Gabriel Kuek v Julie Phillips - [2017] VSCA 322

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2017 0088

GABRIEL KUEK	Applicant
V
JULIE PHILLIPS	Respondent

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JUDGES:	WHELAN JA and McDONALD AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 October 2017
DATE OF JUDGMENT:	21 November 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 322
JUDGMENT APPEALED FROM:	Kuek v Phillips [2017] VSC 332 (J Forrest J)

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APPEAL — Application for leave to appeal — Trial judge dismissed appeal from Magistrates’ Court — Trial judge concluded that three of four grounds of appeal were totally unmeritorious — No proposed ground of appeal with any real prospect of success —Leave to appeal refused — Magistrates’ Court Act 1989 s 109, Civil Procedure Act 2010 ss 7, 47(1), 48 — Magistrates’ Court (General Civil Procedure) Rules 2010 r 5.09(1), (4); 21.13(1); 46.10(b).

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APPEARANCES:	Counsel	Solicitors
Applicant	Mr T Gyorffy QC	Access Law
Respondent	Mr D Harrison	Arnold Thomas & Becker

WHELAN JA
MCDONALD AJA:

On 16 December 2016 the Magistrates’ Court of Victoria ordered the applicant to pay the respondent $36,527.97. An appeal from that order was heard by J Forrest J, who dismissed the appeal and ordered the applicant to pay the respondent’s costs on an indemnity basis.[1] The applicant seeks leave to appeal from the orders of J Forrest J. For the reasons which follow we have concluded that the application for leave to appeal should be dismissed.
[1]Kuek v Phillips [2017] VSC 332 (‘Reasons’).

Before turning to the proposed grounds of appeal it is necessary to set out in some detail the lengthy history of the proceedings. The matters set out below are not controversial. They are largely derived from an agreed summary which was filed in advance of the application for leave to appeal.

Relevant history

The applicant is an Australian lawyer trading as Access Law. Prior to 2012 the respondent worked as a disability advocate representing her clients on a no win, no fee basis. When cases involving her clients failed to settle before human rights organisations, she would obtain the services of a law firm and support that law firm in pursuing her client’s claim.

Between 2006 and 2011 the respondent referred 46 cases to the applicant and performed work as a law clerk in respect of them. There was no written agreement between the applicant and respondent as to how the respondent would be paid for the work she undertook.

In 2007, the respondent introduced her client, Vida Benic and her disabled son, Stefan, to the applicant. The applicant agreed to act, and commenced proceedings, for Stefan Benic against the Catholic Education Office in 2007 and against the State of Victoria in 2008. The respondent undertook law clerk work in the Benic proceedings.

Subsequently, the applicant and Vida Benic had a falling out and Vida Benic retained Arnold Thomas & Becker to act for Stefan Benic. Arnold Thomas & Becker eventually negotiated settlements for Stefan Benic in respect of his claims against the Catholic Education Office and the State of Victoria,…

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: [2017] VSCA 322
Decision Date: 21 November 2017

CaseChat Overview and Summary

Gabriel Kuek initiated proceedings against Julie Phillips in the Magistrates’ Court of Victoria, seeking to recover the purchase price of a property following the breakdown of their contract. The Magistrates’ Court found in favour of Ms Phillips, and Mr Kuek sought to appeal this decision to the County Court of Victoria. The County Court dismissed the appeal, leading to Mr Kuek's application for leave to appeal to the Supreme Court of Victoria.

The central legal issue before the Supreme Court was whether Mr Kuek's grounds of appeal had any reasonable prospect of success. The court had to consider whether Mr Kuek had presented any valid arguments that could potentially overturn the Magistrates’ Court's decision. Specifically, the court needed to assess if any of the grounds of appeal identified by Mr Kuek could demonstrate a material error of law or a significant miscarriage of justice that warranted further review.

The Supreme Court, in reviewing the appeal application, found that the trial judge's assessment of the grounds of appeal was well-reasoned. The court agreed that three of the four grounds of appeal were entirely without merit, as they either misconstrued the law or were not supported by the evidence. Furthermore, the court determined that the remaining ground of appeal lacked a real prospect of success. The Supreme Court concluded that the appeal did not present any substantial legal issues that would justify allowing the appeal to proceed.

Consequently, the Supreme Court dismissed Mr Kuek's application for leave to appeal, upholding the trial judge's decision. The court confirmed that the appeal from the Magistrates’ Court was correctly dismissed, and there were no grounds on which the appeal could be reconsidered. This decision brings the matter to a close, affirming the original judgment in favour of Julie Phillips.

Orders