Commissioner for Fair Trading v Voulon
[2005] WASC 229 (S)
COMMISSIONER FOR FAIR TRADING -v- VOULON & ORS [2005] WASC 229 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 229 (S) | |
| Case No: | CIV:1772/2005 | 22 AUGUST 2005 & 23 MAY 2006 | |
| Coram: | HASLUCK J | 27/10/05 | |
| 7/06/06 | |||
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Application by first defendant to represent corporate defendants refused Application by first defendant to vary allowed | ||
| B | |||
| PDF Version |
| Parties: | COMMISSIONER FOR FAIR TRADING ROLF GERARD VOULON TEMPLE OF BEL PTY LTD (ACN 085 804 459) BILTRAD GLOBAL INVESTMENT CORPORATION PTY LTD (ACN 009 270 900) ANTIQUE QUALITY PTY LTD (ACN 071 854 432) PERPETUAL CAPITAL INVESTMENTS PTY LTD (ACN 009 186 412) |
Catchwords: | Injunction Application by unrepresented litigant to vary or discharge interim injunction Obligation to acknowledge requirements of Residential Tenancies Act 1987(WA) Breach of orders may constitute contempt of court Allegation of deprivation of income and livelihood and irreversible prejudice Variation allowed Application for in person litigant to represent corporate defendants Request for leave to file proposed statement of defence on behalf of corporate defendants by in person defendant refused No person other than a certificated legal practitioner shall engage in legal practice Body corporate may not carry on any proceedings other than by a solicitor Body corporate may not enter an appearance in an action or defend it otherwise than by a solicitor No new principles |
Legislation: | Fair Trading Act 1987 (WA), s 76(7) Interpretation Act 1984 (WA), s 5 Legal Practice Act 2003 (WA), s 4 Residential Tenancies Act 1987 (WA), s 5 Rules of the Supreme Court 1971 (WA), O 4 r 3(2), O 12 r 1(2), O 10, O 20 r 13 |
Case References: | Commissioner for Fair Trading v Voulon & Ors [2005] WASC 229 Dare v Pulham (1982) 148 CLR 658 Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd (2000) 22 WAR 372 Schagen v The Queen (1993) 8 WAR 410 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
DECISION : 7 JUNE 2006 FILE NO/S : CIV 1772 of 2005 BETWEEN : COMMISSIONER FOR FAIR TRADING
- Plaintiff
AND
ROLF GERARD VOULON
First Defendant
TEMPLE OF BEL PTY LTD (ACN 085 804 459)
Second Defendant
BILTRAD GLOBAL INVESTMENT CORPORATION PTY LTD (ACN 009 270 900)
Third Defendant
ANTIQUE QUALITY PTY LTD (ACN 071 854 432)
Fourth Defendant
PERPETUAL CAPITAL INVESTMENTS PTY LTD (ACN 009 186 412)
Fifth Defendant
(Page 2)
Catchwords:
Injunction - Application by unrepresented litigant to vary or discharge interim injunction - Obligation to acknowledge requirements of Residential Tenancies Act 1987(WA) - Breach of orders may constitute contempt of court - Allegation of deprivation of income and livelihood and irreversible prejudice - Variation allowed
Application for in person litigant to represent corporate defendants - Request for leave to file proposed statement of defence on behalf of corporate defendants by in person defendant refused - No person other than a certificated legal practitioner shall engage in legal practice - Body corporate may not carry on any proceedings other than by a solicitor - Body corporate may not enter an appearance in an action or defend it otherwise than by a solicitor - No new principles
Legislation:
Fair Trading Act 1987 (WA), s 76(7)
Interpretation Act 1984 (WA), s 5
Legal Practice Act 2003 (WA), s 4
Residential Tenancies Act 1987 (WA), s 5
Rules of the Supreme Court 1971 (WA), O 4 r 3(2), O 12 r 1(2), O 10, O 20 r 13
Result:
Application by first defendant to represent corporate defendants refused
Application by first defendant to vary allowed
Category: B
(Page 3)
Representation:
Counsel:
Plaintiff : Mr S L Dworcan
First Defendant : In person
Second Defendant : Ms A M Yap
Third Defendant : Ms A M Yap
Fourth Defendant : Ms A M Yap
Fifth Defendant : Ms A M Yap
Solicitors:
Plaintiff : Department of Consumer & Employment Protection
First Defendant : In person
Second Defendant : Corser & Corser
Third Defendant : Corser & Corser
Fourth Defendant : Corser & Corser
Fifth Defendant : Corser & Corser
Case(s) referred to in judgment(s):
Commissioner for Fair Trading v Voulon & Ors [2005] WASC 229
Dare v Pulham (1982) 148 CLR 658
Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd (2000) 22 WAR 372
Schagen v The Queen (1993) 8 WAR 410
Case(s) also cited:
Nil
(Page 4)
1 HASLUCK J: An application has been made in these proceedings to vary certain restraining orders made previously and for related orders. Accordingly, I must begin by looking at the background to the application.
2 The plaintiff, the Commissioner for Fair Trading, sought relief by way of interim injunctions pursuant to provisions of the Fair Trading Act 1987 (WA) in respect of certain alleged infringements of the Residential Tenancies Act 1987 (WA). The central issue was whether the occupants of residential premises owned and operated by the defendants were tenants as distinct from lodgers.
3 The plaintiff contended that the occupants were tenants and deserving of the protection afforded by the Residential Tenancies Act. The defendants submitted that they were lodgers with the result that the relevant provisions of the Act did not apply. The first defendant acknowledged that he was the spokesman for and the person principally involved in the management of the corporate defendant.
4 On 27 October 2005 I delivered a written judgment in favour of the plaintiff to which was annexed the various restraining orders made on that occasion: Commissioner for Fair Trading v Voulon & Ors [2005] WASC 229.
5 I held that there was a serious issue to be tried of the kind contended for by the plaintiff; that is, that the agreements being utilised by the first defendant to evidence the arrangements made with occupants of the subject premises should properly be characterised as residential tenancy agreements to which the provisions of the Residential Tenancies Act applied. I was satisfied also that the requirements of the Residential Tenancies Act and the Fair Trading Act had not been complied with in various respects identified by the plaintiff in the presentation of its case. This lack of compliance was due essentially to the first defendant's stance, namely, that the Residential Tenancies Act did not apply to the subject agreement.
6 Further, I was of the view that the balance of convenience weighed in favour of the grant of restraining orders. The plaintiff was seeking to enforce remedial legislation enacted with a view to protecting the public interest. The orders sought did not preclude the defendants from letting out their premises and carrying on their business, although it would be necessary for them to make adjustments to the accommodation agreements in the manner in which they conducted the businesses. I was
(Page 5)
- not persuaded that this would give rise to prohibitive expense or cause the businesses to fail, for the first defendant himself had said that he was in the habit of revising his accommodation agreements from time to time and responding to changed circumstances.
7 The restraining orders dated 27 October 2005 were lengthy and amounted to 25 paragraphs in all. I pause to note, as these orders are important for present purposes, that orders 2 and 13 read as follows:
"2. The First Defendant, whether personally, by his servants or agents or otherwise be restrained until judgment or further order from directly, or being involved in the conduct of the Second to Fifth Defendant in, representing to any current, former or prospective occupant ('Occupant') of residential premises of the nature described in 'Annexure A' ('Premises') whether orally or in writing or by conduct that the Occupant is, was or will be a boarder, lodger or licensee of the Premises or anything other than a tenant.
13. The Second to Fifth Defendants and each of them, whether by their directors, servants, agents or otherwise be restrained until judgment or further order from representing to any Occupant of any Premises whether orally or in writing or by conduct that the Occupant is, was or will be (as the case may be) a boarder, lodger or licensee of the Premises or anything other than a tenant.
…
Annexure A
Premises owned by any Defendant in any capacity whatsoever including, but not limited to, a house, apartment, townhouse, unit, flat or other similar dwelling situated in Western Australia capable of being let to a third party or third parties individually or jointly for a fee or any other consideration for the purposes of residential accommodation."
8 The defendants are now required to file a statement of defence pursuant to the Rules of the Supreme Court 1971 (WA) and related programming orders so that the matter can proceed to trial. It seems that this has given rise to a decision by the first defendant to dispense with the services of his former legal advisers, Corser & Corser, and to raise the
(Page 6)
- matters that are now before me, namely, an application for leave to file a statement of defence on behalf of the corporate defendants and directions that the first defendant be at liberty to represent those defendants. Further, the first defendant has brought on an application to vary or discharge the 27 October 2005 restraining orders previously made. These applications are supported by an affidavit of the first defendant sworn 27 April 2006 and a further affidavit by the first defendant sworn 4 May 2006.
9 I digress briefly to note that at the hearing before me a legal practitioner from Corser & Corser appeared to confirm that although the law firm in question had not formally withdrawn as solicitors for the corporate defendants both she and the firm were presently without instructions. She sought an order pursuant to O 8 r 7 of the Rules allowing for withdrawal. The first defendant confirmed, as spokesman for himself and the corporate defendants, that the instructions of the law firm had been terminated and he had no objection to the proposed withdrawal. Counsel for the plaintiff did not object. In these circumstances, I was prepared to make the order sought.
10 This brings me to the first defendant's application to represent the corporate defendants and for leave to file a defence for the second to fifth defendants.
11 The first defendant says in his affidavit sworn 4 May 2006 that by virtue of his sole directorship of the second to fifth defendants he is authorised to swear the affidavit on their behalf and, by implication, that he is authorised to apply to lodge a defence for those defendants.
12 The first defendant says further in his affidavit that by letter dated 27 April 2006 to the Acting Principal Registrar he sought leave to file the proposed defence. He was then advised that he was required to file a formal application seeking leave to file a defence. I note in passing that the proposed statement of defence simply admits certain of the allegations in the statement of claim but then says in par 4 and par 5 that in relation to pars 7 to 181 of the statement of claim the first to fifth defendants deny each and every allegation and deny that the plaintiff is entitled to the relief sought or to any relief whatsoever. The proposed statement of defence makes no attempt to deal with the particulars of the claim being advanced against the defendants or to set up a positive line of defence or any reason in law as to why the claim cannot be made out. This is contrary to O 20 r 13 which requires that every pleading must contain the necessary particulars of any defence. The general rule is that a party is entitled to a
(Page 7)
- statement of the opponent's case sufficiently clear to allow him or her a fair opportunity to meet it: Dare v Pulham (1982) 148 CLR 658 at 664.
13 It will be useful at this point if I refer also to the first defendant's affidavit of 27 April 2006. This affidavit purported to be directed principally to the application to vary the restraining orders previously made but the contents of it arguably had a bearing upon the other issues before me.
14 The first defendant said in his 27 April affidavit that the application to vary is made pursuant to par 23 of the 27 October interim order (in fact par 24) which allow to the parties the liberty to apply to dissolve the various orders; pursuant to s 76(7) of the Fair Trading Act; pursuant to the Court's inherent jurisdiction to vary or discharge a provisional or interlocutory order.
15 The first defendant went on to say that he was presently 43 years of age and left school at 15 years of age. Since January 1998 his primary source of income has been derived from managing or operating businesses that provide boarding or lodging accommodation services to individuals, such businesses being conducted either in his own name or through his various corporate entitles including the second to fifth defendants. He said that the agreements used in respect of the accommodation services were tailored to suit the specific requirements of the first to fifth defendants including the particular dwellings and the particular circumstances of each individual occupant or occupants of those dwellings. He said that he wished to continue to manage or operate those businesses through his corporate entities and to commence a new business, namely, offering holiday accommodation services to individuals. He exhibited to his affidavit certain "precedent or pro forma agreements" that he wished to use upon the basis that such agreements are exempt pursuant to s 5(2)(d) and s 5(2)(e) of the Residential Tenancies Act.
16 I pause here to remind myself of certain statutory provisions that were dealt with at greater length in my earlier judgment. In summary, s 5(1) of the Residential Tenancies Act states that the Act applies to any residential tenancy agreement. Section 3 defines a residential tenancy agreement as being any agreement, whether express or implied, under which any person for valuable consideration grants to any other person a right to occupy, whether exclusively or otherwise, any residential premises, or part of residential premises, for the purpose of residence.
(Page 8)
- Residential premises are defined as "premises that constitute or are intended to constitute a place of residence".
17 Section 5(2)(d) of the Act provides that the Act does not apply where the occupant is a boarder or a lodger. Section 5(2)(e) provides that the Act does not apply to any residential tenancy agreement where the agreement is bona fide entered into for the purpose of conferring on a person a right to occupy premises for a holiday. The Act contains various provisions concerning the rights and obligations of owner and tenant which are clearly designed to protect the position of consumers seeking to obtain accommodation.
18 The first defendant went on to say in his 27 April affidavit that the interim restraining orders, as presently framed, preclude him and each of his entities from carrying on lawful business activities, namely, boarding accommodation, lodging accommodation and holiday accommodation. He is conscious that if the defendants breach the interim orders in any material way that such conduct could constitute a contempt of court. The restraining orders are expressed to continue until judgment in these proceedings and, unless the orders are varied, he will be deprived of his usual income and livelihood and suffer irreversible prejudice, as it seems that the action may not be brought to trial until some time in 2007 or possibly later.
19 The first defendant said that he is presently relying on the support of family and friends to get by on a day-to-day basis. He instructed his former solicitors to cease acting on his behalf, and on behalf of the corporate defendants, as he could no longer afford to pay legal fees being incurred to defend the proceedings. He referred also to the plaintiff not being required to provide the usual undertaking as to damages as a pre-condition to the grant or continuation of the injunction.
20 The defendant referred also to communications with the Commissioner for Fair Trading prior to the commencement of proceedings which, on his account, were aimed at resolving the matters in issue. It is said that both then and later he failed to receive any satisfactory response. In the period 10 November 2005 to 1 March 2006 he has sent approximately 20 emails to the plaintiff's legal representative in an attempt to resolve all outstanding issues in the proceedings. This has not produced a satisfactory response. It is for these reasons that an order is sought in terms of the first defendant's minute of proposed final order dated 27 April 2006 which was submitted to me at the hearing.
(Page 9)
21 I will not traverse the first defendant's minute of proposed final order in its entirety. However, in essence, orders are sought that the first to fifth defendants shall have leave to negotiate or contract with any prospective third party or parties in accordance with proposed agreements annexed to the proposed orders. The thrust of the documents is outwardly to acknowledge an obligation to comply with the provisions of the Residential Tenancies Act but with that compliance being arguably structured so as to bring to account the exemptions allowed for in respect of boarding accommodation, lodging accommodation and holiday accommodation.
22 Before turning to the precise effect of the prohibition in the Rules of the Supreme Court against a company being represented otherwise than by a solicitor, it will be useful to view the relevant provisions in a context established by the previously decided cases and by legislation bearing upon the matter in question. My reasoning in that regard is set out in full in the judgment I delivered in Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd (2000) 22 WAR 372. Accordingly, I will simply summarise the main points made in the course of the discussion in that case.
23 A corporation in the common law sense is simply a legal device by which rights and duties are attributed to a fictional entity equated for many purposes to a natural person. Corporations law now allows for a company to be incorporated on the application of only one person and to exist as a single shareholder company, if that is desired. Nonetheless, the overriding concept is that a company is a distinct entity and its rights and liabilities must be viewed separately from the individuals involved in its operations.
24 Section 123 of the Legal Practice Act 2003 (WA) provides that no person other than a certificated legal practitioner shall engage in legal practice. Nonetheless, this provision is not to be construed as preventing a party from appearing or defending in person or appearing before a court if that appearance is authorised by law. The effect of s 5 of the Interpretation Act 1984 (WA) is that the term "person" is to be construed as including a company.
25 Order 4 rule 3(2) of the Rules of the Supreme Court provides that a body corporate may not begin or carry on any proceedings otherwise than by a solicitor. That must be read in close conjunction with O 12 r 1(2) which provides that a body corporate may not enter an appearance in an action or defend it otherwise than by a solicitor. The need for consistency
(Page 10)
- suggests the notion of defending an action refers essentially to taking a step in the proceedings or carrying on the action.
26 It was held in the Four Seasons' case (supra) that in the light of O 12 r 1(2), and notwithstanding the inherent jurisdiction of the Supreme Court to regulate its proceedings, the sole shareholder and former director who sought to represent the subject company in that case was not at liberty to take a step in the action on behalf of the respondent company. To allow him to file and rely upon his affidavits would be to allow him to "defend" the proceedings and his application to do so should be refused. The Court does not have power to dispense with the explicit requirements of the Rules with the result that, even in exceptional circumstances, an individual is not at liberty to take a step in the action on behalf of a company.
27 However, the Court can, pursuant to its inherent power to regulate its own proceedings, permit a person other than a duly qualified legal practitioner to address the Court or actively participate in proceedings, in rare and exceptional cases. See also Schagen v The Queen (1993) 8 WAR 410. It was pursuant to this latter power that at the hearing before me I allowed the first defendant to speak not only on his own behalf as a defendant seeking to vary the restraining orders but also for the limited purpose of seeking to explain to me the current situation of the corporate defendants and to confirm that the instructions given to their former legal advisers had been terminated.
28 I consider that I am bound to apply the ruling in the Four Seasons' case (supra) to the situation before me. I cannot and therefore will not grant leave to the first defendant to represent the corporate defendants or to take any step in the proceedings on their behalf including the filing of the proposed statement of defence. Further, and in any event, I consider that any supposed discretionary power to grant leave ought not to be exercised in favour of allowing leave because it has not been demonstrated as a matter of evidence that the corporate defendants cannot obtain legal representation. The rationale for the prohibition is that otherwise it might be open to unqualified persons to appear for a company and render the company liable to large impositions for costs without proper authority or regard for the position of the corporate entity as contrasted with the position of the individual who seeks to obtain, directly or indirectly, a personal benefit by purporting to speak on behalf of the company. I am of the view also that the proposed statement of defence is not in a satisfactory form and for that additional reason leave should not
(Page 11)
- be allowed to the first defendant to file and serve such a document on behalf of the corporate defendants.
29 It follows from this ruling that I cannot give consideration to that part of the first defendant's 27 April affidavit in which it is suggested that the corporate defendants wish to vary the 27 October restraining orders and may be subject to prejudice if the orders are not varied. If those defendants wish to pursue an application to dissolve or vary the orders it will be necessary for them to be represented by a solicitor. However, it follows from earlier discussion that I am at liberty to consider the first defendant's application to vary the restraining orders upon the basis that he is an unrepresented litigant with an entitlement to appear before the Court on his own behalf.
30 The application to vary the orders was opposed by counsel for the plaintiff. In essence, it was put to me that the evidence sought to be relied upon was insufficient to warrant an extensive variation of the kind proposed. The Court was being asked to approve adjustments to the first defendant's mode of doing business which was in the nature of an advisory opinion about the proposed new agreements. This was inappropriate in circumstances where there was no justiciable dispute before the Court as to the bona fides of the first defendant and other issues as to the suitability of the proposed agreements and how they would be applied to particular occupants of premises. The restraining orders, like statutory provisions, could not be said to interfere with lawful activities so long as the first defendant and the corporate defendants simply complied with the requirements of the orders and of the provisions of the Residential Tenancies Act.
31 However, in an endeavour to clarify the nature of the obligations, counsel for the plaintiff indicated that the plaintiff would agree to par 2 and par 13 of the orders being varied to read as follows:
"2. The First Defendant, whether personally, by his servants or agents or otherwise be permanently restrained from directly, or being involved in the conduct of any of the Second to Fifth Defendants in, representing to any current, former or prospective occupant ('Occupant') of residential premises of the nature described in 'Annexure A' ('Premises') in connection with a current, past or prospective residential tenancy agreement of the nature described in 'Annexure B' ('Residential Tenancy Agreement'), whether orally or in writing or by conduct
- that the Occupant has, had or will have an interest in the Premises other than an interest under a Residential Tenancy Agreement.
- 13. The Second to Fifth Defendants and each of them, whether by their directors, servants, agents or otherwise, in connection with a Residential Tenancy Agreement, be permanently restrained from representing to any current, former or prospective Occupant whether orally, or in writing or by conduct that the Occupant has, had or will have an interest in the Premises other than an interest under a Residential Tenancy Agreement.
Annexure A
Premises owned by any Defendant in any capacity whatsoever including, but not limited to, a house, apartment, townhouse, unit, flat or other similar dwelling situated in Western Australia capable of being let to a third party or third parties individually or jointly for a fee or any other consideration for the purposes of residential accommodation.
Annexure B
A residential tenancy agreement being any agreement, whether express or implied, under which any person for valuable consideration grants to any other person a right to occupy, whether exclusively or otherwise, any Premises, or part of any Premises, for the purpose of residence but does not include a right of occupancy under or of a nature set out in s5(2) of the Residential Tenancies Act 1987."
32 I am not persuaded that the 27 October restraining orders previously made should be varied in the manner contended for by the first defendant. The proposed variation orders represent a fundamental departure from the justiciable issues that were under consideration at the time of the former hearing and which were dealt with at length in my previous judgment. I am persuaded by what has been put to me by counsel for the plaintiff that the orders proposed by the first defendant open up entirely new issues which would mean that the orders cease to reflect the interim relief that was thought to be appropriate. Accordingly, the first defendant's application to vary will be dismissed.
(Page 13)
33 However, for the sake of clarification and bearing in mind that this proposal comes from the plaintiff, I am minded to approve a variation of the kind proposed in the plaintiff's minute mentioned earlier, save that, to be consistent with the relief previously granted, I consider that the defendants should not be "permanently restrained" but simply restrained until judgment, and the language of the proposed orders must be adjusted accordingly.
34 I will hear from the parties as to this aspect of the matter, and as to whether any further orders or directions are required. I will also give consideration to the question whether any further time should be allowed for the filing of statements of defence by the defendants.
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