Hoser v Pelley [No 2]
[2023] VSCA 14
•7 February 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2022 0031 |
| RAYMOND HOSER | First Applicant |
| KOTABI PTY LTD (ACN 007 395 048) | Second Applicant |
| v | |
| MARK DAVID PELLEY [NO 2] | Respondent |
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| JUDGES: | McLEISH and WALKER JJA and ELLIOTT AJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7 February 2023 |
| DATE OF RULING: | 7 February 2023 |
| DATE OF REASONS: | 9 February 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 14 |
| JUDGMENT APPEALED FROM: | [2021] VCC 1425 (Judge Smith) |
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PRACTICE AND PROCEDURE – Application by self-represented applicant for leave to represent co-applicant company on application for leave to appeal – General requirement companies be represented by a solicitor – Power to depart from requirement in appropriate case – Application allowed.
Supreme Court (General Civil Procedure) Rules 2015, rr 1.17(1), 2.04(1).
Worldwide Enterprises Pty Ltd v Silberman (2010) 26 VR 595, applied.
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| Counsel | |||
| First Applicant: | In person | ||
| Second Applicant: | Mr R Hoser | ||
| Respondent: | Mr Z Petric | ||
Solicitors | |||
| Applicants: | -- | ||
| Respondent: | Ian Robertson Legal | ||
MCLEISH JA
WALKER JA
ELLIOTT AJA:
Introduction
The first applicant, Raymond Hoser (‘Hoser’), is self-represented. He applies to act and appear on behalf of the second applicant, Kotabi Pty Ltd (‘Kotabi’), at the hearing of the application by both applicants[1] for leave to appeal from a judgment of Judge Smith of the County Court of Victoria delivered on 3 February 2022.[2] Both applicants, as defendants at first instance, are the subject of a substantial award of damages in relation to numerous defamation claims.
[1]Noting that the application for leave to appeal was only filed by Hoser.
[2]Pelley v KotabiPty Ltd [2021] VCC 1425.
For many years, Hoser has been a professional snake catcher. Hoser is and was at all material times the sole director, secretary and shareholder of Kotabi. Kotabi owns and operates the business through which Hoser engages in catching and removing snakes, training dogs to avoid snakes, and staging demonstrations at schools and children’s parties.
The respondent, Mark Pelley (‘Pelley’), has conducted his business in competition with Hoser since at least 2017.[3]
[3]For a more detailed account of the background, see Hoser v Pelley [2023] VSCA 1, [1]–[9] (Emerton P and J Forrest AJA).
Hoser has filed an affidavit in support. Hoser has deposed that he sought representation for himself and Kotabi from a pro bono scheme, but was unsuccessful. Leaving aside the reasons given for the lack of funds, he also deposed that both he and Kotabi lack funds to pay for a lawyer to appear on their behalf.
Orders have been made in preparation for the hearing of this application for leave to appeal on a number of occasions.
On 14 July 2022, Hoser sought leave to file his application for leave to appeal out of time. Hoser was granted leave to represent Kotabi on that occasion. Leave as sought was granted, together with a stay of the primary judgment. In addition, it was ordered that Kotabi be removed as a respondent and added as the second applicant. The Court itself raised the issue as to whether Kotabi had been mistakenly joined as a respondent. Hoser explained that he was not a lawyer and that he was unsure as to whether Kotabi ought to have been an applicant or a respondent. In response to the suggestion that Kotabi be joined as an applicant and that Hoser be granted limited leave to represent the company at the hearing, counsel for Pelley stated that Hoser and Kotabi were ‘one and the same’. It was also stated that, relevantly, the interrelationship between the applicants was such that they could not be distinguished.
On 18 January 2023, orders were made refusing Pelley’s belated application for security for costs.[4] Again, Hoser was granted leave (for the purposes of that hearing only) to represent Kotabi.
[4]Ibid [44].
The application for Hoser to represent Kotabi is not opposed by Pelley. However, it remains a matter for the Court to determine whether it is appropriate for leave to be granted.
Principles
Rule 1.17(1) of the Supreme Court (General Civil Procedure) Rules 2015 provides that, except where otherwise provided by or under any Act or the Rules, a corporation, whether or not a party, shall not take any step in a proceeding save by a solicitor. However, r 2.04(1) allows the Court to dispense with any requirement in the Rules.
The principles applicable to the decision whether to dispense with the rule have been conveniently summarised as follows:[5]
[5]Worldwide Enterprises Pty Ltd v Silberman [2009] VSC 165, [20] (J Forrest J), quoted in Worldwide Enterprises Pty Ltd v Silberman (2010) 26 VR 595, 602 [39]–[41] (Weinberg JA, Bongiorno JA agreeing at 607 [74]) (‘Worldwide Enterprises’). See also Ilford Tower Pty Ltd v Equity One Mortgage Fund Ltd (2014) 306 ALR 144, 147–8 [17] (Warren CJ, Tate JA and Sifris AJA); [2014] VSCA 16 (‘Ilford Tower’).
(a)… [U]sually a company will not be permitted to appear without a legal representative. However, the rule is not absolute.
(b)Where such circumstances warrant it, a company may be permitted to ‘take a step’ without being represented by a legally qualified person.
(c)The following matters are relevant to determining whether such circumstances have been shown:
(i)The manner in which the case has progressed at the time that the application is made.
(ii)The manner in which the case can proceed in the future without a solicitor.
(iii)The complexity of the issues involved in the case.
(iv)Whether the lack of disciplinary measures in relation to the person seeking to represent the company will affect the administration of justice.
(v)Whether the case can be conducted in an orderly and responsible fashion without a solicitor.
(vi)Whether there are financial considerations which would inhibit a company from obtaining legal representation.
(vii)The stage which the case has reached.
(viii)Whether the defendant is likely to expend more funds in defending the claim absent a solicitor acting for the company.
(ix)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.
The rationale for restricting the ability of a company to appear without a legal representative relates to the proper, efficient and timely administration of justice and the protection of the interests of the parties to the litigation, including the relevant company itself.[6] An applicant bears the onus in persuading a court that it is appropriate for a company to ‘take a step’ without a solicitor.[7]
[6]Ilford Tower (2014) 306 ALR 144, 146–7 [12] (Warren CJ, Tate JA and Sifris AJA), quoting Scotts Head Developments Pty Ltd v Pallisar Pty Ltd [1994] NSWCA 281.
[7]Worldwide Enterprises (2010) 26 VR 595, 604 [55] (Weinberg JA, Bongiorno JA agreeing at 607 [74]).
Ruling
There are a number of factors that indicate leave ought to be granted to Hoser to represent Kotabi on their application for leave to appeal. Although this case is complex (there are in the order of 20 proposed grounds of appeal concerned with extensive facts and legal issues) and the Court will not have the assistance of a legally qualified advocate to present the case on behalf of Kotabi, the same situation already exists in relation to Hoser’s application. Equally, there are no grounds for leave to appeal which are unique to Kotabi. Thus, the manner in which the case is likely to proceed without a legal representative for Kotabi will not be materially different from the position if leave were refused to Hoser to so appear. It also follows that Pelley is not likely to be exposed to any additional inconvenience or expense if leave is granted.
Further, a review of the pleadings in the proceeding, together with the manner in which the case has been conducted, indicates that there is no possible conflict that might arise between the interests of Hoser and Kotabi. In short, as part of Hoser’s case with respect to each publication remaining in issue, he has maintained that he was the publisher and not Kotabi. Accordingly, on the application for leave to appeal, the position to be advanced on behalf of both Hoser in his own right and also on behalf of Kotabi does not give rise to a situation where Hoser might seek to prefer his own interests to those of Kotabi. Furthermore, given the lack of funding or pro bono assistance, if leave were refused it would effectively result in Kotabi being unable to be represented at all.
For the reasons stated, at the commencement of the hearing we made an order granting leave to Hoser to appear on behalf of Kotabi. The Court is acting consistently with how this Court has treated the issue previously.[8]
[8]See [6]–[7] above.
A further matter
For completeness, a proposed ground raised on the application for leave to appeal is that the primary judge erred at a directions hearing on 21 May 2019 in refusing leave for Hoser to appear on behalf of Kotabi. This ruling, in relation to the present application, is not to be taken as expressing any view about the correctness or otherwise of the decision or decisions made at first instance on this issue.
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