Gadens Lawyers v Virgtel Ltd

[2009] VSC 377

IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

No. 6860 of 2009

GADENS LAWYERS	Plaintiff
and
VIRGTEL LIMITED and VIRGTEL GLOBAL NETWORKS NV	Defendants

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JUDGE:	PAGONE J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 August 2009
DATE OF RULING:	17 August 2009
CASE MAY BE CITED AS:	Gadens Lawyers v Virgtel Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2009] VSC 377

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LEGAL PRACTITIONERS – Cancellation of costs agreement – Jurisdiction of Victorian Civil and Administrative Tribunal – s 103 Legal Practice Act 1996 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R. Antill	Gadens Lawyers
For the Defendants	Mr A. Hamlyn-Harris	Russell Kennedy

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HIS HONOUR:

1. This is an appeal de novo from an order made by Daly AsJ granting leave to appeal from a decision of the Victorian Civil and Administrative Tribunal. The leave to appeal was sought from the first order of the tribunal made on 15 April 2009. The tribunal ordered that the respondents, a firm of solicitors, serve upon the applicants and lodge with the tribunal the firm’s response to an application made under s 103 of the Legal Practice Act 1996 by their former client.  What is to be served upon the applicant and lodged with the tribunal under that order are particulars in response to the application and any document, other than documents annexed to the application, that the firm relies upon as evidence of a costs agreement and any conduct that is relied upon by them as evidence of a costs agreement.  They are also required to provide to the applicant and tribunal a photocopy of any such document.

1. In my opinion, the leave ought not to have been granted for a number of reasons. The relevant jurisdiction of the tribunal is that confirmed by s 103(1) of the Legal Practice Act 1996.  That provision confers upon the tribunal the specific jurisdiction on application by a client to order that "a costs agreement" be cancelled if satisfied about certain matters.  The existence of a costs agreement is posited by the section as an objective fact and it is critical to the tribunal's decision that the costs agreement which is the subject of the jurisdiction squarely, properly and fully be before the tribunal before it can proceed.  The jurisdiction of the tribunal is not to cancel such costs agreement “as the client may have identified” but, rather, to cancel such costs agreement as exists in fact.  If the costs agreement is not as the client has identified, the tribunal's jurisdiction is not necessarily removed.

1. It may be conceivable that in certain circumstances an application made by a client is misconceived because the applicant may have sought to cancel a costs agreement which is not the costs agreement upon which the solicitors have sought to rely.  The tribunal's jurisdiction to cancel something is that which exists as the costs agreement entered into between the parties and, in my view, the tribunal is perfectly entitled and ought, as a matter of proper management of its own procedures in appropriate cases, require production of material, including the particulars and discovery, that will enable it to ensure itself that the jurisdiction that it is about to enter upon can be entered upon.

1. It is also, in my view, important for the tribunal to do that in order for it to determine whether the application made by the client sufficiently enlivens the jurisdiction.  If the costs agreement which the client has sought to have cancelled is not the costs agreement made between client and solicitor, then the tribunal should properly inform itself of what it is that is alleged so that it does not by error or inadvertence embark upon a jurisdiction that it plainly does not have.

1. Accordingly, at the very least the order against which leave to appeal is sought was an order in aid of the Tribunal determining whether what it was being asked to do was something within its jurisdiction. The order facilitates the resolution of the disputes between the parties.  It is an order that is, of its nature, calculated to reduce disputes between the parties so as to identify with greater precision the ambit of the dispute between them.

1. I say nothing about whether the foreshadowed applications made by the firm had merit or not.  Perhaps they do.  I say nothing about whether the client’s application to the tribunal is an abuse of process.  It may be.  It may not be.  I have no view.  I say only this about it: that the order made by the tribunal is calculated to produce a clearer understanding in aid of the very application which Gadens have foreshadowed that they will bring.

1. Identifying precisely what it is that each party contends to be the costs agreement can only aid and clarify all questions about abuse, all questions about jurisdiction and ultimately will facilitate the tribunal in discharging its duty imposed upon it by law.  In those circumstances, I will allow the appeal and vacate the orders made by Daly AsJ on 8 July 2009.

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