Helmhout v Apostoloff

Case [2011] ACTSC 2


HUMAN RIGHTS ACT 2004 (ACT)

HELMHOUT v APOSTOLOFF & ORS;
DEMPSEY-FIDDES v COMMONWEALTH OF AUSTRALIA & ANOR;
REYNDERS v COMMONWEALTH OF AUSTRALIA & ANOR
[2011] ACTSC 2 (11 January 2011)

PRACTICE AND PROCEDURE – representation – whether agent can appear for a corporation – principles to be considered – employee of corporation seeking leave to appear – applicant not permitted to appear

PRACTICE AND PROCEDURE – representation – intervention as amicus curiae – principles to be considered – journalist seeking to address relevant issues not addressed by parties – applicant permitted to address the court

PRACTICE AND PROCEDURE – pleadings – particulars pleading facts not evidence – whether supply of evidence proper delivery of particulars – not appropriate delivery of particulars

Evidence Act 1995 (Cth)

Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 91
Human Rights Act 2004 (ACT), s 12
Legislation Act 2001 (ACT), s 144, Dictionary

Court Procedures Rules 2006 (ACT), rr 30, 406, 410, 433, 447, 2903, 6005, 6007, 6008, 6145, 6250

Attorney-General of Duchy of Lancaster v London and North Western Railway Co [1892] 3 Ch D 274
Wenlock v Maloney [1965] 2 All ER 871
O’Toole v Scott [1965] AC 939
Equitable Life Assurance Society v Cutter (1887) 4 WN (NSW) 60
Re Education Pty Ltd [1963] NSWR 1340
Federated Engine-Drivers and Firemen’s Association of Australasia and Ors v Broken Hill Pty Co Ltd and Ors (1913) 16 CLR 245
Hubbard Association of Scientologists International v Anderson and Anor [1972] VR 340
Molnar Engineering Pty Ltd v Burns (1984) 3 FCR 68
ACT General Cleaning Company Pty Ltd v Naoum (1996) 67 FCR 361
Commonwealth Bank of Australia v Individual Homes Pty Ltd (1994) 119 ACTR 1
Co-operative Property Development of Australia Ltd and Ors v Mount and Ors (1980) Tas R 7
Damjanovic v Maley (2002) 55 NSWLR 149
R v Pomeroy: The Herald and Weekly Times Intervening [2002] VSC 178
United States Tobacco Company v Minister for Consumer Affairs and Ors (1988) 20 FCR 520
Levy v State of Victoria and Ors (1997) 189 CLR 579
Hakimi v Legal Aid Commission (ACT) (2009) 227 FLR 462
Re Medical Assessment Panel;  Ex parte Symons (2003) 27 WAR 242
Wilson v Manna Hill Mining Company Pty Ltd [2004] FCA 1663
National Australia Bank v Hokit Pty Ltd and Ors (1996) 39 NSWLR 377
Breen v Williams (1994) 35 NSWLR 522
Lukatela v Apostoloff [2009] ACTSC 167
Lukatela v Birch (2008) 223 FLR 1
R v Xu(No. 1) (2005) 152 A Crim R 17
R v O’Grady [2000] NSWSC 1256
R v Elomar and Ors (No. 3) [2008] NSWSC 1443
Williams v Wilcox and Anor (1838) 8 Ad & E 314; 112 ER 857
Philipps v Philipps (1878) 4 QBD 127
Allianz Australia Insurances Ltd v Newcastle Formwork Constructions Pty Ltd [2007] NSWCA 144
Sims v Wran [1984] 1 NSWLR 317
Sportsbet Pty Ltd v State of New South Wales and Ors (No. 2) [2009] FCA 762
Dare v Pulham (1982) 148 CLR 658
Bailey and…

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Details
AGLC
Helmhout v Apostoloff [2011] ACTSC 2
Case
[2011] ACTSC 2
Decision Date

CaseChat Overview and Summary

Helmhout v Apostoloff involved a dispute where the primary issue was the legality of representation and intervention in the proceedings. The case was heard in the Supreme Court of Victoria. The plaintiff, Helmhout, sought to have Apostoloff, a former employee, held accountable for actions taken while employed. Apostoloff argued that Helmhout could not be represented by a non-employee, and a journalist sought to intervene as an amicus curiae to address issues not covered by the parties.

The court had to determine if Apostoloff could be legally represented by someone who was not an employee and if the journalist could properly intervene in the matter as an amicus curiae. The court also needed to decide whether the particulars supplied by Helmhout constituted an appropriate delivery of particulars. The principles guiding these decisions involved assessing the relevance and necessity of the proposed representations and interventions to the case, as well as the adequacy of the pleadings in line with procedural rules.

In its reasoning, the court found that Apostoloff could not be represented by someone who was not an employee, as this would contravene the rules of legal representation. The court permitted the journalist to intervene as an amicus curiae, as it believed the journalist's input would address issues not covered by the parties and thereby aid the court. Regarding the particulars, the court held that the evidence supplied by Helmhout did not constitute a proper delivery of particulars as it should have included facts, not evidence. Consequently, the court ordered specific amendments to the statement of claim and the return of the CCTV footage to the plaintiff. Each party was to bear their own costs for the application.

The final orders included abridgement of the time for service of the application, striking out a particular paragraph from the statement of claim, and mandating the return of annexed CCTV footage. Helmhout was required to file and serve an amended statement of claim within 14 days, and each party was to bear their own costs for the application.

Orders

Orders of the court

1. The time for service of the application in proceedings dated 24 December 2010 on the plaintiff be abridged to 24 December 2010.

2. Paragraph 18 of the statement of claim be struck out.

3. The copy of the CCTV footage referred to in that paragraph as annexed to the statement of claim be returned to the plaintiff forthwith.

4. The plaintiff file and serve an amended statement of claim in accordance with this order within 14 days.

5. Each party bear their own costs of the application.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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