Refaat v Barry

[2014] VCC 2

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted

AT MELBOURNE

COMMERCIAL LIST - GENERAL CASES DIVISION

Case No. CI-12-02108

SAMEH REFAAT	Plaintiff
v.
MICHAEL BARRY	Defendant

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JUDGE:	His Honour Judge Anderson
WHERE HELD:	Melbourne
DATE OF HEARING:	23 January 2014
DATE OF JUDGMENT:	23 January 2014 (revised 24 January 2014)
CASE MAY BE CITED AS:	Refaat v. Barry
MEDIUM NEUTRAL CITATION:	[2014] VCC 2

REASONS FOR JUDGMENT

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Catchwords:              Practice and procedure – Plaintiff’s application to add a second plaintiff – Proposed claim by added plainitff not articulated – No explanation given for lateness of application – Trial fixed to commence on 5 February 2014 – Plaintiff representing himself and proposing to represent the added plaintiff – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr S. Refaat in person
For the Defendant	Mr J. Wilkinson	Brendan Hardiman & Associates

HIS HONOUR:

1The plaintiff, Dr Refaat, represents himself in the proceeding. He seeks leave to join the company Simplex Factory Automation Pty Ltd (“Simplex”) as a plaintiff to the proceeding. Dr Refaat is the sole director of Simplex.

2The proceeding was commenced by writ filed 7 May 2012. The writ was issued by Dr Refaat, although subsequently, he has for different periods of time been represented by three sets of solicitors. The proceeding was fixed for trial on 5 February 2014 with an estimate of 5 sitting days by order of His Honour Judge Lacava made 18 July 2013.

3The present application was foreshadowed by an email to the Directions Group on 12 December 2013. The application was processed on 7 January 2014 and an order made on 13 January 2014 listing Dr Refaat’s application for a directions hearing today and alerting him to the need for Simplex, if added as a plaintiff, to be represented by solicitors unless the leave of the Court were obtained for the added plaintiff to be represented by some other person.

4Dr Refaat has filed a further affidavit in which he has sought to address each of the matters set out by the Court of Appeal in Worldwide Enterprises Pty Ltd v Silberman [2010] VSCA 17, as the requirements for an order granting leave for a corporation to be represented otherwise than by solicitors. In Dr Refaat’s most recent affidavit sworn 16 January 2014, he stated, “I am not attempting to change my statement of claim after adding the company as a co-plaintiff”.

5In discussion with Dr Refaat, I suggested that he address the following issues:

a.the fact that the Court would not ordinarily add a party to the proceeding without a clear articulation, in a draft amended pleading, of the claim proposed to be made by the added party;

b.whether it would be appropriate to join a corporation as a plaintiff where Dr Refaat, as the present plaintiff, was seeking leave to represent the company in the proceeding;

c.whether the application was appropriate in circumstances where no explanation had been given for the delay in making the application or the reason the application was made shortly prior to the trial date of 5 February 2014;

d.whether the defendant would be entitled to an order for security for its costs of the proceeding, if a corporation without significant assets were added as a plaintiff.

6Dr Refaat submitted that, although he was not proposing to file an amended statement of claim, both the present statement of claim dated 14 November 2012 and the defence and counterclaim dated 19 December 2012, referred specifically to Simplex in a number of places. The application was stood down for some time to permit Dr Refaat to further examine the pleadings so that he could identify the specific paragraphs. He referred to the following paragraphs:

a.paragraph 41 refers to a quotation emailed to the defendant on 26 August 2011. Dr Refaat informed me that the quotation was sent by Simplex rather than in his name, although that fact is not referred to in the pleading;

b.in paragraph 29 of the statement of claim there is reference to exclusive access to the Bayswater area being verbally granted by the plaintiff. Dr Refaat asserted that access could only be granted by Simplex, although that fact is not referred to in the statement of claim;

c.in paragraphs 15 and 16 of the counterclaim there is a claim by the defendant for monies had and received and seeking the return of the sum of $33,000 “paid by the plaintiff to counterclaim [the defendant] to Simplex”. It is clear, however, that the claim is made against Dr Refaat, as the defendant to counterclaim. The pleading in paragraph 16 states, “the defendant to counterclaim, alternatively Simplex, has had and received this sum (via his company Simplex) for his own use”. The additional words in the paragraph, “alternatively Simplex”, are confusing and perhaps unnecessary;

d.paragraph 25(c) of the counterclaim refers to the parties discussing the fact that Simplex “had not issued tax invoices for the machine to the plaintiff to counterclaim and therefore he could not claim back GST from his payments and Simplex was to issue tax invoices”. The counterclaim appears to make this allegation in the context of an agreement between the present parties to the litigation and without asserting that the relationship between those parties was affected by the fact that Simplex was involved.

7In paragraph 16 of the statement of claim, it was asserted that “both parties signed an agreement”, ie. the plaintiff and the defendant. This paragraph is admitted in the defence. It is not asserted that the agreement was not with Dr Refaat, but with Simplex. There are other agreements alleged in the statement of claim. The defence does not deny those agreements were between the plaintiff and the defendant. The defence does not attempt to assert that any agreement was between the defendant and Simplex.

8Dr Refaat has interrupted the delivery of these reasons to inform me that he has found three further references to Simplex in the counterclaim:

a.paragraph 30 refers to the agreement of the parties (ie. the plaintiff and the defendant) that the “plaintiff to counterclaim would make monthly payments of $8,800 to Simplex over a period of 24 months”;

b.in paragraph 32, it is alleged that between January 2010 and August 2011 “the plaintiff to counterclaim made $26,400 in payments to Simplex”;

c.the particulars to paragraph 37 refer to “a letter to Simplex dated 13 September 2011” which is said to partly evidence “the Personal Loan 2 Agreement”. That agreement is defined in paragraph 36 as an agreement whereby, the plaintiff by counterclaim loaned the defendant by counterclaim $25,000.

9Dr Refaat raised the possibility that if Simplex were added as a plaintiff and the trial proceeded that solicitors could be engaged to represent the company on the basis that a barrister attended the trial for only one of the foreshadowed 5 days of hearing to do all that was necessary during that day to represent the interests of that company.

10This proposal is probably unworkable because of the nature of the trial process and, so far as can be understood from Mr Refaat’s submissions to the Court, the allegations involving Simplex would be put in the alternative to the allegations of agreements entered into with himself. It is difficult without a proper articulation of the claim proposed to be made by Simplex to determine any other basis upon which Simplex might recover the costs of obtaining finance which are said to be claimed on the basis of the defendant’s repudiation of the relevant agreements.

11I do not consider that the present application can succeed in the absence of a properly formulated further amended statement of claim that sets out precisely how the claim is proposed by Simplex against the defendant. Dr Refaat has, from the bar table, informed me that he considers Simplex is an essential party to the proceeding because payments were made to it by the defendant. Also, the company borrowed money and incurred financing costs which are part of the losses which it is desired to claim as a consequence of the defendant’s repudiation of the agreements pleaded.

12I consider however, that without these matters being put in the context of a proposed pleading, it is difficult to assess whether Simplex has a claim against the defendant and therefore whether it would be appropriate to join that party as a plaintiff. It seems that Dr Refaat has regarded the application as a formality, in the sense that he did not regard it as a matter which might in any way affect the position of the defendant. It appears that for this reason he considered it unnecessary for the statement of claim to be further amended or that any explanation was necessary for the delay in making the application, particularly with the imminent commencement of the trial. 

13Although Dr Refaat is the sole director of Simplex, there is little further material to persuade the Court that it would be appropriate for Simplex, if joined as a party in the proceeding, to be represented by Dr Refaat. The proceeding has been on foot for almost 2 years. It is complex litigation. The interlocutory steps in the proceeding have not proceeded smoothly which appears largely to be due to the inability of Dr Refaat to understand the obligations of a self represented litigant. These obligations are substantial and in complex commercial litigation of this sort it is very difficult for a party who is self represented to understand the legal and procedural issues involved. It seems clear that if leave were granted to add Simplex as a party, that the statement of claim would need to be amended, the trail date would need to be vacated and it is likely that an application for security for costs would be made by the defendant, as has been foreshadowed as a possibility by the defendant’s solicitors.

14In the circumstances, the future course of the litigation cannot be fully appreciated at this time, although it is obvious that considerable further expense and delay would result. The defendant’s solicitors complain that during the proceeding, the plaintiff has not fully understood his responsibilities in relation to discovery or in making available for inspection the machinery the subject of the dispute. These matters have been the subject of interlocutory hearings. Although the Rules require the filing of the written agreement of the proposed plaintiff to be joined as a party, this has not been done. No doubt it could be done, as the sole director of Simplex is Dr Refaat. However, it is another example of the difficulties Dr Refaat faces seeking to represent himself in the litigation, let alone a further party.

15I propose to dismiss the application. If Dr Refaat considers it appropriate to renew the application at  a later date, perhaps before the trial judge as he has mentioned in discussions in the course of the application, there are a number of matters he would need to attend to before he contemplates taking that step.

16The orders I propose are as follows:

a.the plaintiff’s application to join Simplex Factory Automation Pty Ltd as a plaintiff to the proceeding is dismissed.

b.the plaintiff must pay the defendant’s costs of the application to be assessed by the Costs Court in default of agreement.

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Certificate

I certify that these 5 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 23 January 2014 (and revised on 24 January 2014).

Dated:       24 January 2014

Philippa Gilkes 

Associate to His Honour Judge Anderson