Rossi Homes Pty Ltd v Victorian Civil and Administrative Tribunal
[2018] VSC 95
•5 March 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 | Plaintiff |
| v | |
| VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL | First Defendant |
| DUN AND BRADSTREET (AUSTRALIA) PTY LTD | Second Defendant |
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JUDGE: | DERHAM AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 March 2018 |
DATE OF JUDGMENT: | 5 March 2018 |
CASE MAY BE CITED AS: | Rossi Homes Pty Ltd v Victorian Civil and Administrative Tribunal & Anor |
MEDIUM NEUTRAL CITATION: | [2018] VSC 95 First revision: 29 March 2018 |
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PRACTICE AND PROCEDURE – Application by non-solicitor for leave to represent company – Supreme Court (General Civil Procedure) Rules 2015, r 1.17(1) – Leave to appear for company refused – Worldwide Enterprises Pty Ltd v Silberman (2010) 26 VR 595.
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APPEARANCES: | Counsel | Solicitors |
| Mr Rossi appeared on behalf of the Plaintiff | ||
| For the Second Defendant | Mr T Daley | In house Counsel of the Second Defendant |
TABLE OF CONTENTS
Background......................................................................................................................................... 1
Relevant law........................................................................................................................................ 2
Submissions........................................................................................................................................ 5
Analysis.............................................................................................................................................. 10
Financial position of the company........................................................................................... 10
Conduct of the case to date........................................................................................................ 11
Future conduct of the claim....................................................................................................... 14
Impact on the Court and defendants........................................................................................ 15
Conclusion......................................................................................................................................... 16
HIS HONOUR:
This is an application by a director of the plaintiff (‘Mr Rossi’) to represent the plaintiff, Rossi Homes Pty Ltd (‘Rossi Homes’ or the ‘plaintiff company’). Rossi Homes is a building company and Mr Rossi appears to be the sole director and sole shareholder of the plaintiff company.[1]
[1]As described in [16] below, very limited evidence was placed before the Court pertaining to Mr Rossi’s role with the company.
Background
The plaintiff company applies, pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’), for judicial review of a decision of the Victorian Civil and Administrative Tribunal (‘VCAT’ or the ‘Tribunal’). The factual background to the judicial review is outlined in the reasons of Tribunal Member Mahoney delivered on 17 November 2017 (‘VCAT decision’).[2] In summary, Rossi Homes had a dispute with one of its suppliers in late 2016 over a debt the supplier claimed was owed. The supplier engaged the second defendant (‘D & B’) to pursue the debt against Rossi Homes. D & B contacted Rossi Homes for payment of the debt and also listed the debt as unpaid on a commercial credit report. The commercial credit report was later accessed by third parties, including Rossi Homes’ insurer. It was alleged by Rossi Homes that this listing lead ultimately to a loss of insurance coverage and, in turn, the suspension of Mr Rossi’s registration as a building practitioner. Rossi Homes alleges the credit report was also accessed by suppliers of Rossi Homes which varied their terms of supply.
[2]Rossi Homes Pty Ltd v Dun and Bradstreet (Australia) Pty Ltd (Civil Claims) [2017] VCAT 1839.
Rossi Homes seems to apply to quash the decision of the Tribunal for a failure to afford it procedural fairness, allowing D & B to be legally represented and failing to take into account Mr Rossi’s inalienable right to subsistence under the Australian Human Rights Commission Act 1986 (Cth) (‘AHRCA’), Schedule 2, Article 1(2).
In light of the way the application was presented it is appropriate to re-iterate, if only for the plaintiff’s benefit, that a registered company is a separate legal entity, distinct from its shareholders and directors. A company’s status as a legal entity is a creature of the law.[3] Similarly, the law has imbued the company with rights and obligations. One of those rights is that a creditor’s recourse will, generally, be limited to the assets of the company, as distinct from the assets of the individuals who stand behind it. However, whilst ‘incorporation confers many benefits on those connected with a company, it also imposes some burdens, one of which is that, in litigation, a company must normally be represented by a lawyer’.[4]
[3]See Salomon v Salomon & Co [1897] AC 22.
[4]Worldwide Enterprises Pty Ltd v Silberman (2010) 26 VR 595.
Relevant law
Rule 1.17(1) of the Rules provides that:
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 is a restatement of the common law position. It is a matter of practice and procedure. This Court, as a superior court of record, has a discretion to determine who will be allowed to appear before it. The Court has, however, a long established general rule that it will not allow an appearance by a person who has not been admitted to practice before it.[5] The rule is expressed to be subject to other provisions of the Rules, which necessarily includes r 2.04, which, by its terms, enables a court to dispense with compliance with the requirements of the Rules. It is not uncommon for limited leave to be given for a director to represent a company where, for example, the matters to be addressed are straight forward, such as where directions for the conduct of a proceeding are made, as was the case when Mr Rossi appeared before Clayton JR on 14 February 2018 and the determination of his application under r 1.17 of the Rules was referred for separate determination.
[5]Scotts Head Developments Pty Ltd v Pallisar Pty Ltd (Unreported, New South Wales Court of Appeal, 6 September 1994, Mahoney AP, Powell JA, O’Keefe AJA) BC9402965 (‘Scotts Head Developments’); Worldwide Enterprises Pty Ltd v Silberman [2009] VSC 165 [16] (J Forrest J) (‘Worldwide Enterprises’).
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. It will require leave to do so.[6] In Scotts Head Developments,[7] Mahoney AP explained the reasons behind the rule:
The rule of practice which the Court has adopted whereby appearance is limited to persons admitted to practise before the Court is not based on technicalities. It has long been regarded as based on considerations central to the proper administration of justice and the protection of the parties in the litigation. First, the Court has emphasised the importance, for the administration of justice, of the fact, that those permitted to appear before it owe a responsibility to the Court to ensure that the Court is properly informed and not misled: see Meek v Fleming (1961) 2 QB 366 . In Ex parte Browne: at 597; Pring J referred to the importance of having, as the party before the Court, a person “who was responsible to the Court, responsible to his client and responsible to the other party to the litigation”. See also Ex parte WA Grubb Pty Ltd Re Johnstone at 226, Tritonia Ltd v Equity and Law Life Assurance Society.
Second, the Court has regard to the possibility of unqualified or untrained advocates interfering with the course of a proceeding before the Court and causing loss to the parties involved. Reference was made to considerations of this kind in Hubbard Association of Scientologists International v Anderson and in Abse v Smith . Experience has shown that a proceeding conducted by a person unskilled in advocacy tends to last longer and to cost more. In determining whether to allow such an advocate to appear, the Court must have regard not merely to the position of the party for whom he seeks to appear, but also to that of the other party. The interest of the defendant in having the proceeding dealt with without unnecessary delay and cost is one which, in my opinion, is to be borne in mind.
Third, there remains the public interest in the effective, efficient and timeous disposal of litigation. The administration of justice requires that full assistance be available to the Court in determining the issues of fact and law which come before it. The isolation of issues and the presentation of the consideration which support one answer rather than another are things best done by a person experienced in such matters. [8]
[6]Worldwide Enterprises Pty Ltd v Silberman (2010) 26 VR 595 [40].
[7]Scotts Heads Developments (Unreported, New South Wales Court of Appeal, 6 September 1994, Mahoney AP, Powell JA, O’Keefe AJA). This decision is cited with approval by the Victorian Court of Appeal in Worldwide Enterprises Pty Ltd v Silberman (2010) 26 VR 595, 601.
[8]Ibid.
In Worldwide Enterprises Pty[9] Forrest J confirmed that in appropriate circumstances the Court may be persuaded to exercise its discretion under r 2.04 to dispense with the requirement of r 1.17(1). Forrest J identified the following circumstances as relevant to the exercise of that discretion:
[9][2009] VSC 165 affirmed in Worldwide Enterprises Pty Ltd v Silberman (2010) 26 VR 595.
(a) the manner in which the case has progressed at the time that the application is made.
(b) the manner in which the case can proceed in the future without a solicitor;
(c) the complexity of the issues involved in the case;
(d) whether the lack of disciplinary measures in relation to the person seeking to represent the company will affect the administration of justice;
(e) whether the case can be conducted in an orderly and responsible fashion without a solicitor;
(f) whether there are financial considerations which would inhibit a company from obtaining legal representation;
(g) the stage which the case has reached;
(h) whether the defendant is likely to expend more funds in defending the claim absent a solicitor acting for the company; and
(i) 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.[10]
[10]Ibid [20].
The financial considerations which inhibit a company from obtaining legal representation may be of particular importance in providing the reason for the application, as is apparent in this case. If that is the case, it is important that the company produce evidence of its financial capacity or lack of capacity and of those standing behind it, the effect of diverting company resources to paying legal expenses, the nature of the company’s undertaking, its financial structure, its ability to retain and pay its staff and the identity and spread of its shareholders.[11]
[11]Termi-Mesh Australia Pty Limited v Josu Manufacturing Pty Limited [1999] FCA 1241 [13] (‘Termi-Mesh’); Enviro-Pak Pty Ltd v New Horticulture Pty Ltd [2013] FCA 306 [16].
Submissions
In a document headed ‘Self Representation in Court’ Mr Rossi purports to outline his submissions in support of his application to represent Rossi Homes. One of the grounds Mr Rossi relied upon is the plaintiff company’s ‘financial situation of hardship’ which is also deposed to by Mr Rossi in his second affidavit. The other grounds relied upon are “‘in the interest of justice’, procedural fairness allowing representation, natural justice and a fair hearing”.[12] The remainder of this document, and a second document headed ‘Self Representation in Court Grounds for a Director to Represent a Company’,[13] expound the plaintiff company’s claimed right to representation by Mr Rossi pursuant to: the Commonwealth of Australia Constitution Act (Cth); the principle in Minister of State for Immigration and Ethnic Affairs v Teoh;[14] the International Covenant on Civil and Political Rights (the ‘Covenant’) ratified and adopted in the Australian Human Rights Commission Act 1986 (Cth) (‘AHRCA’); Imperial Acts Application Act 1980; Imperial Acts Application Act 1922; Universal Declaration of Human Rights 1948; Racial Discrimination Act 1975 (Cth); Interpretation of Legislation Act 1984; Acts Interpretation Act 1901 (Cth); and Mabo v Queensland (No 2).[15] The essence of Mr Rossi’s submissions is that ‘person’ includes corporations and consequently corporations have the benefit of human rights including a right to representation by the representative of its choice.
[12]Document of the Plaintiff filed 21 February 2018 headed ‘Self Representation in Court’ (‘Plaintiff’s document filed 21 February 2018’).
[13]Filed 5 January 2018.
[14](1995) 183 CLR 273.
[15](1992) 175 CLR 1.
It is clear from the documents filed with the Court that Mr Rossi has endeavoured to educate himself on our legal system. Mr Rossi expresses part of his argument as to why he should be permitted to represent the plaintiff company in the following terms (citations omitted):[16]
[16]Plaintiff’s document filed 21 February 2018.
2.3. The International Covenant on Civil and Political Rights ratified and adopted in the Australian Human Rights Commission Act 1986 (AHRCA) Schedule 2- Article 1: 1.1 provides for a self-determination, meaning I can choose representation, 1.2 provides for my right to means for my subsistence, in this case the Company Rossi Homes is my means of subsistence and 1.3 provides for the Government to promote and respect my right of self-determination […]
2.4. Rossi Homes is my means for my sustenance and AHRCA Schedule article 1 -1.2 provides that, in no case I may be deprived of my own means of subsistence. I represent Rossi Homes in every other aspect in everyday activities because it is my means of subsistence and without me, Rossi Homes is unable to function. Depriving me to represent is contrary to a person’s right of self-determination as this right is facilitated to all other persons in Court without discrimination on any status […]
2.5. The AHRCA provides for the Government to modify any existing laws to give effect to the rights in the Covenant of Civil and Political rights, in this case the right of self-determination by promoting and respecting my right to use Rossi Homes as means of my subsistence and no one is to deprive me, I use and represent Rossi Homes in all other respects. Denying Rossi Homes representation is denying the right of a hearing creating an unequal and biased platform.
2.6. The AHRCA Schedule 2- article 5 prevents the Government or any person to limit, derogate any person or my rights, also prevents from destroying any person’s or my right with the pretext that a law or a regulation allows it. Article 16 provides for anyone to be recognise as a person before the law, this applies to Rossi Homes as a person, and a person in article 16 is recognised before the law.
[…]
4. Discrimination on the basis of status
4.1 Discrimination of any kind is prohibited according to the following:
Universal Declaration of Human Right 1948- article 7 that basically states:
All are equal before the law… All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination and in this case the right of self-determine to represent.
4.2 International Covenant on Civil and Political Rights article 26 states:
the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
4.3 The Racial Discrimination Act 1975 (Commonwealth) provides in section 11 to be unlawful for a person to refuse access and use to a public place such as a Court. Any rules that impede a person in civil proceeding are discriminatory on the status of a different type of person, this is against the background that any person can self-represent. Therefore, is prohibited to deny the right a person such as Ross Homes to self-represent. International Covenant on Civil and Political Rights (Commonwealth Law) will invalidate any inconsistent part of a state law or regulation by the section 109 of the Commonwealth Constitution.
The plaintiff also relies upon his affidavits made 19 December 2017 (exhibiting the VCAT reasons) (‘first Rossi affidavit’) and 21 February 2018 (‘second Rossi affidavit’), and the document from which the above quote was taken, headed ‘Self Representation in Court’.[17]
[17]Plaintiff’s document filed 21 February 2018.
Mr Rossi refers to Enviro Pak Pty Ltd v New Horticulture Pty Ltd[18] as establishing that a director can represent a company. Whilst it is clear that a director may, with leave, represent a company, that case also confirms that the circumstances identified by Forrest J in Worldwide Enterprises,[19] and included in [8] above, are the relevant circumstances to consider in an application such as the present. However Enviro Pak Pty Ltd v New Horticulture Pty Ltd[20] can be distinguished from the current circumstances on a number of bases, which were highlighted by Griffiths J:
[18][2013] FCA 306.
[19][2009] VSC 165.
[20][2013] FCA 306 (‘Enviro Pak v New Horticulture’).
(a) the director provided evidence, being accounting statements, that established that the company was in financial difficulty and also evidence of efforts made by the company to procure lawyers on a pro bono basis;
(b) the director was himself a respondent in the proceedings and as such was entitled as of right to represent himself in the proceedings, as Griffiths J explained:
It seems to me that this is an important consideration and one which operates to weaken the weight or emphasis which might otherwise have been accorded to other relevant factors or considerations, including the competency of [the director], his lack of experience in litigation matters and so on.
It is evident from some of the affidavits and some of the interlocutory applications that have been filed by the first and second respondents, that [the director] doesn’t have a great familiarity with court processes and procedures. It may well be that in different circumstances those considerations would have weighed more heavily in the court’s assessment as to whether or not the corporation should be able to be represented by him. But as I have said, in circumstances where he is going to be here representing himself anyway, this lessens the weight which otherwise may have attached to those matters.[21]
(c) the director had demonstrated that he was capable of presenting an argument coherently and succinctly;[22]
(d) lawyers were acting for the director and the company when proceedings commenced and proceedings were well advanced, with the pleadings already settled, when the lawyers ceased acting.[23]
[21]Ibid [22]–[23].
[22]Ibid [24].
[23]Ibid [10], [25].
The second defendant opposes the grant of leave to Mr Rossi to represent the plaintiff Company. It relies on an affidavit of Emma Jane Risebrow, a Contracts Administrator employed by D & B.[24] D & B makes the following written submissions:
[24]Affidavit affirmed 26 February 2018, exhibiting Tax invoices of the Barrister who appeared for D & B in the Tribunal and the transcript of the VCAT proceeding.
(a) the plaintiff company does not have human rights. It is an incorporated company and should not be included in the definition of the term ‘peoples’ as used in Article 1 of the Covenant (which is Schedule 2 to the AHRCA). The extension of the term ‘person’ to include corporations, in s 2C of the Acts Interpretation Act 1901 (Cth) does not apply here because none of the terms ‘party’, ’someone’, ‘anyone’, ‘no‑one’, ‘one’, ‘another’ and ‘whoever’ are used;
(b) Mr Rossi is not a party to the proceeding and consequently his personal human rights have no bearing;
(c) in any event, Mr Rossi has misconstrued the concept of ‘self-determination’ to mean a right of self-representation when ‘self-determination‘ is clearly described to mean a right for peoples to ‘freely determine their political status and freely pursue their economic, social and cultural development’.[25] Furthermore, Mr Rossi has represented that he would be deprived of a right to ‘subsistence’ when he would still be able to continue to act as a director of the plaintiff company and the company would be free to continue trading;
[25]Australian Human Rights Commission Act 1986 (Cth), Sch 2 Article 1(1).
(d) rule 1.17 of the Rules is not inconsistent with the AHRCA for the above reasons;
(e) the relevant considerations are set out in Worldwide Enterprises[26] and include the nature of the claim itself and its prospects of success[27] and taking into account these circumstances the application should be dismissed;
[26][2009] VSC 165 [20].
[27]Ibid [25].
(f) the plaintiff company has not provided any evidence of its claim that it is unable to obtain legal representation due to its limited financial circumstances. Mr Rossi and the plaintiff company would have access to relevant materials and documents which demonstrate Rossi Homes’ financial circumstances but has chosen not to provide them. In any event, they are just one on the relevant considerations;
(g) the plaintiff’s claims in the VCAT included a number of allegations under Commonwealth legislation requiring the second defendant to engage Counsel to advise and appear as to the issue of the Tribunal’s jurisdiction;
(h) D & B has incurred legal costs in the amount of $9,740.50 to date which includes the current proceeding and the VCAT proceeding and has involved external legal representation and Counsel;
(i) the plaintiff’s originating motion states that it relies on the Australian Constitution, the Charter of Human Rights and Responsibilities Act 2006, the AHRCA and the Vienna Convention on the Law of Treaties;
(j) it is likely that D & B will incur significant cost in responding to the various points raised by the plaintiff.
In oral submissions D & B focussed on addressing the circumstances identified by Forrest J[28] to which I refer in my analysis below.
[28]Worldwide Enterprises [2009] VSC 165 [20] and repeated in [8] above.
Analysis
As a preliminary matter, I note that in Ilford Tower Pty Ltd v Equity One Mortgage Fund Ltd[29] the Court highlighted that it must be satisfied that the person proposed to represent the corporation has the authority to act for the corporation. Mr Rossi did not provide evidence that he had the express authority of the company to act on its behalf. No doubt he thought it to be too obvious to mention. Perhaps he relied on the VCAT reasons exhibited to the first Rossi affidavit and the confusing second affidavit which refers to Mr Rossi being ‘a Director of Rossi Homes’[30] and then to the company only having its sole director/shareholder to speak on behalf of the company.[31] For all the Court knows, the plaintiff may be in liquidation or worse, defunct.
[29][2014] VSCA 16.
[30]Second Rossi affidavit [9].
[31]Second Rossi affidavit [14].
Financial position of the company
Mr Rossi asserts that the company is unable to obtain legal representation due to its limited financial resources due to the actions of D & B.[32] The only evidence of the company’s financial situation is that assertion and the statement that the actions of D & B have crippled it financially.[33] In contra-distinction to the situation in Enviro Pak v New Horticulture, there is no substantive evidence, such as accounting statements, that establish that Rossi Homes is in financial difficulty. There is no evidence of the financial means of those behind Rossi Homes, Mr Rossi for example, to support the company in its claims. Nor is there any evidence of efforts made by the plaintiff company to procure lawyers on a pro bono basis.
[32]Second Rossi affidavit [12].
[33]Ibid [11].
Even if the Court were to accept Mr Rossi’s statements as limited evidence, rather than inadmissible assertions, and that the financial circumstances of the company would inhibit it from obtaining legal representation, this circumstance must be balanced against the other relevant considerations.[34]
[34]Worldwide Enterprises [2009] VSC 165.
Conduct of the case to date
Mr Rossi has, unfortunately, failed to grasp the intricacies of statutory interpretation and importantly the concept of ‘contrary intention’. Mr Rossi has endeavoured to persuade the Court that human rights should be enjoyed by the plaintiff company. It is clear from the VCAT reasons that a similar argument was run before the Member in terms of the Charter of Human Rights and Responsibilities Act 2006.[35] Mr Rossi has not understood from either his extensive reading or from the VCAT reasons that corporations do not have human rights. Whilst corporations are recognised as distinct legal entities and enjoy the privileges that accompany such status, those privileges do not extend to being recognised as a human being and enjoying human rights under Victorian Law.[36]
[35]Rossi Homes Pty Ltd v Dun and Bradstreet (Australia) Pty Ltd (Civil Claims) [2017] VCAT 1839 [37]–[40].
[36]See s 3 of the Charter of Human Rights and Responsibilities Act 2006 which states that ‘person means a human being’ and s 6 which states ‘only persons have human rights’.
The same position obtains under the Covenant, which is in Schedule 2 of the AHRCA. It is embedded in the AHRCA that a reference to ‘human rights’ means the rights and freedoms recognised in the Covenant declared by the Declarations or recognised or declared by any relevant international instrument.[37] The Covenant itself concerns the rights of individuals, men or women, and peoples generally. The recitals of the Covenant reinforce the general language and import of the Covenant by stating:
[37]AHRCA s 3, definition of human rights.
Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,
Recognizing that these rights derive from the inherent dignity of the human person,
Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying civil and political freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights,
Considering the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and freedoms,
Realizing that the individual, having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant,
Agree upon the following articles:
(Emphasis added)
It is clear that the rights and freedoms the subject of the Covenant are limited to human beings and do not apply directly to corporations. It is also clear that whatever obligations arise out of the Covenant and the AHRCA, they do not affect the operation of r 1.17 of the Rules, which regulate practice and procedure in the Supreme Court in a way that gives effect to human rights, rather than detracting from them. Individual humans have the right to appear in this Court and to represent themselves. It does not detract from that right that a corporation is generally required to be represented by a qualified legal practitioner.
It is clear from the transcript of the proceeding before VCAT that Mr Rossi struggled to posit the plaintiff’s case in a form that was understandable by the Tribunal and the defendant.[38] Compounding the issue was Mr Rossi’s difficulties with the concept of jurisdiction.[39] Similar legal obstacles are likely to face and frustrate Mr Rossi in prosecuting the proceeding. Mr Rossi was cautioned by the VCAT member about the potential pitfalls of pursuing his case on the bases of the Australian Constitution and international humanitarian law:
It’s your job to come along prepared and, as I was saying, I can see that you've put a lot of effort in. Sometimes it's not about the effort. It’s about having the skill and knowledge of the law. You can read things, but unless you understand the overall structure of the legal system, you might get the wrong impression, which is why it's important to get legal advice if you can afford it. Otherwise you might find yourself in a situation where you are doing something that you don’t understand. I’ve got an obligation to assist you and I will do that all the way through the case, but I can't run your case and I can’t give you legal advice. So if you structure your case in a certain way and you simply lose, well, that’s that. That was your decision to run your case that way, but if you want to rely on the Privacy Act Commonwealth and it turns out there is no case under the Privacy Act Commonwealth, that's it.
[…]
So I will encourage you to just think in very simple, not legal, terms about what it is that they’ve done wrong and find a piece of law that I’ve got power to deal with that fits that fact scenario.
[…]
I can tell you this, you know. We don’t talk about the Australian Constitution in the VCAT very often and it might not be very helpful for you to be drilling down into the provisions of the Australian Constitution or international humanitarian law. I can’t stop you putting those things before me. That will be your choice, but I would encourage you to focus your mind on the very simple question, what it is that they’ve done wrong? Because if they haven’t done anything wrong and you can’t point to something in Victorian law that VCAT has power to deal with, then the question has to loom pretty large, what case do you have?[40]
[38]Transcript of proceedings, Rossi Homes Pty Ltd v Dun and Bradstreet (Australia) Pty Ltd (VCAT Member Mahoney, 3 October 2017) 5, 10, 12, 31.
[39]T 16, 77, 82.
[40]T 32–33.
In applying the factor ‘whether the lack of disciplinary measures in relation to the person seeking to represent the company will affect the administration of justice’,[41] D & B referred to the decision of Forrest J in Worldwide Enterprises where he referred to the observation of the Associate Justice below that Mr Goodman had failed to ‘grasp an essential element of our legal system’.[42] D & B referred to the difficulties Mr Rossi demonstrated before the VCAT in relation to evidentiary issues and articulating a clear cause of action which caused the Tribunal Member to remark:
You bring the case, so the obligation falls on you to prove everything including that I have power to do what you say. They don’t have to prove anything. It’s your case. You’re the one that has brought them here. You’re the one that’s asking these things. You need to know what the law is and how you say they’ve breached it.[43]
[41]Worldwide Enterprises [2009] VSC 165 [20(d)].
[42]Ibid [22].
[43]T 16.
Despite the Tribunal Member’s repeated warnings to Mr Rossi in relation to evidentiary issues[44] Mr Rossi failed to eventually adduce appropriate evidence before the VCAT. This failure was repeated before this Court as outlined in [16]–[17] above in relation to financial circumstances and authority to represent the company. Mr Rossi’s difficulties in adducing evidence and formulating the plaintiff’s claims in succinct and understandable terms in the less onerous environment of the VCAT does not engender confidence in his abilities to adequately represent the plaintiff company in Supreme Court proceedings.
[44]T 37, 53, 61, 86.
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. For instance, the current application should be a relatively simple and routine application with a focus on the factors relevant to the Court in making a determination on permitting a non-legal practitioner to appear (as outlined in Worldwide Enterprises Pty Ltd v Silberman[45] and re-iterated in Enviro Pak Pty Ltd v New Horticulture Pty Ltd).[46] In Mr Rossi’s hands the hearing of this application traversed human rights, international law, the Australian Constitution and the principle in Mabo v Queensland (No 2).[47] As outlined above, such arguments are beside the point: a corporation not being a human being, it is not entitled to human rights. Before both this Court, and the VCAT, Mr Rossi has unnecessarily taken up the Court’s time with irrelevant legal arguments.
[45](2010) 26 VR 595.
[46][2013] FCA 306.
[47](1992) 175 CLR 1.
Future conduct of the claim
It is not the role of this application to express a considered view of the prospects of the plaintiff’s judicial review application. However, it is relevant to the extent that the originating motion for judicial review was prepared by Mr Rossi and provides some insight into Mr Rossi’s capacity to represent the plaintiff company in court and also expounds the grounds proposed to be relied upon in that application. It should be noted that judicial review applications are complex applications to make and may challenge even the seasoned legal practitioner. Such a judicial review is not an appeal and does not amount to a review of the merits of a tribunal member’s decision. Without delving too deeply into the plaintiff’s originating motion, it is clear that whilst the originating motion could possibly disclose an arguable ground of review, it is equally clear that this is overwhelmed by irrelevant material. It highlights the significant difficulties that Mr Rossi will encounter in prosecuting the proceeding himself, and, as a corollary, the increased difficulties the defendant will face in responding to Mr Rossi’s assertions.
I believe there is also merit in D & B’s observation that the current proceeding is still at an early stage and that there are many procedural steps yet to be completed. In light of the early stage D & B noted: firstly that the plaintiff company has plenty of time to brief legal representatives; and secondly that if the plaintiff company continues to be legally unrepresented then D & B are likely to incur an additional burden in each of the procedural stages. For instance in seeking amendments to the originating motion to better define the case to be answered and in preparing the court book. There is also a looming issue of D & B seeking security for its costs.
Impact on the Court and defendants
As I explained to the parties in the hearing, this Court has obligations to both the plaintiff and the defendant. The approach that Mr Rossi has taken in this Court and the bases upon which his grievances were put in the VCAT proceeding, in particular his continued focus on irrelevant human rights considerations and an inability to articulate a succinct cause of action, suggest to me that permitting him to continue to represent the plaintiff company poses a real risk to the ‘interest of the defendant in having the proceeding dealt with without unnecessary delay and cost’.[48] I am sympathetic to D & B’s submission that they will likely incur additional funds in defending the action because of the manner in which Mr Rossi has presented the case to date and because a solicitor is not acting for the company. Similarly Mr Rossi’s continued representation is likely to be more burdensome on the Court than if the plaintiff was represented by a solicitor.
[48]Scotts Heads Developments (Unreported, New South Wales Court of Appeal, 6 September 1994, Mahoney AP, Powell JA, O’Keefe AJA) BC9402965.
Lastly, the observation of Bongiorno JA in Worldwide Enterprises Pty Ltd v Silberman are as apt to this case as they were in that case:[49]
The wisdom of the rule requiring a corporation to be represented before the court by a legal practitioner was amply demonstrated here by the difficulties Mr Goodman had in presenting a concise, focused argument in what were relatively straightforward matters. Overall, he addressed the court for more than three hours on an immense volume of material which he had collected. It is precisely such prolixity which is one of the problems the rule was made to prevent. If it became common, the courts would be unable to cope. Incorporation confers many benefits on those connected with a company. It also imposes some burdens, one of which is that, in litigation, a company must normally be represented by a lawyer.
[49](2010) 26 VR 595 [76].
Conclusion
On the evidence before me I am not persuaded that the circumstances of this case warrant departing from the rule that a 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 on the court and the defendant if he were given leave to do so, militate against the grant of leave in this case.
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