Gupta v Singh (Ruling No 2)

[2022] VCC 805

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

DEFAMATION LIST

Case No. CI-21-03860

YOGESH GUPTA

First Plaintiff

and

TAX PLANNERS PTY LTD (ACN 124 732 805)

Second Plaintiff

v

PAL SINGH

and

AMEX AUSTRALIA PTY LTD (ACN 118 166 000)

First Defendant

Second Defendant

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JUDGE:	HER HONOUR JUDGE CLAYTON
WHERE HELD:	Melbourne
DATE OF HEARING:	31 May 2022
DATE OF RULING:	7 June 2022
CASE MAY BE CITED AS:	Gupta & Anor v Singh & Anor (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2022] VCC 805

RULING
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Subject:PRACTICE AND PROCEDURE

Catchwords:              Defamation – Application by non-solicitor for leave to represent company

Legislation Cited:      County Court Civil Procedure Rules 2018

Cases Cited:The Big Apple Group Pty Ltd v Melbourne City Council [2019] VSC 147; Worldwide Enterprises v Silberman [2009] VSC 165; (2010) 26 VR 595; Rossi Homes Pty Ltd v VCAT [2018] VSC 95

Ruling:  Application granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Stanarevic (solicitor)	Matrix Legal
For the Defendant	The first defendant appeared in person

HER HONOUR:

1The first defendant makes application by summons dated 30 April 2022 for leave pursuant to represent the second defendant, Amex Australia Pty Ltd.

2Pursuant to r 1.17 of the County CourtCivil Procedure Rules 2018 (‘the Rules’) a corporation shall not take any step in a proceeding save by a solicitor.

3In effect the application is to dispense with the operation of r 1.17 pursuant to r 2.04 of the Rules.

4In support of his application the first defendant relies on an affidavit dated 30 April 2022. 

5In that affidavit the first defendant deposes to the following:

(a)   he is the sole director and shareholder of the second defendant.

(b)   the second defendant stopped trading in May 2019 and has had no revenue for the financial year ending June 2021.

(c)   the second defendant has no liabilities as at 30 June 2021 and has current assets of $35.82.

6The first defendant submits that the appointment of a lawyer will not ‘optimise the timely outcome of the matter’.  He submits that the plaintiffs and defendants have been in previous legal proceedings arising from the same or similar background facts, though relating to different publications. 

7I understand that in the previous proceedings the first and second defendants were legally represented.  The first defendant says he is familiar with the relevant issues and is able to represent the second defendant in an appropriate manner, notwithstanding his lack of legal expertise.

8The plaintiffs neither consent to nor oppose the application.

9In The Big Apple Group Pty Ltd v Melbourne City Council[1]the Court considered an application under the equivalent rule in the Supreme Court of Victoria and noted that the rule is ‘based on considerations central to the proper administration of justice, and the position of the other party to the litigation.’

[1] [2019] VSC 147

10Pursuant to r 2.04 of the Rules, the Court may dispense with compliance with any of the requirements in the Rules, including r 1.17. In Worldwide Enterprises v Silberman[2] [2009] VSC 165, the following considerations were identified as informing the exercise of discretion by a Court to dispense with the rule:

(a)   the manner in which the case has progressed at the time that the application for dispensation is made;

(b)   the manner in which the case can proceed in the future without a solicitor;

(c)   the complexity of the issues involved in the case;

(d)   whether the lack of disciplinary measures in relation to the person seeking to represent the company will affect the administration of justice;

(e)   whether the case can be conducted in an orderly and responsible fashion without a solicitor;

(f)    whether there are financial considerations which would inhibit a company from obtaining legal representation;

(g)   the stage which the case has reached;

(h)   whether the defendant is likely to expend more funds in defending the claim absent a solicitor acting for the company; and

(i)    what effect, if any, permitting a company to appear without a solicitor will have on Court resources and, particularly, the effect upon other litigants in the Court list.

[2] [2009] VSC 165 (affirmed on appeal in (2010) 26 VR 595)

11In Rossi Homes Pty Ltd v VCAT[3], Associate Justice Derham said:

The financial considerations which inhibit a company from obtaining legal representation may be of particular importance in providing the reason for the application, as is apparent in this case. If that is the case, it is important that the company produce evidence of its financial capacity or lack of capacity and of those standing behind it, the effect of diverting company resources to paying legal expenses, the nature of the company’s undertaking, its financial structure, its ability to retain and pay its staff, and the identity and spread of stakeholders.[4]

[3] [2018] VSC 95

[4] Ibid at paragraph [9]

12In the present case there is no information from Mr Singh in relation to his personal financial circumstances or his capacity to retain a lawyer on behalf of the second defendant.

13However, Mr Singh does not rely on the financial incapacity of the second defendant to engage a lawyer, but rather on an argument that engaging a lawyer will not promote the just, timely, efficient and cost-effective disposition of the real issues in dispute.

14The claim has not yet progressed past pleadings.

15At present the plaintiffs’ claims as they relate to the second defendant stand struck out with a right to replead.  The general thrust of the claim against the second defendant is that it owed a duty or duties to the plaintiffs, which it breached, thereby causing loss.  These claims do not appear to involve any particularly complex questions of law. 

16Mr Singh is representing himself in relation to the claims against him in his individual capacity.  As a general proposition the Court is assisted by parties in a proceeding being legally represented.  However, as Mr Singh will continue to be unrepresented in his individual capacity, and as many of the claims made in the proceeding are made only against the first defendant and not the second defendant, the assistance afforded to the Court by the retention of lawyers for the second defendant may be reduced.  Similarly, it is unlikely that the plaintiffs will be required to expend significant additional costs in bringing their claims against an unrepresented second defendant, in circumstances where the first defendant will be unrepresented in any event.

17Mr Singh is well apprised of the factual background and the issues involved in this case.  I am satisfied that the case can proceed in an orderly and responsible fashion if Mr Singh represents the second defendant.

18There is no other shareholder in the second defendant who would be adversely affected by the outcome of a claim against the second defendant, or whose interests the Court needs to consider in the application.

19Accordingly, the application is granted and requirement that the second defendant only take leave by a solicitor is dispensed with.