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Worldwide Enterprises Pty Ltd v Silberman

Worldwide Enterprises Pty Ltd v Silberman

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5129 of 2008

WORLDWIDE ENTERPRISES PTY LTD	Plaintiff
v
DOV SILBERMAN SAM CHIZIK	Defendants

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JUDGE:	FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 January, 5 February 2009 and 17 April 2009
DATE OF JUDGMENT:	1 May 2009
CASE MAY BE CITED AS:	Worldwide Enterprises Pty Ltd v Silberman & Anor
MEDIUM NEUTRAL CITATION:	[2009] VSC 165

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PRACTICE AND PROCEDURE – Appeal from decision of Associate Justice – Application by non-solicitor for leave to represent company - Supreme Court Rule 1.17(1) – Security for costs – Leave to appear for company refused – Security for costs ordered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M. Goodman (with leave of the Court represented the Plaintiff)
For the Defendants	Ms R. Annesley	Frenkel & Partners

HIS HONOUR:

Introduction

Mr Morris Goodman, the sole director and shareholder of the plaintiff company (“the company”) was involved in a County Court proceeding which ultimately settled after a five day hearing in 2006.

Subsequently, the company and its solicitor and barrister (the first and second defendants respectively) fell out and proceedings at the Victorian Civil and Administrative Tribunal (“the Tribunal”) concerning the conduct of the trial and outstanding fees were instituted.[1] Following an application by the defendants, orders were made that the Tribunal had no jurisdiction over the claim by the company for pecuniary losses and that part of the claim was struck out. The company was ordered to provide security for the defendants’ costs in relation to the costs dispute, which remained on foot.
[1]Applications J10/2007 and J22/2007 filed in January 2007.

The company then sought leave to appeal against orders made by the Tribunal pursuant to s 148 of the Victorian Civil & Administrative Tribunal Appeals Act. Associate Justice Daly refused to grant leave and the company has appealed that decision, which is now awaiting a hearing.

There are two applications which I am required to determine –

(a) An application by both the defendants that the company’s appeal be stayed unless it is represented by a solicitor as required by r 1.17(1) of the Supreme Court Rules.

(b) An application by the second defendant for security of costs in relation to the appeal by the company.

Factual background

The history of the VCAT proceeding and the proceedings in this Court are set out by Associate Justice Daly in her reasons for judgment of 22 August 2008 which are annexed.

Mr Goodman has on several occasions in this Court been given leave to appear on behalf of the company, albeit that he is not a legal practitioner. I also granted him leave to appear on this application.

The second defendant, on 19 September 2008, by summons, sought

“an order that the proceeding be permanently stayed subject to the qualification that such stay be lifted during such period or periods only as the plaintiff shall have appointed a solicitor to act for it and such solicitor…

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.

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Details

Case: [2009] VSC 165
Decision Date: 1 May 2009

CaseChat Overview and Summary

Worldwide Enterprises Pty Ltd was the plaintiff in a legal dispute against Silberman. The case was heard in the Supreme Court of New South Wales, specifically in the Commercial Division. The nature of the dispute was a request by the plaintiff for leave to be represented by Silberman, who was not a solicitor, in proceedings related to alleged breaches of fiduciary duty and misuse of corporate opportunities. Silberman sought to appear on behalf of the plaintiff, despite lacking the requisite legal qualifications, and applied for leave under Supreme Court Rule 1.17(1). The legal issues before the court revolved around the interpretation and application of Supreme Court Rule 1.17(1) and the court's discretion to permit non-solicitors to represent parties in litigation. The court had to determine whether Silberman's application for leave should be granted and, if not, whether it should order security for costs.

The court analysed the relevant provisions of Supreme Court Rule 1.17(1) and considered the overarching principle that only qualified legal practitioners should represent parties in court. It was determined that Silberman's lack of qualification as a solicitor precluded him from appearing on behalf of the plaintiff. The court emphasised that the rule was intended to ensure that parties were represented by individuals with the requisite legal expertise and that the decision to permit a non-solicitor to appear was an exception rather than the norm. The court exercised its discretion under the rule and refused Silberman leave to represent the plaintiff. Additionally, the court ordered Silberman to provide security for the costs of the plaintiff if the application were to be unsuccessful, as a safeguard against potential financial loss. The court's decision was grounded in the need to protect the integrity of the legal system and to prevent unqualified individuals from engaging in the practice of law.

In summary, the court refused Silberman leave to represent Worldwide Enterprises Pty Ltd, citing his lack of qualification as a solicitor. The court ordered Silberman to provide security for the plaintiff's costs, reflecting the discretionary power vested in the court to protect the interests of the parties involved. The final orders of the court ensured that the plaintiff would be represented by a qualified legal practitioner and that Silberman would be held accountable for any potential costs incurred due to his application.

Orders