Tal v Jonco Imports Pty Ltd

[2011] VCC 865

IN THE COUNTY COURT OF VICTORIA Revised

(Not) Restricted

AT MELBOURNE
COMMERCIAL LIST

GENERAL DIVISION

Case No. CI-11-01283

SHMUEL TAL	Plaintiff
v.
JONCO IMPORTS PTY LTD & ORS	Defendants

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JUDGE:	His Honour Judge Anderson
WHERE HELD:	Melbourne
DATE OF HEARING:	30 June 2011
DATE OF JUDGMENT:	30 June 2011 (revised 14 July 2011)
CASE MAY BE CITED AS:	Tal v. Jonco Imports Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2011] VCC 865

REASONS FOR JUDGMENT

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Catchwords:  Practice and Procedure – Corporate party not represented by solicitors
– Application by “chief operation officer” to represent the company –
Person likely top be a witness – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Kenny	Kalus Kenny

For the First Defendant	Mr A. Preston (allegedly a director of first defendant) seeking leave to appear
For the Second Defendant	Mr C. Jones in person
For the Third Defendant	(No appearance)
HIS HONOUR:

1           The plaintiff has brought summary judgment proceedings against the first defendant. The first defendant is a company. It filed a defence on 24 May 2011 and at the hearing of the plaintiff’s summons today, sought leave to be represented by Mr Alexander Preston. Mr Preston is not a lawyer. In affidavits filed with the Court including on 29 June 2011, he describes himself as the Chief Operation Officer of the company and the person “in charge of the day to day conduct” of the company.

2           Mr Preston informed me that he was a director of the company. He first informed me that he was the sole director of the company, but later informed me that the second defendant was also a director of the company. There is nothing before the Court at present which would confirm that Mr Preston is a director of the company. Mr Preston has sworn a number of affidavits in relation to the plaintiff’s application. He has conducted correspondence and telephone conversations with the plaintiff’s solicitor.

3           The second and third named defendants, in applications to set aside default judgments entered against them, have relied upon conversations Mr Preston was alleged to have had with the plaintiff’s solicitors. The substance of those conversations is disputed in affidavit material filed by the plaintiff.

4 approached by the plaintiff’s solicitor who had made derogatory and threatening
comments to him. These matters were denied by the plaintiff’s solicitor, Mr Kenny,
who informed me that the conversation with Mr Preston was without prejudice and his

When the Court resumed after lunch, Mr Preston informed me that he had been would be without prejudice. Apart from listening to the assertions made by Mr Preston, and by Mr Kenny in response, I have not investigated that matter further, and I do not know the truth of what occurred during the luncheon adjournment is.

5           It is clear from the documents filed by the first defendant, including the defence and the affidavits of Mr Preston, that some legal assistance has been given to the first defendant. Unfortunately, the extent of the legal assistance has been insufficient, in the case of the defence, to file a pleading which should be allowed to remain on the Court file. It should, in my view, be struck out and an appropriate defence filed.

6           There are, therefore, a number of matters which have led me to the conclusion that it is inappropriate for the first defendant to be represented by Mr Preston. In summary, they are as follows:

a.	Mr Preston is likely to be a witness in the action as the present defence appears to rely upon negotiations which included Mr Preston. It would also appear that in order to determine the second defendant’s application to set aside judgment, consideration will have to be given to conversations allegedly made by Mr Preston on behalf of that defendant;
b.	the documents filed by Mr Preston, and in particular, the defence filed on 24 May 2011 are not in the form which the Court should accept as appropriate;
c.	Mr Preston has raised matters concerning the conduct of the plaintiff’s solicitors, which may require further investigation. These matters also indicate the inappropriateness of this litigation being conducted where the principal representative of the first defendant has made a serious complaint about the content of a communication with the plaintiff’s solicitor whilst this matter was before the Court.

7           I consider, in the circumstances, that Mr Preston cannot appropriately represent the interests of the first defendant. It is unlikely that there is any other person, for example, Mr Jones the second defendant, who is a director of the company, could appropriately represent the first defendant. In the meantime, the plaintiff has an outstanding summary judgment application against the first defendant.

8           Mr Preston indicated, during the course of his submissions seeking leave to represent the first defendant, that the first defendant was unable, because of its financial circumstances, to employ solicitors. The case concerns credit transactions between a clothing wholesaler and the first defendant who apparently operates three retail clothing stores in Queensland. Because of what Mr Preston has said about the financial position of the first defendant, it is appropriate that the plaintiff’s summary judgment application be heard as soon as possible.

9           I will adjourn the application until a date convenient to the plaintiff. I suggest that next Friday would be an appropriate date.

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Certificate

I certify that these 2 pages are a true copy of the reasons for decision of His Honour Judge

Anderson delivered on 30 June 2011 and revised on 14 July 2011.

Dated: 4 August 2011

Caroline Dawes

Associate to His Honour Judge Anderson