Hoser v Pelley [No 2] - [2023] VSCA 14

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hoser v Pelley [No 2]

Details

AGLC: Hoser v Pelley [No 2] [2023] VSCA 14
Case: [2023] VSCA 14
Decision Date: 7 February 2023

CaseChat Overview and Summary

The case of Hoser v Pelley [No 2] involved an application by Hoser, who appeared in person, seeking leave to represent a company, the co-applicant, on an application for leave to appeal. The case was heard in the Supreme Court, where the applicant was seeking to deviate from the usual requirement that companies be represented by a solicitor when applying for leave to appeal. The dispute centred on whether the court had the discretion to allow a self-represented litigant to act on behalf of a company in such circumstances.

The primary legal issue before the court was whether it could exercise its discretion under the Supreme Court (General Civil Procedure) Rules 2015 to permit Hoser to represent the company on the application for leave to appeal. This issue involved interpreting the rules and determining whether an exception could be made given the specific circumstances of the case. The court needed to balance the general requirement for companies to be represented by a solicitor with the discretion to allow exceptions in appropriate cases.

The court found that the general requirement for companies to be represented by a solicitor when applying for leave to appeal could be departed from in appropriate circumstances. The court referenced the decision in Worldwide Enterprises Pty Ltd v Silberman, which supported the idea that the court could exercise its discretion to allow a self-represented litigant to act on behalf of a company if it deemed it appropriate. The court concluded that the application should be allowed, as the circumstances justified a departure from the usual rule.

The final orders of the court allowed Hoser to represent the company on the application for leave to appeal, recognising the discretion available under the relevant procedural rules.

Orders