not contain anything to suggest that a company could seek representation by someone other than a solicitor in any legal proceedings. The combined effect of the then existing O 5 r 6(2) and O 12 r 1(2) was that, subject to any written law which provided to the contrary, a body corporate was completely prohibited from commencing or carrying on any action in court and, conversely, entering an appearance in or defending such action “otherwise than by a solicitor”. Order 5 r 6(2) and O 12 r 1(2) of the ROC 2006 are respectively set out here for ease of reference:
[38] Despite the apparently strict wording of these provisions, Lai Kew Chai J nevertheless took the view in Lea Tool and Moulding Industries Pte Ltd (in liquidation) v CGU International Insurance plc (formerly known as Commer Union Assurance Co plc) [2000] 3 SLR(R) 745 (“Lea Tool”) at [16] that they did not lay down an “immutable rule of procedure” mandating that any step taken in any proceedings by a corporate litigant had always to be done by a solicitor. Lai J cited with approval the English authority of A.L.I. Finance Ltd v Havelet Leasing Ltd and others [1992] 1 WLR 455 (“A.L.I. Finance”) (considered below at [51]) in recognising that courts had an “inherent power” to allow an officer of a company to appear on behalf of the company and take any step to continue with pending litigation. The learned judge was careful to state, however, that this power should be exercised only in sufficiently “exceptional cases”.
(2) The 2007 Amendment
[39] On 1 July 2007, the Rules of Court (Amendment) Rules 2007 (S 228/2007) (“the 2007 Amendment”) came into effect and amended O 5 r 6(2) and O 12 r 1(2) of the ROC 2006 by specifically empowering the Registrar to issue Practice Directions which could allow a body corporate to begin or carry on proceedings, or enter an appearance in or defend an action, otherwise than by a solicitor. The amended provisions respectively read as follows:
[40] The 2007 Amendment no doubt hinted at the possibility that the restrictions on corporate self-representation might be relaxed. However, until any Practice Directions to that effect had actually been issued, the early suggestion that corporate self-representation would henceforth be permitted unless “a particular and sufficient countervailing reason” was shown to the contrary (see Singapore Civil Procedure 2007 (GP Selvam gen ed) (Sweet & Maxwell Asia, 2007) at para 5/6/1) appeared to be somewhat premature. Indeed, no such Practice Directions were ever issued in the years subsequent to the 2007 Amendment and this dormancy led Quentin Loh J to observe in Van Der Laan Elisabeth Maria Everarda v Billionaires Management Worldwide (BMW) Pte Ltd and others [2010] SGHC 180 at [57] that “the position must be that a corporation can only carry on proceedings at trial by an advocate and solicitor and any suggestion to the contrary ... cannot, with respect, be right”.
(3) The 2011 Amendment
[41] On 3 May 2011, the Rules of Court (Amendment No 3) Rules 2011 (S 224/2011) (“the 2011 Amendment”) introduced O 1 r 9(2) in its present form as set out at [35] above. The significance of this should be clear from the history that preceded the 2011 Amendment – this was the first time in Singapore where express provision allowing companies to seek representation by persons other than solicitors had been made. As O 1 r 9(2) clearly interfaced with the long-standing prohibitory rules in O 5 r 6(2) and O 12 r 1(2), it was a natural consequence that both these provisions also had to undergo change as part of the 2011 Amendment. They are respectively worded in the current ROC as follows:
[42] It should be mentioned that, under the 2011 Amendment, all references to the “Court” in O 1 r 9 were confined specifically to the District Court and the Magistrate’s Court by virtue of the definition provided in O 1 r 9(6). In a similar vein, O 1 r 9(5) also limited the “relevant matter or proceeding” for which corporate self-representation could be sought solely to matters or proceedings before these courts. The overall consequence was that a company could only apply to be represented by someone other than a solicitor under O 1 r 9(2) if it was a party to proceedings before the District Court or Magistrate’s Court. It has been suggested in a fairly recent publication that this limitation on the scope of O 1 r 9 was justified since shareholders and other interested parties may have much more to lose if a company was not properly represented in proceedings in the High Court and Court of Appeal where higher sums were generally involved (see Supreme Court Practice 2014 vol 1 (Jeffrey Pinsler SC gen ed) (LexisNexis, 2014) at para 5/6/1B). However, that commentary must now be seen in light of an even more recent amendment to the ROC made by the Rules of Court (Amendment) Rules 2014 (S 299/2014) (“the 2014 Amendment”).
(4) The 2014 Amendment
[43] The 2014 Amendment came into operation on 1 May 2014. To be clear, it did not make any direct amendments to the actual wording of O 1 r 9(2) itself. What the 2014 Amendment did, however, was to amend the scope of O 1 r 9(2) indirectly by widening the definition of “Court” in O 1 r 9(6) and the definition of “relevant matter or proceeding” in O 1 r 9(5) so that, now, it is possible for a company to apply for leave to be represented by its own officer even in proceedings before the High Court and Court of Appeal (see Ho Pak Kim Realty Co Pte Ltd v Attorney-General [2014] SGHC 176 at [9]).
A broad outline of the possible approaches to O 1 r 9(2)
[44] It may be noticed from the foregoing account on the historical development of O 1 r 9(2) that each amendment leading up to its current form appears, unfortunately, to be unaccompanied by any sort of explanatory material which might shed light on the policy intention behind the progressive shifts. While there has been some external commentary on these amendments, I have noted that they do not assist greatly – one source was slightly hasty in its assessment (see [40] above) while the other has since been overtaken by events (see [42] above). In these circumstances, one has essentially to interpret the series of amendments unaided and, at this juncture, it may be preliminarily observed that, depending on where one places the emphasis in the historical development of O 1 r 9(2), it can arguably support three different possible approaches:
(a) First, one might take the view that the historical development of O 1 r 9(2) illustrates that there has been a gradual and considered expansion of the court’s power to permit corporate self-representation and that the 2014 Amendment represents merely the latest development in this overarching trend. Where once the court’s power was unarticulated and thus had to be drawn from its inherent jurisdiction, it now finds clear expression in the ROC and may be exercised even in respect of proceedings in the High Court and Court of Appeal. When viewed from this perspective, it might be argued that a liberal construction of O 1 r 9(2) is warranted. Applications for leave under this provision should, accordingly, be treated with a light touch.
(b) A second and directly opposing view, however, may be preferred by those who lay emphasis on O 5 r 6(2) and O 12 r 1(2). For proponents of this view, the amendments should not distract from the fact that, ultimately, these two provisions continue to prescribe the default position of prohibiting corporate self-representation whereas O 1 r 9(2) takes its place in the wider statutory scheme merely as an exception to the general rule. From this perspective, one may argue that a restrictive stance requiring exceptional or special reasons for obtaining leave should therefore be favoured instead.
(c) A third possible approach, however, is that the court should adopt a neutral starting position towards applications under O 1 r 9(2) without necessarily being predisposed one way or the other. This is especially so since the historical development of O 1 r 9(2) appears (as the two contrasting approaches above show) to be equivocal on this issue. On this third view, the court’s true focus should be on a judicious balancing of the relevant factors surrounding each application before deciding whether or not to grant leave. Given the neutrality of the court’s starting position, applicants are not required to demonstrate exceptionality in their circumstances but, by the same token, cannot expect that their applications will be routinely allowed and must therefore furnish sufficient reasons.
[45] As mentioned earlier at [24], practically all the common law jurisdictions have introduced legislation to allow for corporate self-representation and their respective judicial stances on this subject may broadly be said to range on a spectrum that reflects the approaches outlined above. The authorities originating from these jurisdictions therefore provide much grist for the mill but, in the course of considering them, it will become clear that the different judicial approaches are each a function of the particular wording of each jurisdiction’s relevant legislation and their specific policy concerns. As the wording of O 1 r 9(2) is neither an exact reproduction of another foreign statute nor is its underlying policy motivation entirely clear, one has necessarily to proceed with a degree of caution when attempting to derive guidance from the experiences abroad. Nevertheless, having said that, a survey of the relevant foreign authorities remains a productive exercise because it equips one with an understanding of why some jurisdictions may have adopted a more restrictive or liberal approach. That insight should, in turn, inform us of how best to construe O 1 r 9(2).
The judicial approaches abroad
(1) A general consensus: litigants in person versus corporate litigants
[46] Before canvassing the authorities in these different jurisdictions, I should highlight that they all begin from a common platform which provides a useful starting point to the analysis. This commonality lies in the differential treatment accorded by the courts to a litigant in person on the one hand and to a corporate litigant on the other. The former is generally able to represent himself in court proceedings as of right, whereas the latter generally does not enjoy such an entitlement (see [63] and [66] below for limited exceptions to this general rule in New Zealand and New South Wales respectively).
[47] There are sound reasons for requiring a corporate litigant to first seek leave of court before being able to represent itself in proceedings. In Winn v Stewart Bros Constructions Pty Ltd [2012] SASC 150 (“Winn”), Blue J identified three such rationales at [38] which can all be linked to the court’s inherent desire to ensure that justice is administered both fairly and efficiently in the interests of the immediate parties and the wider public:
[48] In light of these real and practical concerns, it is not difficult to see why the general prohibition against the lay representation of companies in O 5 r 6(2) and O 12 r 1(2) of the ROC has not been completely abolished by recent amendments. If such a course had been adopted, it would, in my view, tilt the balance too heavily in favour of considerations of access to justice while at the same time neglecting the abovementioned concerns. Instead, as with the overwhelming majority of common law jurisdictions, Singapore has elected to take a more calibrated approach by imposing the requirement of obtaining leave under O 1 r 9(2). That is crucial in allowing the court to scrutinise, inter alia, the competency of the representative with reference to the complexity of the underlying factual and legal issues (see also [105] below). Having conducted such an assessment, the court can then arrive at an informed view on whether it would, on a whole, be unduly prejudicial to the administration of justice if the lay representative is allowed to have carriage of the proceedings. Viewed in this way, the court can be said to perform an important sieving function under O 1 r 9(2).
[49] Moving away from this common starting point, however, one begins to see a divergence in the judicial approaches towards the issue of corporate self-representation. Some are more robust in upholding the general prohibition, while others may be less so. I turn now to examine these different approaches.
(2) A diversity of judicial approaches
(A) The United Kingdom
[50] My survey of the foreign authorities begins in the UK because, in my view, the development of the law on corporate self-representation within the UK itself provides a neat microcosm of how starkly different approaches can be taken on the same subject owing to a shift in policy focus.
[51] In the UK, a firm rule of practice was established early on at common law that companies were to be distinguished from litigants in person and could only conduct litigation and be represented in court by a solicitor or attorney (see Re London Tramways and Scriven v Jescott (Leeds) Ltd (1908) 53 Sol Jol 101). This strict common law position continued to prevail after the enactment of the Rules of the Supreme Court 1883 (UK) (see Frinton and Walton Urban District Council v Walton and District Sand and Mineral Co Ltd and another [1938] 1 All ER 649) and also while its subsequent version, viz, the Rules of the Supreme Court 1965 (UK) (“RSC”), was in force. As the RSC contained provisions that were substantively similar to O 5 r 6(2) and O 12 r 1(2) of the 2006 ROC, it too did not contain any specific provision allowing leave for corporate self-representation to be sought. Nevertheless, Scott J recognised in A.L.I. Finance at 462 that the court could exercise its inherent power to permit any advocate (lay or professional) to appear for a corporate litigant “if the exceptional circumstances of the case so warrant”. This, as will be recalled, was also the position in Singapore under the 2006 ROC (see [38] above).
[52] The existence of “exceptional circumstances” was not lightly found by the English courts and this is exemplified by the outcome in Radford. There, the sole director and 99% shareholder of the defendant company had argued at 449, inter alia, that the company lacked the means to instruct legal advisors, that the company had a good defence on the merits to the plaintiff’s claim, that the company’s case would go by default if it was unable to be heard, and that an adverse judgment would be damaging to him personally and to his business reputation. None of these factors, however, were regarded as exceptional by Sir Thomas Bingham MR (with whom Leggatt LJ and Roch LJ agreed) who affirmed at 449 that the ordinary rule prohibiting the lay representation of corporate litigants was one that would be “rarely waived”.
[53] This highly guarded stance, however, created much dissatisfaction at the time, and this is perhaps best encapsulated in the following remark by Scott J in A.L.I. Finance at 463:
[54] Such unhappiness over the unnecessary inconvenience and additional expense engendered by the prohibitory rule were duly noted by Lord Woolf in his final report to the Lord Chancellor on the civil justice system in England and Wales titled Access to Justice (July 1996). Lord Woolf observed at Chapter 12, para 62 that the strictures of this rule could be “particularly irksome” in relation to routine procedural steps which required no special skills and was thus prompted to examine the traditional arguments made in favour of the rule. These arguments could not, in Lord Woolf’s analysis, withstand scrutiny and his Lordship thus concluded at para 71 in the same chapter with the recommendation that, subject to the court’s discretion, a duly authorised employee of a company should “normally” be permitted to act on its behalf in court proceedings.
[55] Lord Woolf’s recommendation was subsequently accepted when the English RSC was replaced by the Civil Procedure Rules 1998 (SI 1998 No 3132) (UK) (“CPR”) and, as Pumfrey J observed in Tracto Teknik GMBH and another v LKL International Pty Ltd and others [2003] 2 BCLC 519 (“Tracto Teknik”) at [10], this has certainly brought about “a major change in the rules”. Presently, r 39.6 of the CPR provides that a company may be represented at trial by an employee if that employee has been so authorised by the company and “the court gives permission”. Rule 39.6, however, must further be read with Part 39A of the CPR Practice Directions which, crucially, provides explicit guidance to the court as to how it should exercise its discretion when deciding to grant permission. In this regard, para 5.3 of Part 39A specifically explains that r 39.6 is “intended to enable” a company to represent itself as a litigant in person; hence permission should generally be given by the court “unless there is some particular and sufficient reason why it should be withheld”. As may readily be observed from this, the default position of the English courts has experienced a complete reversal. While it still remains the case that a company cannot represent itself as a matter of right, it appears from the clear direction in the CPR Practice Directions that leave applications will now generally be allowed as a matter of course, unless there is shown to be some particular and sufficient reason to the contrary. In the absence of such clear guidelines in the ROC, one cannot say with the same confidence that O 1 r 9(2) should be approached in as liberal a manner as now prevails in the UK.
[56] To sum up the analysis on the UK’s position, it is apparent that the pendulum has swung from one end of the spectrum of possible approaches to the other. Instead of insisting on “exceptional reasons” to be furnished to justify corporate self-representation, the English courts are now focused on the reasons why a corporate litigant should not be allowed to represent itself. That is certainly a fundamental shift of the analytical paradigm and one which has been motivated by clearly articulated policy concerns. However, these policy concerns do not necessarily hold sway elsewhere and this is amply borne out by the respective judicial approaches in Hong Kong and New Zealand which are very much restrictive in nature.
(B) Hong Kong
[57] In Hong Kong, the statutory regime on the subject of corporate self-representation is contained in O 5 rr 6(2) and (3) of the Rules of the High Court (Cap 4A) (HK) (“RHC”) which provide, respectively, as follows:
[58] The broad architecture of the relevant provisions in the RHC may fairly be said to be somewhat similar to that in our ROC. Like Singapore, the general rule in Hong Kong is that a body corporate may not begin or carry on proceedings in court (O 5 r 6(2)), but, as with O 1 r 9(2) of the ROC, specific provision is made in the RHC which allows the body corporate to apply for leave to be represented by one of its directors (O 5 r 6(3)(a)). Further, it may also be noted that the broad wording of O 5 r 6(3)(a) of the RHC also does not elaborate on the circumstances in which leave should be granted. It is crucial to note in this connection, however, that the courts in Hong Kong have gone on to clarify that the general prohibition against corporate self-representation rests on the policy rationale of protecting potential creditors of the company and those who litigate against it. This policy rationale finds its clearest articulation in a passage of Bingham MR’s judgment in Radford at 448 which was cited with approval by Maria Yuen JA in Hondon Development Limited and another v Powerise Investments Limited and another [2003] HKCA 323 (“Hondon”) at [19]:
[59] Given the above policy concern, Yuen JA naturally came to the view in Hondon at [21] that the “normal rule” would be for a company to pursue litigation through lawyers. The learned judge recognised that there could be exceptions to this rule but, citing Radford, stated at [19] that it would not be enough for a company to show that it lacked resources or plead that it had a good cause of action. On this basis, Yuen JA revoked the leave which had been granted by the master below to the company in Hondon since the only reason which had been offered in support of the company’s application was that its “stringent financial condition” prevented it from instructing lawyers (see [18]).
[60] The policy rationale identified in Hondon continues to guide the Hong Kong judiciary’s approach towards leave applications under O 5 r 6(3) of the RHC. This is clear from a response by the Hong Kong Judiciary Administration in LC Paper No CB(2)2543/08-09(01), which was issued in September 2009, to a request for clarification on O 5 r 6 of the RHC by the Legislative Council Panel on Administration of Justice and Legal Services. In this response, the Hong Kong Judiciary Administration reaffirmed that the general prohibition against corporate self-representation was justified because “[t]o permit a limited company to pursue proceedings without legal representation, at no financial risk to its shareholders and directors, is inherently unfair to the other parties to the litigation”. This policy rationale, however, is no longer considered persuasive in the UK and, for my part, I have explained at [28] above why I do not find it particularly satisfactory either. Therefore, while it might appear attractive to draw from Hong Kong’s jurisprudence on this subject given the broad similarities shared by the RHC and the ROC, the divergence in judicial philosophies means that one must tread very carefully in doing so.
(C) New Zealand
[61] In New Zealand, there is no statutory prohibition against corporate self-representation in proceedings in the High Court and Court of Appeal but neither is there any clear rule which permits it. Nevertheless, it was authoritatively settled early on by the Court of Appeal in the leading case of Re G J Mannix Ltd [1984] 1 NZLR 309 (“Mannix”) that the rule which allowed litigants in person to represent themselves should not be extended by analogy to allow laymen to represent a company as of right in litigation in New Zealand’s superior courts. The Court of Appeal went on to recognise, however, that the courts retained a residuary discretion to waive this prohibition but it was envisaged that this would not be a frequent occurrence. As Cooke J stated at 314:
[62] This was echoed by Somers J at 316–317 in the following terms:
[63] It is pertinent to point out at this juncture that the position reached in Mannix appears to have partly been a product of New Zealand’s bifurcated treatment of proceedings in its superior courts and in the District Courts. Section 57(2) of New Zealand’s District Courts Act 1947 (No 16 of 1947) (NZ) specifically provides that a corporation “may appear by any officer, attorney, or agent of the corporation” but, as has been mentioned, there is no express equivalent insofar as proceedings in the High Court and Court of Appeal are concerned. In Mannix, Somers J noted at 316 the absence of such “special legislation” for proceedings in the superior courts and this appears to have influenced his view that the court’s discretion to allow corporate self-representation in these proceedings should therefore only be exercised sparingly in exceptional circumstances. This distinction also appears to have had a bearing on the decision of Cooke J who, in the first place, doubted at 313 whether the statutory exemption from the general common law prohibition remained appropriate in light of the District Court’s increased jurisdiction and the greater complexity of cases. Given this observation by Cooke J, it appears that he was convinced that the circumstances for relaxing this prohibition should a fortiori be stricter in respect of proceedings in the superior courts.
[64] The statutory regime for corporate self-representation in Singapore under O 1 r 9 of the ROC is clearly distinguishable from that which subsists in New Zealand. As highlighted above at [43], the defining feature of the 2014 Amendment to the ROC was to widen the definition of “Court” to cover proceedings in the High Court as well as the Court of Appeal. Accordingly, the particular court in which an action is commenced or defended is not in itself a material or even relevant consideration which affects the assessment of whether leave should be granted under O 1 r 9(2). This is therefore yet another illustration of my earlier observation that each jurisdiction’s approach to the question of corporate self-representation is necessarily tied to their respective statutory frameworks and underlying policies.
(D) Australia
[65] Australia has a rich panoply of case law on the subject of corporate self-representation but, when considered as a whole, it will be noticed that they do not disclose a single uniform approach to this issue. That is largely because Australia is a federal jurisdiction where different states and territories have adopted distinct rules to govern their respective court proceedings (see Miorada and another v Miorada and others [2005] WASC 105 at [29]). In my view, this makes it unproductive to embark on either a comprehensive or granular analysis of the authorities in all the different states and territories. Instead, I find that the analysis achieves greater clarity when one takes a macroscopic view of the Australian jurisprudence because, once this is done, one sees the emergence of two broad lines of authorities – one requires a company to show special or exceptional reasons before it will be allowed to represent itself, while the other sets the threshold lower by requiring only proof of sufficient reasons.
[66] Before illustrating these distinct judicial approaches with some cases, it is beneficial to first identify Australian legislation which bears some similarity to the ROC on the point of corporate self-representation. In this regard, it merits pointing out that in the South Australian case of Winn, Blue J has most helpfully conducted a comparative review of the different legislative schemes in Australia which he prefaces with the observation at [28] that they “range from one extreme … to the other extreme”. As regards the more restrictive extreme, Blue J had in mind the Western Australian Rules of the Supreme Court 1971 (WA) which essentially follows the English RSC in containing only a general prohibition against corporate self-representation without making explicit any provision for obtaining leave to act otherwise. At the more liberal extreme, however, are the procedural rules in New South Wales. Here, the position differs between the District Court and the Supreme Court and, in the latter, between plaintiff and defendant. Rule 7.1(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW) provides that, unless the court orders otherwise, a company may commence and carry on proceedings in the District Court by a duly authorised officer. As for proceedings in the Supreme Court, r 7.1(2)(a) read with r 7.1(3) essentially permits a director who is a co-plaintiff with the company to represent it in the same manner as proceedings in the District Court.
[67] The legislative scheme in Singapore is clearly positioned at neither extreme. Unlike the position in Western Australia, O 1 r 9(2) of the ROC specifically provides that leave may be obtained by a company to represent itself and, unlike the position in New South Wales, the ROC certainly does not go so far as to permit a company to represent itself as of right in proceedings at any court level. One therefore has to move inwards from the two extremes to find Australian legislation that more closely resembles the scheme under the ROC. The procedural rules which formerly existed in New South Wales provide a reference point in this regard, as do the current procedural rules in the Northern Territory. Much like the scheme under the ROC, both these sets of rules have a general provision prohibiting corporate self-representation. However, these rules differ from the ROC in that they do not contain a similar provision in the mould of O 1 r 9(2) which specifically allows for leave for corporate self-representation to be sought. Nevertheless, these procedural rules do expressly confer on the Australian courts a general power to dispense with the prohibition against corporate self-representation, though without specifying the circumstances when this would be appropriate. The manner in which this dispensing power should be exercised therefore forms the crux of the issue under these Australian rules, although different outcomes have been reached by the courts in the following two cases.
[68] In Bay Marine, the Supreme Court of New South Wales had to determine the proper interaction between Pt 1 r 12 and Pt 4 r 4(2) of the Supreme Court Rules 1970 (NSW) which were respectively worded as follows:
[69] The court in Bay Marine was unanimous in its view that the normal rule was provided for in Pt 4 r 4(2) – a company could not represent itself “otherwise than by a solicitor”. There was a divergence, however, between Kirby P on the one hand and Samuels and Mahoney JJA on the other as to whether or not this prohibition could be dispensed with under Pt 1 r 12. However that is not of material concern here since the latter two judges, who considered such dispensation to be impermissible, were nevertheless prepared to assume the contrary. Ultimately, what is of importance is that all the judges were on the same page that the prohibition in Pt 4 r 4(2) could only be dispensed with in “very exceptional circumstances” (Kirby P at 329) and that such dispensing power had to be exercised “only with the most meticulous care” (Samuels JA at 333).
[70] In the subsequent case of Alice Springs Abattoirs Pty Ltd v Northern Territory of Australia (1996) 134 FLR 440 (“Alice Springs”), the Supreme Court of the Northern Territory had to consider rr 1.13 and 2.04 of the Supreme Court Rules 1987 (NT) which are, respectively, as follows:
[71] The general structure of these provisions is largely similar to that which was considered in Bay Marine but, in Alice Springs, Kearney A-CJ declined to follow the position adopted by the Supreme Court of New South Wales. The learned judge was of the view at 454 that r 2.04 “imported a general discretion to be exercised in the interests of justice on ‘sufficient reason’ being shown, rather than only when ‘exceptional circumstances’ were established”. He also stated that r 2.04 “should not be narrowly construed” and that imposing the criterion of “exceptional circumstances” would inappropriately “set too high a standard”.
[72] Another piece of Australian legislation which falls between the two extremes identified by Blue J is that which was considered in Winn itself, viz, the South Australian District Court Civil Rules 2006 (SA). Rules 27(1) and (2) provide as follows:
[73] In Winn, the court had to consider the circumstances in which it would be proper to grant authorisation under r 27(1). The plaintiff resisted the application of the defendant company’s director by contending that such authorisation should only be granted in “exceptional circumstances” (see [22]) but this approach was rejected. Blue J paid close attention to the language of, and relationship between, rr 27(1) and (2) in reasoning as follows at [33]–[34]:
[74] It is evident from the foregoing discussion that, in Australia, a wide range of legislation exists to govern the permissibility of corporate self-representation and the courts rightly place due emphasis on the different wording and structure of the provisions before them to inform their respective approaches to this issue. Bay Marine and Alice Springs further illustrate, however, that different courts may not even arrive at the same conclusion when interpreting quite similar provisions. Ultimately, this means that the lessons which can be drawn from the Australian authorities are not altogether clear. Having said that, however, I find that cases such as Alice Springs and Winn are useful in demonstrating that the courts do not invariably gravitate to either a restrictive or liberal default position when considering whether or not to allow a company to be represented otherwise than by a solicitor. The requirement that sufficient reason be shown for this purpose by reference to all relevant factors strikes a middle ground and is an approach which has not been seen up to this point in the analysis of foreign authorities. In this regard, it may be recalled that the preference for a neutral starting position in construing O 1 r 9(2) of the ROC was also one of the possible approaches which I had broadly outlined at [44] and this is a point to which I shall return shortly.
(E) Canada
[75] The fifth and final common law jurisdiction which I propose to briefly consider is Canada. As Canada is a federal jurisdiction like Australia, there is also no consistent judicial approach to the question of corporate self-representation. Much inevitably turns on the specific wording of the different governing statutory provisions and that, again, is something to be borne in mind when extracting lessons for Singapore. For example, r 120 of the Federal Court Rules (SOR/98-106) specifically states that a court shall be represented by a solicitor in all proceedings unless the court “in special circumstances” grants leave for it to be represented otherwise. In light of such explicit wording, it is unsurprising that the Federal Court of Canada has adopted a very strict approach to granting leave. Thus, in Belarus Tractor of Canada v Advantage Trade Group Inc [2004] FC 946, the court affirmed at [7] that the onus of “special circumstances” in r 120 is “a high onus which requires that clear and unambiguous evidence be before the Court” and, further, that such circumstances must be “unusual, uncommon and exceptional and the result of external forces”. It should also be added that the impecuniosity of a company was recognised as being a pre-condition to the grant of leave. The position in Ontario, however, provides something of a contrast. In the absence of any threshold standard for granting leave being prescribed in r 15.01(2) of its Rules of Civil Procedure (RRO 1990, Regulation 194), the Ontario Superior Court of Justice has held that, at least in the case of small one-man companies, there is no reason why the grant of leave should be discouraged (see Thomas Lamond and another v Ray Smith and another (No 2) [2004] OTC 707 (“Thomas Lamond”) at [9]). In that sense, the position in Ontario may be regarded as being somewhat more liberal.
The position in Singapore
[76] With this variety of judicial approaches in mind, I return to consider what the position in Singapore should be and, in this connection, I shall take each of the three possibilities outlined at [44] in turn.
[77] First, I am not convinced that it is proper to adopt a liberal attitude towards construing O 1 r 9(2) of the ROC. While that is no doubt the position which currently prevails in the UK in respect of their equivalent legislation, there is little basis for Singapore to follow in those steps. As the discussion above shows, the present position in the UK not only resulted from a growing dissatisfaction with the common law rule which was seen as unduly impeding access to justice, but it is also mandated by the unambiguous language of the CPR Practice Directions. By contrast, one can only speculate as to the policy rationale underlying our introduction and subsequent expansion of O 1 r 9(2) and, more importantly, there is a complete absence of anything on the face of this rule to suggest that applications for leave should be treated more favourably than not. Looking beyond O 1 r 9(2), one also finds that, despite the recent rounds of amendments, O 5 r 6(2) and O 12 r 1(2) of the ROC are still part of the wider legislative framework governing corporate representation and the essence of these rules remains unchanged. They continue to prohibit corporate self-representation as a general rule whereas O 1 r 9(2) has been introduced as a special statutory carve out. When the relationship between the procedural rules is seen in this way, one will appreciate that approaching O 1 r 9(2) too liberally would effectively transform it into a wide gateway for bypassing the general prohibition with ease. That is an incongruous outcome which unsettles the entire statutory regime and, accordingly, I find that there is sound reason for rejecting a liberal approach.
[78] A necessarily restrictive posture towards O 1 r 9(2) also appears to me to be unattractive. As my discussion at [26]–[34] shows, the arguments which are often cited in support of the rule against corporate self-representation are neither particularly convincing nor sound. There thus seems to be no pressing reason for requiring the prohibition to be strictly observed and for limiting its waiver to only truly exceptional circumstances. Accordingly, as I have alluded to at [60] above, I am reluctant to follow the approach adopted in Hong Kong which is predicated on the policy rationale articulated in Radford. The restrictive approaches which have been preferred in New Zealand and the Federal Court in Canada are also the product of the specific wording or structure of their own respective legislation which are readily distinguishable from ours. In any event, I find that a strong reason militating against a restrictive approach is the fact that O 1 r 9(2) does not appear to be a mere statutory crystallisation of the position which existed in Singapore prior to the 2011 Amendment. During this time, the position as recognised in Lea Tool was that the court could permit corporate self-representation only in “exceptional circumstances” and that would be pursuant to the exercise of its inherent powers (see [38] above) and not under a particular provision of the ROC 2006 which was completely silent on this issue. However, with the introduction of O 1 r 9(2) via the 2011 Amendment, the courts are now vested with a wide discretion to grant leave and that appears to be inconsistent with, and hence a departure from, the previous position. If the drafters had intended for O 1 r 9(2) to be a statutory endorsement of Lea Tool, then one might have expected the use of explicit language to this effect, a good example of which would be r 120 of the Federal Court Rules in Canada which I have noted above at [75]. In the absence of such clear wording, however, I do not think that O 1 r 9(2) should be approached in an unduly restrictive manner; hence I also reject the second of the three possible approaches.
[79] In my view, the third approach which promotes a neutral outlook of O 1 r 9(2) is to be preferred because there is plainly nothing in the language used which suggests that the court must necessarily be inclined one way or the other. While the survey of other jurisdictions shows that many courts elsewhere have articulated a particular tendency on the subject of corporate self-representation, doing so in the local context only serves to place an unnecessary gloss over O 1 r 9(2) and should, accordingly, be resisted. In this regard, I find support in those Australian decisions which have also refrained from articulating a particular predisposition on this issue. The approach advocated by Hallen J in Tanamerah Estates Pty Ltd and Another v Tibra Capital Pty Ltd (2013) 272 FLR 365 (“Tanamerah Estates”) for determining when the court should exercise its general dispensing power in s 14 of the Civil Procedure Act 2005 (NSW) to permit corporate self-representation is instructive for present purposes (see [147]–[149]):
[80] This de-emphasis on the struggle to identify the proper default position under O 1 r 9(2) naturally shifts the analytical focus to how the court’s discretion is to be “exercised judicially and according to the requirements of justice”. In my view, that requires the court to recognise and closely consider all relevant factors which impact upon the merits of an application for leave and come to a reasoned determination on whether or not there is sufficient reason to grant it. With that being the case, I will go on to undertake a detailed (though not exhaustive) review of what such relevant factors may constitute in a later segment of this judgment. For now, I intend to wrap up the discussion on the proper construction of O 1 r 9(2) with a brief consideration of the specific class of persons who may be granted leave to represent a company.
The class of possible representatives
[81] Under O 1 r 9(2) of the ROC, the court may give leave for an “officer” of a company to act on behalf of the company in any relevant matter or proceeding if it is satisfied that it is appropriate in the circumstances to do so. An “officer”, in turn, is specifically defined in O 1 r 9(6) to mean, in relation to a company, “any director or secretary of the company, or a person employed in an executive capacity by the company”. This makes it clear that it is not merely any “officer” of a company, in the loose and ordinary sense of the word, who can be conferred with standing to represent a company. This term has been restrictively defined to encompass only a specific class of persons and it may further be observed from the statutory use of the word “means” (as opposed to “includes”) that such definition is intended to be exhaustive in nature. Potential applicants should be careful to note this.
[82] I should also mention for completeness that, given the express statutory definition of “officer” in O 1 r 9(6), there is little to be gained from trying to expand or restrict the permissible class of corporate representatives by reference to foreign statutory provisions which may be differently worded. For example, in line with its liberal approach to corporate self-representation, r 39.6 of the UK’s CPR simply provides that the court may grant permission to an “employee” to represent a company at trial. As has been judicially observed, this rule deliberately introduced a greater measure of flexibility into the ability of companies to choose their representative who need not be a director of a company (see Watson v Bluemoor Properties Ltd [2002] All ER 117). The RHC in Hong Kong, on the other hand, specifically states in O 5 r 6(2)(b) (see [57] above) that the court may only grant leave for a company to be represented by “one of its directors”. This evidently reduces the pool of permissible representatives. These foreign provisions stipulating who may have locus standi to represent a company clearly differ from the carefully-worded definition of “officer” in O 1 r 9(2) of the ROC. Accordingly, in construing this particular aspect of O 1 r 9(2), one should pay close heed to the wording of our home-grown definition rather than drawing inspiration from elsewhere.
Factors for the exercise of discretion
[83] Order 1 r 9(2) of the ROC does not on its face expressly identify the relevant factors for consideration by the court in the exercise of its discretion. As noted earlier, the discretion appears to be wide and unfettered. In this section of the judgment, I will examine how the discretion should be exercised with reference to a range of factors and, in so doing, authorities from other jurisdictions will once again be reviewed for their suitable application to Singapore, though always bearing in mind the differences in both the wording of the procedural rule as well as the differing policy priorities.
[84] In general, the experiences of other jurisdictions demonstrate a recurring and ultimately inevitable tension between two policy concerns.
[86] In my view, the key guiding principle which informs the exercise of the court’s discretion is succinctly set out in Tanamerah Estates at [151]:
[87] With these considerations in mind, I now turn my attention to examine the applicable factors to decide whether it is “appropriate” to grant leave for Mr Salim to represent Pevensey Singapore in the circumstances.
Compliance with the ROC
[88] Perhaps the starting point to be considered is whether the application seeking leave has been properly made pursuant to the ROC.
[89] The schema of the relevant provisions of the ROC is clear. A company cannot, without being represented by a solicitor, “carry on” (O 5 r 6(2)) or “defend” (O 12, r 1(2)) the proceedings, unless the leave of court is obtained under O 1 r 9(2) of the ROC. In this regard, I pause to observe that the Defence filed by Mr Salim without first obtaining leave is irregular to begin with. Further, must such a leave application be filed by a solicitor? It appears that this is not necessary because, under O 1 r 9(2), the Court may, “on an application by a company”, give leave for an officer of the company to act on behalf of the company.
[90] The formal requirements for seeking leave are set out in O 1 r 9(4) which provides as follows:
[91] Mr Salim has filed two affidavits in support of the application. In Mr Salim’s 2nd Affidavit filed on 8 August 2014, he deposed to his status as a director and enclosed a Warrant to Act on behalf of Pevensey Singapore while in Mr Salim’s 3rd Affidavit filed on 26 September 2014, he exhibited the Memorandum and Articles of Association of Pevensey Singapore thereby satisfying O 1 rr 9(4)(a)(i) and (ii). Strictly speaking, under O 1 r 9(4)(c), the affidavits were required to be “made by any other officer of the company” [emphasis added]. In this case this was not complied with since both affidavits were filed by Mr Salim himself. This requirement is to ensure that the application is made objectively with the authority of the company. This concern does not arise here given that a warrant to act has been produced and Mr Salim is the sole shareholder. The only other officer of Pevensey Singapore, Ms Jaclyn Seow Choon Keng, is a nominee director from Rockwills International Group who provides corporate secretarial services to Pevensey Singapore. Such non-compliance is therefore not fatal to the application. However recognising that Mr Salim’s 2nd Affidavit did not deal with the reasons why leave should be granted as is required under O 1 r 9(4)(a)(iii), at the directions hearing, I specifically directed Mr Salim to file a more detailed affidavit to set out the reasons why he should be granted leave to represent Pevensey Singapore. Mr Salim’s 3rd Affidavit filed on 26 September 2014 purportedly to comply with the court’s direction, as explained at [18] above, does no more than state that the dispute should be referred to arbitration. No reason whatsoever has been put forward as to why Mr Salim should be granted leave to represent Pevensey Singapore in the present proceedings. As noted by Smithers J in Re Molnar Engineering Pty Ltd v E J Burns Vj [1984] FCA 232, “[i]n an application of this kind the applicant should take the Court fully into its confidence”.
[92] The failure to comply with O 1 r 9(4)(a)(iii) is a serious defect in the circumstances of this application for the following reasons:
(a) There is consequently no material before the court to consider whether the discretion should be exercised in favour of granting leave.
(b) The omission or failure to state the reasons (despite the court’s clear direction to Mr Salim personally) also reflects the court’s concerns as to whether Mr Salim will be of any assistance to the court or will understand the obligations attendant to his right to represent Pevensey Singapore. This point will be separately elaborated below at [113]–[114].
(c) The repeated reprise by Mr Salim that the dispute should be referred to arbitration in accordance with the Contracts, without more, has a significant bearing on the bona fides of the application as explained below at [97]–[98].
The financial position of Pevensey Singapore and/or its shareholders
[93] Pevensey Singapore has filed an affidavit in response to the WFO in which it disclosed its assets in Singapore. Two bank accounts were disclosed showing a credit balance of US$2,107.59 in one account and a debit balance of S$320 in the other. Although the financial position of Pevensey Singapore does not appear to be healthy, it bears mention that Mr Salim has not explicitly stated in either of his two affidavits that the reason for the application is driven by the fact that Pevensey Singapore does not have access to financial resources to engage legal representation.
[94] This omission is not a mere oversight because it appears from the assertions in the Statement of Claim (which has not been expressly controverted), as well as the documentary evidence adduced for the WFO, that the financial resources of Pevensey Singapore and Pevensey Indonesia are co-mingled. After all, according to Bulk Trading, sums due to Pevensey Singapore were in fact remitted to Pevensey Indonesia’s bank account. Further, compensation of Bulk Trading’s claims in the sum of US$1,050,000 was paid by Pevensey Singapore and/or Pevensey Indonesia.
[95] Given the facts as asserted by Bulk Trading, I am not satisfied that Pevensey Singapore necessarily does not have access to funds to engage a solicitor. This becomes even clearer when the bona fides of the application is examined below.

The judgment continues past this page. Read the rest at eLitigation.

Bulk Trading SA v Pevensey Pte Ltd and another

Laws this judgment relies on

Grounds of decision

Introduction

Background facts

The Worldwide Freezing Order

Service out of jurisdiction on Pevensey Indonesia

Summons No 3899 of 2014

Default judgment

The present application

Historical reasons for the restriction on corporate representation

The proper construction of O 1 r 9(2)

The historical development of O 1 r 9(2)

(1) The position before 1 July 2007

(2) The 2007 Amendment

(3) The 2011 Amendment

(4) The 2014 Amendment

A broad outline of the possible approaches to O 1 r 9(2)

The judicial approaches abroad

(1) A general consensus: litigants in person versus corporate litigants

(2) A diversity of judicial approaches

(A) The United Kingdom

(B) Hong Kong

(C) New Zealand

(D) Australia

(E) Canada

The position in Singapore

The class of possible representatives

Factors for the exercise of discretion

Compliance with the ROC

The financial position of Pevensey Singapore and/or its shareholders