Al-Qawasmi v 3 Point Motor Pty Ltd & Anor (Ruling)

[2025] VCC 888

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMERCIAL DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-24-00716

ABDULHAMEED AL-QAWASMI

Plaintiff

V

3 POINT MOTOR PTY LTD (ACN 004 515 315)

and

MERCEDES-BENZ AUSTRALIA / PACIFIC PTY LTD (ACN 004 411 410)

First Defendant

Second Defendant

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JUDGE:	Her Honour Judge A Ryan
WHERE HELD:	Melbourne
DATE OF HEARING:	27 June 2025
DATE OF RULING:	27 June 2025 (ex tempore – revised 1 July 2025)
CASE MAY BE CITED AS:	Al-Qawasmi v 3 Point Motor Pty Ltd & Anor (Ruling)
MEDIUM NEUTRAL CITATION:	[2025] VCC 888

REASONS FOR RULING
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Subject:PRACTICE AND PROCEDURE - PLEADINGS

Catchwords:              Application for leave to file further amended statement of claim and variation of earlier orders of the Court – proposed pleading manifestly defective – whether plaintiff should be permitted to act as solicitor for proposed substituted corporate plaintiff

Legislation Cited:      Civil Procedure Act 2010; County Court Civil Procedure Rules 2018

Cases Cited:Wheelahan v City of Casey & Ors (No 12) [2013] VSC 316; Karam v Palmone Shoes Pty Ltd & Anor [2012] VSCA 97

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendants	Ms L Mills	Clayton Utz

HER HONOUR:

1This is an application dated 16 May 2025, made by the plaintiff seeking orders varying paragraph 7(c) of orders made by Her Honour Judge Kirton on 25 March 2025.

2On that day, Her Honour made orders dismissing the proceeding without adjudication on the merits, with a right of reinstatement. The plaintiff was able to make an application for reinstatement by 16 May 2025 with an accompanying proposed statement of claim. That application had to be made in accordance with paragraphs 7 or 8 of the orders.

3Under paragraph 7, if the plaintiff wished to proceed in the name of the corporate entity identified, then that application had to be made by an independent solicitor, taking the steps then outlined in the order. As has become apparent from submissions made today, there is no argument that if the matter were to proceed, then the claim would be made in the name of the corporate entity as opposed to the plaintiff in person.

4Under paragraph 8 of the order, if the application did not include the corporate entity, then that application had to nominate a litigation guardian to act for Mr Al-Qawasmi. That aspect of the application has gone away because there is no intention to proceed in the name of the individual and therefore, no need for a litigation guardian arises. The question then is whether there should be amendment or variation of the orders made under paragraph 7.

5The plaintiff seeks an extension of time of 21 days to reinstate the proceeding and/or be given leave to reinstate the proceeding, notwithstanding the solicitor acting for the proposed plaintiff company is a director and officer of the plaintiff. No independent solicitor has been appointed as was required under paragraph 7(c).

6Since the application was filed, the plaintiff conceded in written rebuttal submissions dated 26 June 2025 that the proposed further amended statement of claim required refinement and offered to replead.

7In paragraph 23 of those submissions, the plaintiff seeks:

(a)   leave to file a compliant amended statement of claim by 11 July 2025;

(b)   variation of paragraphs 6 and 7 of the 25 March 2025 orders to allow reinstatement without an external solicitor or litigation guardian; and

(c)   interim relief, being an advance of $60,000 to maintain what he described as ‘litigation viability’.

8The application is opposed by the defendants.

Leave to extend time

9I will deal firstly with the application to extend time. The plaintiff seeks an extension to 11 July 2025 to file a compliant statement of claim. As can be seen from the orders of 25 March 2025, the plaintiff was given some five weeks to find alternative solicitors who can then make an application by 16 May 2025. The plaintiff has chosen not to comply with paragraph 7(c) of these orders, and in the circumstances, the procedure for reinstatement was not followed by the plaintiff. His evidence regarding attempts to find alternative or independent solicitors is thin, as demonstrated by his affidavits, and lacking in detail.

10Whilst his financial circumstances may be poor, the plaintiff has not provided any detailed information about what attempts he has made to obtain alternative representation, such that the Court could be satisfied a compliant pleading could be served by 11 July 2025.

11In any event, it appears clear that the plaintiff wishes to prepare the further pleading himself and he does not want to comply with the orders set out, particularly, paragraph 7(c) of the earlier orders.

12In determining whether the plaintiff should be given leave to file yet a further amended statement of claim, the Court has to consider the interests of both parties and to do justice as between them. The defendants have been involved in litigation for some years and in this Court for over a year, and are yet to be provided with a properly pleaded claim. The plaintiff has had repeated opportunities to get his pleading right, and there comes a time when a litigant has had sufficient opportunity to advance its case. It should be noted in this case that the plaintiff has made eight attempts to file an acceptable pleading but continues to be incapable of producing a document which complies with well-established pleading principles as set out by Dixon J in Wheelahan v City of Casey & Ors (No 12),[1] and in particular, with the rules regarding pleadings as set out in order 13.[2]

[1] [2013] VSC 316, [25]

[2]County Court Civil Procedure Rules 2018

13Given the history of this matter, the Court can have no confidence that the plaintiff would be capable of providing a compliant pleading by 11 July 2025, given his repeated inability to do so in the past. To permit him a further opportunity to deliver what in all likelihood will be a further long and non-compliant pleading, would not be in the interests of justice or consistent with the overarching purpose contained in s7 of the Civil Procedure Act 2010. There comes a time, which is now, when the plaintiff has to accept responsibility for his own choices.[3]

[3]        Karam v Palmone Shoes Pty Ltd & Anor [2012] VSCA 97, [36]

14I consider the plaintiff should not be permitted to waste the Court’s time and its limited resources together with the defendants’ time any longer, when the Court can have no expectation that any further pleading could overcome the deficiencies identified in the earlier versions.

15Therefore, the application to extend time to file, what is described as a compliant pleading is refused.

Variation of the order

16That then leads into the next ground which is the variation of the order. As is accepted, Mr Al-Qawasmi wants to have the corporate entity introduced as the plaintiff instead of himself. This is because it is apparent that the corporate entity purchased the Mercedes-Benz vehicle in question as opposed to the plaintiff in person.

17Under r1.17 of the County Court Civil Procedure Rules 2018, a corporation must be represented by a solicitor. Her Honour Judge Kirton had ordered that the reinstatement application could not be made by the plaintiff on behalf of the corporate entity.

18None of the materials filed since 25 March 2025 provide any basis upon which that order should be varied to permit the plaintiff to act for the corporate entity of which he is a director. In fact, the barrage of materials sent by the plaintiff since 15 May 2025, including copious emails, affidavits, and submissions, which frequently included scandalous and irrelevant materials, demonstrate that the plaintiff is highly incapable of acting as a solicitor on the record for the company. He has sent some 34 emails to Registry and/or Chambers during this period.[4] By way of an example of the irrelevant and scandalous allegations, he has made several allegations against a member of counsel, who previously assisted him as amicus curiae at the last hearing, as well as making ill-founded allegations of misconduct on the part of the lawyers acting for the defendants. This conduct compels and confirms the finding that the plaintiff is not capable of running the litigation on behalf of the corporate entity and in a manner in keeping with the obligations imposed under the Civil Procedure Act 2010. These failures are even more egregious on his part given he is a legal practitioner and an officer of the court.

[4]        Third affidavit of William Atfield sworn 25 June 2025, [20]

19In my view, to permit the plaintiff to act for the corporate entity would most likely delay the litigation and increase costs unnecessarily, with the result that the requirement under r1.17 of the County Court Civil Procedure Rules 2018 should not be dispensed with.

20The plaintiff has failed to provide any compelling basis upon which paragraph 7(c) of the earlier orders should now be varied in the manner sought. As the evidence provided since 25 March 2025 reveals, this only serves to reinforce the fact that the orders made by Her Honour were appropriate. I am also confirmed in that view having regard to the submissions made by the plaintiff in person today and his demeanour in general, such that I am satisfied that he would not be competent to act as a solicitor for the corporate entity.

Interim financial relief

21The last ground was the order sought for interim financial relief. The plaintiff seeks a sum of $60,000 from the defendants.

22No proper basis was advanced upon which the Court could make such an order either in the written submissions or in oral submissions made today. The fact that such an unmeritorious and ill-founded claim was made is yet a further example of the plaintiff’s ignorance about how litigation should be conducted in this Court and generally.

23The interim financial relief sought by the plaintiff is refused.

Conclusion

24Accordingly, having regard to these matters, the plaintiff’s application to vary the orders made on 25 March 2025 is dismissed.

25The parties made submissions on the proposed orders consequent upon my ruling, including costs.

26I will make the following orders:

(a)   The plaintiff’s summons filed 16 May 2025 and listed for hearing on 27 June 2025 is dismissed.

(b)   The proceeding is dismissed.

(c)   No order as to costs.

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Certificate

I certify that these 6 pages are a true copy of the Reasons for Ruling of Her Honour Judge A Ryan delivered on 27 June 2025.

Dated: 1 July 2025

Associate to Her Honour Judge A Ryan