Champion v Rohrt
[2016] VSCA 64
•6 April 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2016 0005
| MICHAEL JOHN CHAMPION |
| v |
| RICHARD TRYGVE ROHRT |
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| JUDGES: | SANTAMARIA JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | No oral hearing requested |
| DATE OF JUDGMENT: | 6 April 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 64 |
DETERMINED ON THE PAPERS
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PRACTICE AND PROCEDURE – Application for leave to appeal out of time – Determination without oral hearing – Application filed five days out of time – Miscalculation of correct date by applicant and counsel – Contention raised by applicant arguable and of general importance – No prejudice shown by respondent – Leave granted to extend time in which to appeal.
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| APPEARANCES: | Counsel | Solicitors |
| No appearances. |
SANTAMARIA JA:
The present application is for an extension of time to make an application for leave to appeal from the decision of the Victorian Civil and Administrative Tribunal (‘VCAT’) made by Judge Jenkins on 25 November 2015 (‘the decision’). In that decision, Michael John Champion (‘Champion’) was ordered to pay the costs of Richard Trygve Rohrt (‘Rohrt’) of the proceeding, such costs to be assessed by the Costs Court, in default of agreement, on the relevant County Court Scale, on an indemnity basis.
The present application for an extension of time has been referred to a single Judge of Appeal by the Registrar under order 64.15(1) of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’). Pursuant to order 64.15.5(b), a single Judge of Appeal may determine certain matters, including an application such as the present, without an oral hearing.
Background[1]
[1]The background facts have been taken from the decision in VCAT. See Rohrt v Champion (Legal Practice) [2015] VCAT 1875 (Judge Jenkins) (‘Reasons’).
On 24 September 2014, pursuant to an order of the Court, Rohrt a certified practising accountant of the firm Hamilton Murphy, was appointed as official liquidator of ARB Developments Pty Ltd (‘ARBD’).
Before it was placed in liquidation, Champion was a solicitor acting for ARBD.
On 25 September 2014, Rohrt sent a request for information to Champion about any instructions that Champion had with respect to acting for ARBD, including whether he held or retained any books, records or documents that belonged to the company and whether any money was held on trust or otherwise on behalf of the company. No response was received to this letter.
By notice sent on 8 October 2014, Rohrt required Champion to deliver to him the books and records of ARBD. The notice purported to be issued under s 530B of the Corporations Act 2001 (Cth) (‘Corporations Act’).[2] The notice was accompanied by a letter. Champion did not respond to the notice or to the letter.
[2]Section 530B of the Corporations Act 2001 (Cth) states:
Liquidator's rights to company's books (1) A person is not entitled, as against the liquidator of a company: (a) to retain possession of books of the company; or (b) to claim or enforce a lien on such books; but such a lien is not otherwise prejudiced.
On 29 October 2014, Rohrt made a formal complaint to the Legal Services Commissioner (‘LSC’) alleging that Champion failed to deliver up property to him, to which, he says, as a matter of law, he was entitled to possession. He also complained that Champion failed to deliver up ARBD books and records, contrary to s 530B of the Corporations Act. He stated that his duties as a liquidator were being deliberately and unlawfully obstructed.
In December 2014, Champion delivered to Rohrt eight boxes of files and an accompanying schedule describing the contents of each box.[3] Rohrt was not satisfied that the notice had been complied with. Later in December, Champion provided trust account statements.[4]
[3]Reasons [10].
[4]Ibid [12].
In March 2015, the LSC advised Rohrt, that he was unable to resolve the complaint and that Rohrt had the right to commence a proceeding in VCAT.[5]
[5]Ibid [13].
On 20 May 2015, Rohrt lodged an application with VCAT pursuant to s 4.3.15 of the Legal Profession Act 2004 (as it stood at the relevant time) (‘the Act’) for resolution of a civil dispute. Specifically, Rohrt sought an order under s 4.3.17 of the Act that Champion produce to Rohrt the books and records sought pursuant to the s 530B Notice on 8 October 2014.[6]
[6]Ibid [14].
In the second half of 2015, various directions hearings and compulsory conferences were held and convened as part of the VCAT proceeding. During those hearings and conferences, Rohrt further specified which documents he was seeking. Eventually, Champion provided several batches of documents to Rohrt. The first batch was provided before a directions hearing on 9 November 2015;[7] a further batch was provided before the next directions hearing on 18 November 2015.[8] In the event, it was unnecessary for VCAT to determine any issue between the parties.
[7]Ibid [25].
[8]Ibid [26].
Subsequent to the provision of the documents, Rohrt applied for an order that Champion pay the costs of the proceeding before VCAT.[9]
[9]Ibid [5].
VCAT made the order described in paragraph [1] above.
Application for extension of time
On 13 January 2016, Champion applied for leave to appeal to the Court of Appeal from the VCAT decision. Champion seeks leave to appeal, inter alia, VCAT’s decision that it had jurisdiction to determine the matter under ss 4.3.15 and 4.3.17 of the Act. As it transpired, the application for leave to appeal was five days out of time, hence the present application for an extension of time. On 13 January 2016, Champion applied for that extension of time. In support of his application for an extension of time, he filed an affidavit affirmed 13 January 2016 (‘the first Champion affidavit’). In his first affidavit, Champion deposed that, on 27 November 2015, he received a copy of the decision and that on 30 November 2015, he sought advice from counsel as to the prospects of an appeal from the decision. He then gave consideration to the time for making an application for leave to appeal and formed the view, that time ran, not from the date of the decision, but from the date that it was communicated to him. Acting upon that assumption, he calculated that the last date for the filing of an application for leave to appeal was 11 January 2016, being the next business day after 9 January 2016 (which was a Saturday). He deposed that on 24 December 2015, he received advice from counsel who was also acting on the same assumption. Champion deposed that he received the documents relevant to the application for leave to appeal from counsel on 11 January 2016 and attempted to file them on the same day. Later on that day, he received a communication from the Registry in the Court of Appeal which was to the effect that his application for leave to appeal was out of time.
Opposition to application for extension
On 11 February 2016, Rohrt filed a notice of opposition to application other than for leave to appeal (‘notice of opposition’). In his notice of opposition, he contended that (a) the explanation for delay was inadequate; and that (b) the application for leave to appeal was without merit in so far as: (i) the application for leave was against an order for costs only; and (ii) Champion had consented to the substantive relief sought without any reservation as to VCAT’s jurisdiction. In support of the notice of opposition, Thomas Francis Egan, the solicitor for Rohrt, swore an affidavit dated 11 February 2016 (‘the Egan affidavit’). The Egan affidavit, contains a description of the proceeding before VCAT, which resulted in the decision, as well as other proceedings involving the protagonists. Egan exhibits a consent order that was made by VCAT on 13 October 2015. In that order, Champion was ordered to provide Rohrt with documents under different descriptions including electronic copies of all his communications to and from ARDB. Egan deposed that the VCAT proceedings where adjourned until 9 November 2015 to allow Champion to provide some of the legal files comprising the books and records of ARBD. Egan then described the manner in which Champion provided further physical and electronic documents to him in November 2015.
In particular, Egan deposed that Champion did not take the jurisdictional objection which he now raises on appeal.
Finally, Egan deposed while no notice of the proposed appeal was received by him, on 14 January 2016, he received email correspondence from the Registry of the Court of Appeal advising that Champion was seeking an extension of time in which to file an application for leave to appeal and that an application was then five days out of time, not including the legal vacation from 24 December 2015 to 9 January 2016, when time did not run. This was the first indication to the Respondent that the Applicant proposed to appeal against the decision made 25 November 2015.
On 18 February 2016, Champion affirmed a further affidavit (‘the second Champion affidavit’), in which he took issue with Egan’s contention that the jurisdictional objection now sought to be taken had not been taken before VCAT. To the second Champion affidavit, Champion exhibited several pages of the transcript of the hearing before VCAT on 13 October 2015, together with a further exhibit of transcript which includes VCAT’s ruling on the issue of jurisdiction. In that part of the transcript, Judge Jenkins said:
I was just going to comment in relation to the jurisdiction or objection that was taken at the outset. In my view, there’s really no basis for that objection. In my view, the VCAT clearly does have jurisdiction within the terms of the Legal Practice Act [sic].
Reasons of VCAT
Section 109(1) of the Victorian Civil and Administrative Tribunal Act 1998 (‘the VCAT Act’) provides that, as a general rule in VCAT, each party is to bear their own costs of the proceeding.[10] However, s 109(2) of the VCAT Act provides that, at any time, ‘the Tribunal may order that a party pay all or a specified part of the costs of another party in a proceeding’.[11] Section 109(3) provides:
[10]Victorian Civil and Administrative Tribunal Act 1998 s 109.
[11]Section 111 of the Victorian Civil and Administrative Tribunal Act 1998 provides: ‘If the Tribunal makes an order for costs, the Tribunal— (a) may fix the amount of costs itself; or (b) may order that costs be assessed, settled, taxed or reviewed by the Costs Court’.
The Tribunal may make an order under subsection (2) only if satisfied that it is fair to do so, having regard to—
(a)whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding by conduct such as—
(i)failing to comply with an order or direction of the Tribunal without reasonable excuse;
(ii)failing to comply with this Act, the regulations, the rules or an enabling enactment;
(iii)asking for an adjournment as a result of (i) or (ii);
(iv)causing an adjournment;
(v)attempting to deceive another party or the Tribunal;
(vi)vexatiously conducting the proceeding;
(b)whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding;
(c)the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law;
(d)the nature and complexity of the proceeding;
(e)any other matter the Tribunal considers relevant.
In applying s 109(3), the primary judge thought Rohrt’s claim to be ‘very strong’.[12] She considered that Champion’s objections to the production of the documents were ‘spurious’.[13] She rejected the argument as to the jurisdiction of VCAT to entertain the claim saying:
In my view, the s 530B Notice is merely the mechanism by which a liquidator, now standing in the shoes of the company, is authorised to demand recovery of the company’s documents. In this instance, the Respondent, as a legal practitioner, continues to be subject to the Legal Profession Act 2004, pursuant to which civil disputes may be determined by the Tribunal.[14]
In addition, she found several other aspects of Champion’s conduct unsatisfactory, including delay and the occasioning of unnecessary costs. Finally, she ordered that costs should be on an indemnity basis on the basis that Champion had not shown any basis for delaying or objecting to the production of documents and a ‘a wilful disregard for known facts or clearly established law’.[15]
[12]Reasons [36].
[13]Ibid [39].
[14]Ibid [43].
[15]Ibid [55].
Contentions of Champion
Because the Court must take into account the merits of the substantive application, it is necessary to canvass briefly the contentions advanced in support of that application. The principal contention of Champion is that VCAT had no jurisdiction to hear and determine the matter that had been brought before it. The original application before VCAT had been brought under s 4.3.15 of the Act seeking orders under s 4.3.17. The jurisdiction conferred pursuant to s 4.3.15 arises where a party to a ‘civil dispute’ makes an application. Champion contends that there was no relevant ‘civil dispute’. The term is defined in s 4.2.2 of the Act. The only relevant definition is one that contemplates ‘a claim that a person has suffered pecuniary losses as a result of an act or omission by a law practice or an Australian legal practitioner in the provision of legal services to the person…’.[16] In other words, the section contemplates a dispute about the provision of legal services by a legal practitioner to his or her client. It does not contemplate a dispute that a third party has with a person who happens to be a legal practitioner. Champion has further submissions to make in the event that VCAT had jurisdiction over the matter that had been brought before it.
[16]Legal Profession Act 2004 s 4.2.2(2)(b) (emphasis added).
Analysis
In Muto v Department of Planning and Community Development,[17] Neave JA (with whom Nettle AP agreed) said:
The factors which must be considered in deciding whether an extension of time to seek leave to appeal should be granted, include the length of delay, the reasons for the delay, and the extent of any prejudice suffered by the respondent if the extension is granted. The Court will not extend time if the appeal is so devoid of merit that it would be futile to do so.[18]
[17][2013] VSCA 85.
[18]Ibid [13] (citation omitted).
In my opinion, the contention raised by Champion in relation to the jurisdiction of VCAT is arguable and of general importance. It should be resolved by the Court of Appeal.
The application for leave to appeal was five days late. While the failure of Champion to understand the Rules does not reflect well upon him, Rohrt has not pointed to any prejudice that he has suffered by reason of the delay.
The application for an extension of time in which to bring an application for leave to appeal is granted.
The costs of the present application are reserved to the hearing of the substantive application.
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