Rossi Homes Pty Ltd v Dun and Bradstreet (Australia) Pty Ltd
[2018] VSC 314
•14 June 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
| AT MELBOURNE | |
| COMMON LAW DIVISION | |
| JUDICIAL REVIEW AND APPEALS LIST |
S CI 2018 00023
| ROSSI HOMES PTY LTD | Appellant |
| v | |
| VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL | First Respondent |
| DUN AND BRADSTREET (AUSTRALIA) PTY LTD | Second Respondent |
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JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 June 2018 |
DATE OF JUDGMENT: | 14 June 2018 |
CASE MAY BE CITED AS: | Rossi Homes Pty Ltd v Dun and Bradstreet (Australia) Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2018] VSC 314 |
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PRACTICE AND PROCEDURE — Representation of company in Supreme Court proceedings — Judicial review of VCAT order striking out and dismissing company’s claim — Decision of Associate Justice refusing company leave to be represented by a director — Appeal — No error — Supreme Court (General Civil Procedure) Rules 2015 rr 1.17, 2.04.
HUMAN RIGHTS — Legal representation required for company — No human right of company infringed — Australian Human Rights Commission Act 1986 (Cth); Charter of Human Rights and Responsibilities Act 2006 ss 3(1), 6(1).
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr G Rossi (application to appear as director of appellant) | |
| For the Second Respondent | Mr T Lloyd | Trevor Lloyd |
HIS HONOUR:
This is an appeal from an order of an Associate Justice that:
1.Mr Giuseppe Rossi’s application to represent the plaintiff in the proceeding is refused.
2.The legal costs of the second defendant of resisting the application be paid by the plaintiff.[1]
[1]Rossi Homes Pty Ltd v Victorian Civil and Administrative Tribunal & Anor [2018] VSC 95 (Derham AsJ).
The appellant company had claimed damages against the second respondent in the Victorian Civil and Administrative Tribunal (‘VCAT’) for debt collection practices. The Member struck out some of the claims for want of jurisdiction and dismissed other claims.[2] The company commenced judicial review proceedings seeking to review the VCAT order. As part of the judicial review proceeding, Mr G Rossi sought leave to represent the company, having represented it in VCAT.
[2]Rossi Homes Pty Ltd v Dun and Bradstreet (Australia) Pty Ltd (Civil Claims) [2017] VCAT 1839 (Member O. Mahoney).
The application was made on the basis that Mr Rossi was a director of the appellant company, Rossi Homes Pty Ltd.
The appeal involves the application of r 1.17(1) of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’) which states:
Except where otherwise provided by or under any Act or these Rules, a corporation, whether or not a party, shall not take any step in a proceeding save by a solicitor.
This rule allows for an exception where an Act or the Rules so provides, therefore r 2.04 is relevant and must be considered. Rule 2.04 provides that:
The Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises.
The Victorian Court of Appeal considered the operation of the r 2.04 discretion on r 1.17 in Wordwide Enterprises Pty Ltd v Silberman.[3] In that decision, the Court listed various matters relevant to the exercise of the discretion to dispense with the requirements of r 1.17.
[3](2010) 26 VR 595.
The Associate Justice was empowered with a discretion to dispense with the rule preventing Mr Rossi from representing the appellant, however, decided not to do so. In making this decision, the Associate Justice expressly acknowledged and applied the Worldwide Enterprises factors to the appellant’s case.
I permitted Mr Rossi to make submissions in support of the company’s application. His first oral submission was that the reference to ‘any Act’ in r 1.17(1) included the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’). By s 62(3) of that Act, a director of a company may appear in VCAT to represent it.
In my opinion, the VCAT Act is not intended to be included in the words ‘any Act’ within the meaning of that term in r 1.17(1). The VCAT Act deals with procedure in the VCAT and does not deal with the right of appearance in the Supreme Court. The Supreme Court (General Civil Procedure) Rules 2015 deal with the right of appearance in this Court. There is no other Act that gives a director the right to represent a company in this Court.
As the Associate Justice stated:
Pursuant to r 1.17(1) the starting point must be that a company will not usually be permitted to appear without a legal representative.
The Associate Justice noted that Mr Rossi did not provide evidence that he had express authority of the company to act on its behalf. He noted that the suggestion that the company’s financial position prevented legal representation was not supported by any substantive evidence, such as accounting statements that established that Rossi Homes is in financial difficulty.
The Associate Justice stated that:
Mr Rossi’s conflation of his human rights with the rights of the defendant company and his confused and misconceived exposition of human rights and anti-discrimination law serve to show that Mr Rossi is not capable of conducting the case in an orderly and responsible fashion.
His Honour also noted that judicial review proceedings are complex and that the proceeding was still in its early stages. Noting that the Court had obligations both to the plaintiff and to the defendant, he concluded his decision by stating:
On the evidence before me I am not persuaded that the circumstances of this case warrant departing from the rule that the company will not be permitted to appear without a legal representative. The inherent complexity of a judicial review application and the significant challenges that Mr Rossi would face in prosecuting the proceeding, combined with the substantially increased burden of the court and the defendant if he were given leave to do so, militate against the grant of leave in this case.
His Honour exercised a discretion in making that decision. None of the grounds of appeal identifies any error in the exercise of that discretion.[4]
[4]House v The King (1936) 55 CLR 499.
The notice of appeal contains approximately 25 grounds (some are not numbered sequentially) but none of them, except the one mentioned above concerning the meaning of the words ‘any Act’ in r 1.17 and the ground concerning the question of costs, which is dealt with below, was developed in oral submissions. Many of them can be grouped together – many of them fail to distinguish between the right of a party to have access to the Court, which is undoubted and the right of a company to be represented by a director, which is quite a different thing. I will deal briefly with the categories of appeal grounds.
Grounds 1, 7, 11, 14 and 23 allege that that the Associate Justice failed to apply sections 5 and 109 of the Commonwealth Constitution, but that has no bearing on the right of a company to be represented by a director in Supreme Court proceedings.
Grounds 2, 7 and 23 refer to the Charter of Human Rights and Responsibilities Act 2006, but as his Honour explained, the Charter does not confer human rights on a company. Section 6(1) of the Charter expressly stipulates that ‘only persons have human rights’. Section 3(1) defines the term ‘person’ to mean ‘a human being’. The appellant company is not given human rights under the Charter. However, the appellant did not point to any other human rights source for the rights upon which it relies.
Grounds 3 and 5 refer to the definition of ‘person’ in the Commonwealth Acts Interpretation Act 1901, but that has no bearing on r. 1.17. Grounds 4, 5, 8, 9, 10 and 11 rely on the Commonwealth Australian Human Rights Commission Act 1986, which also has no bearing on the interpretation of or validity of r 1.17. Ground 6 relies on the principle of legality, but that has no bearing on who can represent a company in proceedings in the Supreme Court, because the company is entitled to be represented by a legal practitioner.
There is no right of a director to represent a company in the Supreme Court unless the Court gives leave, and therefore r 1.17 does not interfere with any such right (Grounds 5 and 6).
Many of the grounds (grounds 11, 12, 13, 14, 19, 20, 21, 22 and 24) refer to the International Covenant on Civil and Political Rights (‘Covenant’), the Universal Declaration of Human Rights (‘Declaration’), and the right to representation. None of those grounds are made out. No authority was referred to supporting the proposition that a corporation has any rights under the Covenant or the Declaration of present relevance. Under Victorian law as well as under the law in many other analogous jurisdictions, a company has the right to be represented in court, but only through a legally qualified representative.
Another ground states that a court of law has no power to give effect ‘to any but rights recognized by law’. However, there is no law that gives a director a right to represent a company in Supreme Court proceedings. Parliament has conferred that right on directors of a company in proceedings in VCAT, but has not done so in proceedings in the Supreme Court.
The suggestion in ground 15 that his Honour had invalidly revised his judgment has no substance.
Ground 17 asserts that Associate Judges lack judicial power due to their tenure not complying with s 72 of the Commonwealth Constitution. There is no substance in this submission as Associate Judges are appointed under s 104 of the Supreme Court Act 1986 and have authority to exercise judicial power. They are unaffected by the provisions of s 72 of the Commonwealth Constitution which deal only with the tenure of High Court Justices and Judges of Courts created by the Commonwealth Parliament.
Ground 18 contains no separate allegation of error.
Ground 25 relies on the VCAT Act having been enacted in 1998, before the Court Rules, including r 1.17, were enacted in 2015. This ground has no substance as the VCAT Act has no bearing on the right of appearance in the Supreme Court and r 1.17 governs that right.
For those reasons no error has been shown in the Associate Justice’s exercise of discretion.
Costs
At the hearing, Mr Rossi sought an order setting aside the Associate Justice’s award of costs in favour of the second respondent. This appears to be the subject of ground 16.
Mr Rossi submitted that the award of costs was a ‘miscarriage of justice’ as the second respondent was represented at the hearing by a salaried solicitor who was an employee of the company. This submission cannot succeed because the general position is that the costs of employee solicitors shall not be treated any differently to the costs of independent solicitors.
The Full Court of the Supreme Court of Victoria considered the question in Blackall v Trotter (No 1).[5] The Court rejected the contention that the costs of a Crown-employed solicitor’s work could not be recovered on the basis that the Crown was not liable to pay his costs. The Court made it clear that this position was not limited to Crown-employed solicitors and extended to private sector in-house lawyers.[6] In 2005, the Court’s decision was followed by the Court of Appeal in Maher v Commonwealth Bank of Australia[7], which stated:
In Blackall v Trotter, the Full Court of the Supreme Court of Victoria rejected the view that costs would not be awarded to a successful party if that party were not liable for costs because it was represented by an employee or a person it was otherwise not obliged to pay.[8] (Citations omitted)
[5][1969] VR 939 (Winneke CJ, Little and Menhennitt JJ).
[6]Ibid 942.
[7][2008] VSCA 122 (Redlich, Dodds-Streeton JJA).
[8]Ibid [99].
This proposition has also been expressly endorsed by the New South Wales Supreme Court,[9] and the Full Court of the Federal Court of Australia.[10]
[9]Dyktynski v BHP Titanium Minerals Pty Ltd (2004) 60 NSWLR 203, [100] (McColl JA); Commonwealth Bank of Australia v Hattersley (2001) 51 NSWLR 333, [11], [20]-[21] (Davies AJ).
[10]Ly v Jenkins [2001] FCA 1640, [160] (Moore, Sackville and Kiefel JJ).
The Associate Justice was authorised by rule 63 of the Supreme Court (General Civil Procedure) Rules and the Supreme Court Act 1986 to exercise a discretion in the awarding of costs in this proceeding. This discretion cannot be overturned on appeal except where the discretion was erroneously exercised. Mr Rossi’s sole ground for impugning the award of costs in favour of the second respondent was that it was a miscarriage of justice due to the solicitor being its salaried employee.
The authorities are clear on this point. The awarding of costs for the work of solicitors should not be treated any differently when that solicitor is a salaried employee of a party. This principle recognizes the right of legal professionals to practice law in various ways, including as in-house lawyers for corporate and government entities.[11] Therefore, Mr Rossi’s challenge to the awarding of costs in favour of the second respondent cannot succeed.
[11]See Commonwealth Bank of Australia v Hattersley (2001) 51 NSWLR 333, [20]-[21] (Davies AJ).
Conclusion
The appeal is dismissed. The judicial review proceeding will be referred to a Judicial Registrar for directions.
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