Federal Circuit and Family Court of Australia
(DIVISION 2)
Gold Developments Pty Ltd v Queensland Inspection Services Pty Ltd [2022] FedCFamC2G 867
File number(s): MLG 1588 of 2022 Judgment of: JUDGE BLAKE Date of judgment: 21 October 2022 Catchwords: CONSUMER LAW– PRACTICE AND PROCEDURE – Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 – Rule 9.04 – requirement that corporation be represented by a lawyer unless leave granted – relevant considerations identified and addressed – application for leave refused. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth), ss 175, 190, 191.
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, rr 1.07, 9.04, 13.13.
Federal Court Rules 2011, r 4.01
Supreme Court (General Civil Procedure) Rules 2005, r 1.17.
Cases cited: Bay Marine Pty Ltd v Clayton Country Properties Pty Ltd (1986) 8 NSWLR 104
Damjanovic v Maley (2002) 195 ALR 256
Molnar Engineering Pty Ltd v Burns (1984) 3 FCR 68
Pacific Air Freighters (Qld) Pty Ltd v Toller (2000) 171 ALR 519
Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia (No 12) [2012] FCA 289
Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241
Wong v Dong Lai Sun Massage [2016] FCCA 18
Worldwide Enterprises Pty Ltd v Silberman & Anor [2010] VSCA 17
Division: Division 2 General Federal Law Number of paragraphs: 19 Date of hearing: 11 October 2022 Place: Melbourne Advocate for the Applicant: Mr M Kitanovski Solicitor for the Applicant: None Counsel for the Respondent: Ms S Hogan Solicitor for the Respondent: Mills Oakley ORDERS
MLG 1588 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GOLD DEVELOPMENTS PTY LTD
Applicant
AND: QUEENSLAND INSPECTION SERVICES PTY LTD
Respondent
order made by:
JUDGE BLAKE
DATE OF ORDER:
21 OCTOBER 2022
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed by the Applicant on 9 September 2022 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BLAKE
This is an application by Gold Developments Pty Ltd (‘Company’). It seeks an order that leave be given to its sole director, Mendo Kitanovski, to represent the Company in the present proceeding. The application is opposed by the respondent.
BACKGROUND
On 8 July 2022, the Company filed an application and Statement of Claim in the Court. The application and Statement of Claim were prepared by Mr Kitanovski on behalf of the Company. For present purposes, it is sufficient to record that in the Statement of Claim, the Company makes…
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- Case
- [2022] FedCFamC2G 867
- Decision Date
CaseChat Overview and Summary
The legal issues at hand involved interpreting the guiding principles and relevant considerations for exercising the Court's discretion to dispense with the requirement of legal representation as stipulated in Rule 9.04. The Court considered the complexity of the case, financial constraints, the ability of the proposed representative to conduct the case objectively, and whether the matter could proceed in an orderly manner without a solicitor. The Court also examined the potential impact of granting leave on Court resources and other litigants. The Court referenced several authorities to identify and address the relevant considerations for exercising its discretion, including the need to consider the objects and purposes of the governing legislation and rules relating to case management.
The Court found that the matter was not straightforward, as the claims, while based on a limited factual matrix, were complex and involved misleading and deceptive conduct, injurious falsehood, and defamation. The Court also noted the difficulty Mr Kitanovski had in addressing the elements of each cause of action. After reviewing all relevant considerations, the Court concluded that it was not in the interests of justice to grant leave for Mr Kitanovski to represent the corporation. Consequently, the application for leave was refused.
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Ratio Decidendi
Legal Principle Established
Rule 1.07 makes clear that the guiding principle for the Court to exercise its discretion to dispense with compliance with rule 9.04 is the ‘interests of justice'. Further, the power to dispense with the requirement should be exercised by reference to 'all relevant considerations' see Molnar at 73. A review of the authorities referred to disclose that the following considerations, among others, are relevant to the Court exercising its discretion to dispense with the requirement in rule 9.04: the complexity of the case (see Termi-Mesh at [13]); the manner in which the case has progressed at the time application is made and the manner in which it may proceed in the future (see Worldwide Enterprises at [41]); financial considerations which would inhibit a company from obtaining representation (noting the onus is on an applicant seeking to dispense with the requirement of legal representation to provide evidence of financial incapacity: see Termi-Mesh at [13]); the ability of the representative to exercise the objectivity of a practitioner (see Pacific Air Freighters at 522); whether the matter can be conducted in an orderly manner without a solicitor (see Worldwide Enterprises at [34]); whether the lack of disciplinary measures in relation to the person seeking to represent the company will affect the administration of justice (see Pharm-a-Care at [20]-[21]; Damjanovic at [74]); whether the person seeking to represent the company is likely to be a principal witness in the trial particularly if credit is an issue (see Bay Marine at 113) and the effect, if any, that a grant of leave will have on the Court resources and the effect upon other litigants in the Court list (see Worldwide Enterprises at [35]). The predecessor Court to this Court also held that the objects and purposes of the governing legislation and rules relating to case management considerations should also be taken into account: Wong v Dong Lai Sun Massage [2016] FCCA 18 at [19]. That observation is consistent with what is set out in section 190 and 191 of the FCFCOA Act.CONSIDERATION Mr Kitanovski made brief submissions before the Court as to why leave should be granted to him to represent the Company. The substance of his submissions were contained within his affidavit of 9 September 2022. Mr Kitanovski contends that the issues are simple and clear-cut and the matter can be swiftly concluded with him running the case. On one view, the issue might be described as straightforward. The dispute between the parties arises because the Company claims the respondent declared a vehicle of a particular customer to have failed a ‘WOVI inspection’ and because the respondent then allegedly made various statements including that the failure was due to certain equipment supplied by the Company being ‘aftermarket’ or ‘non-genuine parts’. The dispute therefore appears confined to a single interaction with a customer and appears confined in time. This is not a case with a multiplicity of factual issues. Conversely, however, while the factual matrix of the case may be described as limited, the claims arising from the factual dispute are not straightforward. The claims advanced in the Statement of Claim are arguably complex and include claims for misleading and deceptive conduct, injurious falsehood and defamation. The pursuit of such claims, whatever their basis in fact, in my experience, is never simple or straightforward. That Mr Kitanovski may experience some difficulty in advancing these claims on behalf the Company can be seen from, among other things, an examination of the Statement of Claim which contains limited particulars in relation to various factual matters and Mr Kitanovski's difficulty in being able to address the elements of each cause of action being pursued by the Company.