EPPING & MERL
[2015] FamCAFC 81
•8 May 2015
FAMILY COURT OF AUSTRALIA
| EPPING & MERL | [2015] FamCAFC 81 |
| FAMILY LAW – APPEAL – LEAVE TO APPEAL – PROCEDURAL FAIRNESS – Direction to refer transcript to the Legal Services Commission – Where the appellant appeals this direction – Where the appellant appeared in person – Where the appellant is a consultant to a law firm as a solicitors managing clerk – Where a law firm appeared on the appellant’s behalf but did not have carriage of the matter – Where the appellant had used the law firm as his address for service and their stationery and letterhead – Whether the direction is an order such that it is capable of appeal per sections 94AAA and 4 of the Family Law Act 1975 (Cth) – Where the appellant argues procedural unfairness – Whether the appellant was afforded the opportunity to be heard – Where the appellant had adequate notice – Stead v State Government Insurance Commission (1986) 161 CLR 141 – Where there was no finding of fact by the primary judge – Where further material sought to be relied upon on appeal would have been of no assistance to the appellant – Appeal dismissed. |
| Family Law Act 1975 (Cth) s 4, 93A, 94AAA Legal Profession Act 2007 (Qld) s 429 |
| Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170 Constable & Constable [2014] FamCAFC 100 Johnson v Johnson (1997) FLC 92-764 |
Kioa v West (1985) 159 CLR 550
Redmond & Mullins [2015] FamCAFC 69
Re F: Litigants in person guidelines (2001) FLC 93-072
Rutherford & Rutherford (1991) FLC 92-255
Stead v State Government Insurance Commission (1986) 161 CLR 141
| APPELLANT: | Mr Epping |
| RESPONDENT: | Ms Merl |
| FILE NUMBER: | BRC | 3743 | of | 2014 |
| APPEAL NUMBER: | NA | 81 | of | 2014 |
| DATE DELIVERED: | 8 May 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 5 May 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 1 December 2014 and 5 December 2014 |
| LOWER COURT MNC: | [2014] FCCA 3015 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Galloway |
| SOLICITOR FOR THE APPELLANT: | Appeared in person |
| SOLICITOR FOR THE RESPONDENT: | No appearance |
Orders
The appeal is dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Epping & Merl has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 81 of 2014
File Number: BRC 3743 of 2014
| Mr Epping |
Appellant
And
| Ms Merl |
Respondent
REASONS FOR JUDGMENT
On 24 December 2014, Mr Epping (“the appellant”) filed a Notice of Appeal against orders and a direction of Judge Jarrett made on 1 December and 5 December 2014. The substantive issues between the parties having been resolved, there is only one part of the appeal which is now being pursued.
The direction contained within the court orders relevant to this appeal provided for a referral by the Registrar of the Federal Circuit Court of a transcript of the proceedings to the Legal Services Commission (“the LSC”). The appellant is a not a legal practitioner and describes himself as a “solicitors managing clerk”. As the matter was so limited, there was no appearance required by the Ms Merl (“wife”) or any other person.
In relation to the important question of the appellant’s position within the legal profession and in the proceedings before the Federal Circuit Court, Mr Galloway of counsel sought leave, as further evidence on appeal, to rely on the affidavit of solicitor Mr P sworn on 19 December 2014. In that affidavit it was explained that Mr P is the principal of Firm X. It was said that the appellant acts as a consultant to the firm and he has performed the role of “solicitors managing clerk” at other firms of solicitors. At Firm X he is referred to with that title.
The relevant direction of 5 December 2014 which is the subject of the appeal is as follows:
THE COURT DIRECTS THAT:
9.The Registrar of the Court cause a transcript of the proceedings in this application on 5 December, 2014 be referred to the Legal Services Commission, Queensland.
The appellant appeals the direction of the court on the following grounds:
3.His Honour erred in referring a Transcript of the proceedings in the application of 5th December 2014 to the Legal Services Commission without having given the Appellant sufficient notice of his intention to do so and without giving him the opportunity to be properly heard.
4.Further, his Honour erred in referring the matter to the Legal Services Commission when he had not yet heard from [Firm X], which firm’s evidence or submissions would necessarily bear upon his decision properly to make any such reference.
The issues arising in this appeal are first, whether the referral is an order such that there can be an appeal and whether in the circumstances of this case such a direction should have been made.
Background to the Appeal
The parties commenced a de facto relationship in early 2000. They separated in early 2013. There are no children of the relationship. The litigation in the Federal Circuit Court concerned property settlement.
The appellant, as it is now apparent, is not a solicitor. The appellant throughout the litigation appeared for himself, although the firm of solicitors for whom he is a consultant has corresponded apparently on his behalf. The address for service on his response to the wife’s initiating application (filed 5 August 2014) records his name but then uses the address of Firm X. The appellant’s affidavit of that same date records it was prepared by Ms M of Firm X and again lists their address.
In the course of litigation about property settlement, on 28 July 2014 the parties agreed, by consent orders, to the following relevant order:
The Court orders by consent until further order, that:
…
2.Unless such values are agreed between the parties in writing for the real properties listed below, [the valuers], are appointed pursuant to rule 15.09 of the Federal Circuit Court Rules (“the Rules”) to value such properties and the parties are to share equally in the costs of such valuations and provide to [the valuers] any information reasonably requested of them:
a.[Property A] (“the Former Matrimonial Home”);
b.[Property B] (“the Farm”); and
c.[Property C].
The parties failed to reach an agreement about the value of the properties the subject of the above order. The wife attempted to activate the order to appoint the valuers, but the appellant took issue with the valuer’s appointment on the basis that their fees were too high.
The matter came before Judge Jarrett on 1 December 2014. The solicitor for the wife appeared and a solicitor, Mr H, purported to appear on behalf of the appellant. The following exchange took place:
HIS HONOUR: Well, there’s no – but there’s no issue about that. It’s the subject of an order. Why didn’t the valuations take place?
MR [H]: Honour, firstly, if I can apologise. I don’t actually have carriage of this matter. The actual [appellant] himself is a consultant to the firm and does most of the dealings with this himself. I was aware that there was some issue with the costs. I actually was not aware that the order made specifically that [the valuers] was to do the valuation. However, I do believe the parties have now agreed on ..... valuations – valuers to undertake the valuation of those three properties.
(Transcript 1 December 2014, p. 2, l. 35)
His Honour refused to make orders varying the consent orders, and instead made the following orders:
1.The [appellant] is to file and serve an affidavit explaining his non-compliance with the previous orders.
2.The application be adjourned to 5 December 2014 at 9.30am for directions in the Federal Circuit Court of Australia sitting at Ipswich.
3. The [wife’s] costs of today be reserved.
4.The [appellant] is to appear personally on 5 December 2014.
5. The [wife’s] attendance on 5 December 2014 is excused.
(emphasis as per original)
The parties, the wife present and represented and the appellant present and self-represented, appeared before Judge Jarrett on 5 December 2014. The appellant argued to remove the valuers and appoint a less expensive company to value the properties. The wife subsequently withdrew consent to vary the order to appoint a new valuer. Judge Jarrett refused to vary the original consent orders.
During the hearing, the solicitor for the wife made an oral application that the appellant be restrained from communicating with him directly. This oral application revealed there was some confusion as to whether the appellant was in fact self-represented. Further, it raised questions as to why Firm X appeared as the appellant’s representative on 1 December 2015.
In respect of the oral application, Judge Jarret said the following in his reasons of 5 December 2015:
10.But it is appropriate to say, I think, that there are some curious circumstances surrounding the communications that have passed between the [appellant] – or at least those who purport to represent him – and the [wife’s] solicitors. The [appellant] has no solicitors on the record acting for him. Yet, there is evidence that a firm has been conducting correspondence on his behalf and purport to act for him. He says they do not.
11.There are a number of letters annexed to the affidavit of the [wife’s] solicitor filed on 4 December, 2014. Some of them pass between the [wife’s] solicitors and a firm of solicitors that purport to represent the [appellant].
12.For example, in a letter dated 18 September, 2014 from [Firm X] to [Firm Y], which one will find at exhibit AA5 to the [wife’s] solicitor’s affidavit, if not express representations then certainly implied representations that those solicitors are acting for the [appellant]. The letter contains words and phrases commonly associated with solicitors acting for clients. The word “we” appears which one might see as a reference to the firm. It is the habitual way in which firms of solicitors write, one to the other. It also contains a phrase “our client’s disclosure”, for example, which tends to indicate that the solicitors are acting for the wife. It certainly is an express representation that the [appellant] is the client of the firm. The letter repeats those types of phrases, and then is signed off by a signature above the name of the firm of [Firm X], and thereafter appears contact details for a person called [Ms M], described as a senior associate and solicitor.
13.The document also contains a reference…at its commencement. Habitually, those types of references are a reference to the initials of people who are involved in the file, either solicitors or partners handling it, or junior solicitors or perhaps even sometimes these days paralegals who are involved in the file. If that is what it is – and I am only speculating, of course – none of those initials correlate with the [appellant’s] initials.
14.There is another letter of 6 November, 2014 which is in the same terms, really. It talks about “we”; it talks about “our client’s disclosure”. On three other occasions there are references to “our client”. On page 3 of the letter there is this that appears:
We are presently seeking instructions from our client and counsel in relation to the suitability of those dates suggested.
15.Again, a phrase which is, on its face, asserting that the solicitors act for the [appellant], the [appellant] is the client of the solicitors, and he is providing instructions to them.
The judge then made reference to what the appellant said, that he was a consultant to the firm, that he was simply using the resources of his employer and he admitted that he was the author of the letters. In addition, that Firm X do not act for him [16]. Judge Jarrett said [17]:
If that is the case then he has clearly, and in my view quite deliberately, represented to the solicitors for the [wife] that he is represented by [Firm X], who are acting on his behalf in the proceedings.
Ultimately, the judge said [18]:
I refer the [appellant], who has legal qualifications, to the Legal Services Commissioner for Queensland for there to be an investigation into two things: first, the representations contained in the letters to which I have referred, and any other letters sent by the firm on the [appellant’s] behalf in this matter to the [wife’s] solicitors; and secondly, the statements made by him to me in this court this morning.
The judge gave Firm X an opportunity to appear before him the following Monday, 8 December 2014, for the purpose of making submissions as to whether a similar direction should also be made in relation to the firm.
On 7 January 2015, the appellant filed an Application in a Case in the Federal Circuit Court seeking the direction the subject of this appeal be varied or set aside. Alternatively, he sought the referral to the LSC be stayed until determination of the appeal.
On 23 March 2015 consent orders were made regarding other aspects of the de facto property and all outstanding applications were otherwise dismissed, save for the appellant’s stay application.
On 30 March 2015 Judge Jarrett dismissed the appellant’s Application in a Case.
The Appeal
If leave to appeal is granted, the appellant seeks to argue only grounds three and four in relation to the 5 December 2014 direction.
It is necessary to consider whether leave is required to appeal. The appellant lists the following asserted errors in his Notice of Appeal in support of leave being granted:
1.His Honour erred in referring a transcript of the proceedings in the application on 5th December 2014 to the Legal Services Commission without having given the appellant sufficient notice of his intention to do so, and without giving him the opportunity to be properly heard.
2. Further, his Honour erred in referring the matter to the Legal Services Commission when he had not yet heard from [Firm X], which firm’s evidence or submissions would necessarily bear upon his decision properly to make any such reference.
Additionally, in his summary of argument filed 30 April 2015, the appellant submits:
17.Although the matter concerning the referencing to the Legal Services Commission was made during an interlocutory hearing, the reference was a final order.
18.Even if leave were needed, then with respect, this honourable Full Court should grant that leave:
(a)The matter of reference of a litigant to the Legal Services Commission is a matter of general importance;
(b)The reference is a matter of considerable personal significance to the Appellant;
(c)Observations about the Appellant’s supposed delinquencies and findings about his credit were made without allegations against him being properly formulated and without him being heard.
Counsel also addressed the utility of the appeal in his summary of argument. The appellant correctly points out that as the matter has already been referred to the LSC, if the appeal were to succeed and the direction set aside, it cannot be ‘unmade’. To address this shortcoming, the appellant makes the following submissions:
30.Firstly if the order was wrongly made, which the Appellant says it is, then the setting aside of that order, together with reasons that justify it, can be used by the Appellant to recall that reference.
31.Secondly, an order of this honourable Full Court setting aside the order that makes the reference will, together with this honourable Court’s reasons, be an answer to the investigation of the Law Society.
32.Thirdly, and regardless of whether the reference be now recalled or even answered, the Appellant who has not been accorded procedural fairness, will be properly vindicated, a thing of important value to him.
(Summary of Argument filed 30 April 2015).
Whether leave is necessary is not always obvious (see Redmond & Mullins [2015] FamCAFC 69). The appellant argued that even though the direction was made during an interlocutory hearing, it was final in nature.
Without dealing at length with the possibilities of whether leave is required, it should be granted in this case. In light of the principles governing a grant of leave to appeal (see Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170 at 177; Rutherford & Rutherford (1991) FLC 92-255 at 78,715), it can be seen these are matters of general importance and the directions may have resulted in a substantial injustice to the appellant.
Of course, if there is no order from which to appeal, whether or not leave is required, is a vacuous argument.
Appeal from a direction
Is the direction an order? Section 93A of the Family Law Act 1975 (Cth) (“the Act”) provides:
Appellate jurisdiction of Family Court
(1)The Family Court has jurisdiction with respect to matters arising under this Act or under any other law made by the Parliament in respect of which:
(a) appeals referred to in section 94 are instituted; or
(aa)appeals referred to in subsection 94AAA(1) or (1A) are instituted; or
(b)appeals referred to in section 96 are instituted.
(2)Subject to section 96, in an appeal the Family Court shall have regard to the evidence given in the proceedings out of which the appeal arose and has power to draw inferences of fact and, in its discretion, to receive further evidence upon questions of fact, which evidence may be given:
(a) by affidavit; or
(b) by oral examination before the Family Court or a Judge; or
(c) as provided for in Division 2 of Part XI.
The relevant sections of s 94AAA provide:
Appeals to Family Court from Federal Circuit Court and Magistrates Court of Western Australia
(1) An appeal lies to the Family Court from:
(a)a decree of the Federal Circuit Court of Australia exercising original jurisdiction under this Act; or
…
The question is whether the direction to the Registrar is a decree. Section 4 of the Act, being the definition section, provides that:
"decree" means decree, judgment or order and includes:
(a) an order dismissing an application; or
(b) a refusal to make a decree or order.
Counsel for the appellant submitted that if I conclude that there has been procedural unfairness it must be possible for an appeal court to set aside such a direction. As I intend to dismiss the appeal, concluding that the grounds of appeal are not meritorious, it is not necessary to consider this question further.
There was no argument raised in the appeal that the primary judge had no power to make this reference.
According to s 429 of the Legal Profession Act 2007 (Qld):
(1)Subject to subsection (4), an entity may make a complaint in the approved form to the commissioner about the conduct of an Australian legal practitioner, law practice employee or unlawful operator, including, for example, an entity that—
(a) is or was a client of the law practice; or
(b) is the relevant regulatory authority.
A judicial officer of the court is not an entity capable of making a complaint. Judge Jarrett was not making a complaint. It has been the practice of the Family Court to refer a transcript of proceedings to the relevant regulatory authority where there have been serious concerns regarding the conduct of a practitioner.
In Constable & Constable [2014] FamCAFC 100, the Full Court in the reasons provided in the matter, instructed the Appeals Registrar to forward the reasons for judgment and the transcript to the Bar Association of Queensland to take ‘…whatever action they consider appropriate’ [117]. The Full Court in Constable did not make an order or a direction for the referral of the transcript, rather the request was contained in the reasons. As previously discussed in these reasons, Judge Jarret made a direction contained in the body of the orders. It is difficult to see how an objection could be taken to this approach.
Grounds
Ground Three
His Honour erred in referring a transcript of the proceedings in the application on 5th December 2014 to the Legal Services Commission without having given the appellant sufficient notice of his intention to do so, and without giving him the opportunity to be properly heard.
This ground requires careful examination of the transcripts on 1 and 5 December 2014.
As noted at [11] of these reasons, the solicitor representing the appellant at the hearing on1 December 2014 advised Judge Jarrett that he did not have carriage of the matter, and that the appellant is a consultant to the firm.
On 5 December 2014, the solicitor for the wife, Mr D, made the following oral application:
MR [D]:I’m also seeking an order that your Honour restrain the [appellant] from contacting me directly. Every single piece of correspondence that has been sent to me and that is annexed to my affidavit filed yesterday is signed off by [Ms M]. I don’t know who [Ms M] is, never seen her in this jurisdiction, hasn’t returned my calls, and she’s not here today.
[APPELLANT]: Your Honour, I’m sorry, I have to intervene there and object to that. There is no material before your Honour insofar as contact, returning phone calls and so forth. So if you will just note my objection.
MR [D]:In any event, your Honour, [Firm X] is the firm, but the [appellant] is sending correspondence to me. But they’re not on the court record. They have never appeared. They only appeared on Monday when a consultant was sent who knew nothing about the file. I don’t want the [appellant] contacting me at all. He has raised matters in his first affidavit of discussions - - -
(Transcript 5 December 2014, p. 11 l. 1-15)
After the oral application, to which the appellant objected, submissions on the substantive issues at the time were made – being the appointment of the valuer and other matters relating to the consent orders.
His Honour then returned to the oral application and invited the appellant to respond. It is important to set out the full discussion between the appellant and his Honour:
HIS HONOUR: Thanks. I’m sorry, [appellant], you didn’t address me on the seemingly oral application made by Mr [D] that you have a lawyer correspond with him.
[APPELLANT]: Your Honour, I responded to that by saying that there was no material before your Honour.
Mr [D]: That’s not right, your Honour, that’s - - -
HIS HONOUR: No. Well, there is material before me.
Mr [D]: There is.
[APPELLANT]: The material which is before you, your Honour, is that you’ve got correspondence which has transpired from a firm that I consult to, that I am employed at, and it’s relative to send correspondence from there in my absence to ensure the proper conduct of the matter in an expedient manner. If my friend is going to take objection to my using the resources at my employer firm, then I will refrain from doing that and correspond with him directly. But my learned friend or my friend will notice that the address for service is me personally at my work address, and that is only there for the sake of priority. It takes five days to get a normal letter to me out at the farm. There is no available facsimile number up there, and he can only speak to me by mobile. Everything that is sent to the firm office is brought to my attention electronically almost immediately.
HIS HONOUR: If that’s all true, then why do the solicitors write using the phrase “we refer” “we know” “we note” “our client’s disclosure will be with you shortly”. That’s clearly a representation by the solicitors that they’re acting for you and that you’re their client. What else could it be?
[APPELLANT]: They – well, your Honour, those letters are actually written by me and it’s probably force of habit on a dictation machine, given that I’m not down in the office and I am sitting there dictating in response to material. I don’t use the words “I”, I use the words “we”, because “I” am not the firm.
HIS HONOUR: I see. Right, I see. And the words “our client’s disclosure”?
[APPELLANT]: Is part of the process of actually writing as I’m dictating. I try and put myself in the third person and take myself out of the picture.
HIS HONOUR: I see.
[APPELLANT]: It avoids personality coming into play.
HIS HONOUR: I now require an explanation as to why I should not refer you and the solicitors to the Legal Services Commissioner, because it’s clearly a misrepresentation that is made by both the firm and you as to what that letter means. Now is your opportunity to tell me why I shouldn’t refer it.
[APPELLANT]: Your Honour, I don’t really wish to make a submission on that, if you - - -
HIS HONOUR: Thank you.
[APPELLANT]: If you wish to actually make the reference - - -
HIS HONOUR: If you don’t wish to make a submission - - -
[APPELLANT]: - - - for the referral, you have to give me the opportunity to identify exactly what it is your Honour is complaining of. Do you say that there’s misleading conduct?
HIS HONOUR: I thought I just did. I thought I just did.
[APPELLANT]: Well, you turned around and said it’s misleading conduct. Well, what is the misleading conduct?
HIS HONOUR: I thought I just did.
[APPELLANT]: Well, you did not, respectfully, your Honour, you did not.
HIS HONOUR: Thank you. Anything else?
[APPELLANT]: No, I just need to turn around and ask his Honour if he needs me to address anything further?
HIS HONOUR: Resume your seat.
(Transcript, 5 December 2014 p. 15 – 16).
Judge Jarrett then spoke to counsel representing Firm X, who were present in court. The solicitors were given time to respond at a later hearing on 8 December 2014.
The appellant complains that he had no advance notice of the oral application made by the solicitors for the wife during the hearing on 5 December 2014. Counsel for the appellant argues in this appeal that the appellant ‘…could not reasonably be expected to have anticipated that an oral application…would quickly develop into an inquiry about the proprietary of the Appellant’s relationship with [Firm X].” (Appellant’s written submissions, 30 April 2015 [20]).
This is not correct; the appellant was on notice as early as August 2014. The affidavit of Mr D, the solicitor for the wife, filed 4 December 2014 revealed the following:
6.On 18 August 2014, I sent a letter to [Firm X] requesting the [appellant] cease communicating directly with the writer and our Counsel...
The letter annexed to the affidavit an marked annexure AA2 is as follows:
Your client has recently been communicating directly with our office and with our Counsel.
As a legal practitioner himself one would have thought he would be aware that he ought not to do so. You might kindly remind him of this, and in any event, ask him to cease – unless of course you do not represent him.
The letter from Firm X in reply dated 18 September 2014 annexed to the affidavit and marked annexure AA5 is signed by Ms M, Senior Associate and in part, said:
We note your comments with respect to [the appellant] contacting you to discuss the matter and having a preference for all communication being placed in writing. In those circumstances, this letter is being written.
We note that you have not provided any response to the matters canvassed under cover of our letter dated 27 May 2014 and further, your client has failed to disclose any material relevant to the rental of [Property A] not the refinancing of same noting your client and…used a finance broker, the application for finance and associated documents are within the ambit of your clients custody and control and those documents need to be disclosed.
…
Change of Solicitors
Given the level of acrimony that you have expressed together with your failure to address pertinent issues, our client is currently changing representation and in that regard, we propose to revert to you within 14 days.
(original emphasis)
Importantly, in that letter it was not revealed that the appellant is not a legal practitioner nor that the firm were not acting for him.
In addition, the appellant argues also through his counsel that it is fundamental to the administration of justice that he should have been given the opportunity to be heard, and, precisely understand what it is he was to answer. More particularly, he argues:
16.The Appellant in this appeal argues that taken as a whole the allegations against him were not properly formulated by the learned trial Judge and that he was not given the opportunity to be heard. Given the gravity of potential consequences of an adverse reference, it was imperative that no such reference be made:
(a)Until the Appellant’s alleged delinquency was precisely identified;
(b)Until the Appellant was given the opportunity to consider the allegations to prepare a response and be heard;
(c)Until the learned trial Judge had at least taken into account that which was going to be said on the 8th December on behalf of the Solicitors.
It must first be observed that this was not a contempt proceeding. His Honour made it entirely plain to the appellant the matters about which he was concerned and gave him an opportunity to reply.
It is also complained that the primary judge afforded Firm X the opportunity to be heard further, but did not give the appellant the same opportunity. It was submitted that the appellant was tried to a different standard.
After Judge Jarrett indicated he would refer the transcript regarding the appellant to the LSC and was considering doing the same in respect of the firm, counsel for Firm X, requested an opportunity to review the transcript to address each of the allegations and prepare an affidavit to deal with them. The firm was granted such opportunity, and on 19 December 2014 they filed an affidavit. It is that affidavit upon which Mr Galloway now relies.
It is correct that the appellant was afforded no opportunity to address this affidavit in oral or written submissions.
Failure to be heard/Denial of natural justice
The principles of procedural fairness are well-known (see Johnson v Johnson (1997) FLC 92-764, Re F: Litigants in person guidelines (2001) FLC 93-072). There is no doubt that a litigant should be provided the opportunity to be properly heard and make submissions on proposed orders.
In Stead v State Government Insurance Commission (1986) 161 CLR 141 where the High Court considered the question of whether a breach of the right to be heard principle would entitle a litigant to appeal against a decision by a lower court it was said [145]:
For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.
Counsel for the appellant also relied on the comments of Mason J in Kioa v West (1985) 159 CLR 550, at 582:
The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations subject only to the clear manifestation of a contrary statutory intention.
In this case the appellant admitted that it was he who was the author of the letters.
If there was any procedural unfairness it cannot be seen how adjourning the matter to another occasion – as in the case of the solicitors, would have made any difference.
The judge was not making any findings of fact, simply referring the transcript to the LSC for their consideration.
Ground Four
Further, his Honour erred in referring the matter to the Legal Services Commission when he had not yet heard from [Firm X], which firm’s evidence or submissions would necessarily bear upon his decision properly to make such reference.
Ground four ties in with the aspects of procedural fairness identified above. As discussed earlier, on 8 December 2014 Firm X was provided an opportunity to review the transcript of the proceedings of 5 December 2014 and make submissions each allegation by way of affidavit filed some two weeks later.
The appellant was not invited to participate in the hearing on 8 December 2014, nor was he afforded the opportunity to respond to the affidavit of the firm’s evidence. Mr Galloway was unable to submit how this would have made any difference to the decision of the judge to refer the transcript.
Reference to this affidavit upon which Mr Galloway relied demonstrates that it would have been of no assistance to the appellant. The letter of Firm X to the appellant dated 5 December 2014 is as follows:
…
It has come to our attention that you have used our firm’s details in the lodging of documents with the Court, giving the false impression that our firm acts for you as the solicitors of record.
As you will appreciate, your instructions to us were that our firm was to act for you in this matter, however only in a limited capacity, and without formally appearing on the record for you. You instructed that you would prepare the court documents and lodge them yourself through your personal access to the Commonwealth Courts portal.
On 1 December 2014, upon your request, Mr [H] appeared before the Court for the purposes of seeking consent orders that you had negotiated with the solicitor for the Applicant in the matter.
It appears that Mr [H’s] appearance, along with the lodger details of documents lodged by you on the court’s portal, have given the Court the impression we are the solicitors on record which was not intended.
Given that you do not wish to retain us as solicitors on record for you, we do not propose to act for you any further in this matter, in any capacity, effective immediately
…
The appellant has not succeeded in demonstrating any error on the part of Judge Jarrett. The appeal should be dismissed.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 8 May 2015.
Associate:
Date: 8 May 2015
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