Hallett v Robert James Lawyers - [2021] VSC 363

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 02978

ARTHUR HALLETT	Appellant
v
ROBERT JAMES LAWYERS	First Respondent
and
THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL	Second Respondent

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JUDGE:	O’Meara J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 June 2021
DATE OF JUDGMENT:	24 June 2021
CASE MAY BE CITED AS:	Hallett v Robert James Lawyers
MEDIUM NEUTRAL CITATION:	[2021] VSC 363

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ADMINISTRATIVE LAW – Victorian Civil and Administrative Tribunal – Litigant in person – Application struck out – Application for leave to appeal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) and appeal if leave is granted – Appeal on a question of law – Denial of natural justice – Appeal allowed – Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 71, 75, 148 – Australian Consumer Law and Fair Trading Act 2012 ss 183, 189 – Towie v Victoria [2008] VSC 177 considered.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	AFL Krohn	Provest Law
For the First Respondent	No appearance
For the Second Respondent	No appearance

HIS HONOUR:

A Background

In early 2017 the appellant was a defendant in a Magistrates’ Court proceeding. On about 31 January 2017, he retained the first respondent to act for him in that proceeding, which was listed for final hearing on 9 February 2017. From the perspective of the appellant, the matter was not ready to proceed.

At the request of the first respondent and commencing on 1 February 2017, the appellant deposited tranches of $2,000 into the first respondent’s trust account until he had deposited a total sum of $10,000.

The opposing litigant did not agree to a proposed adjournment. It seems that the appellant proposed to file and serve an amended defence and counterclaim and, as I have noted, from his perspective the matter was not then ready to proceed.

Ultimately, it seems that the matter of an adjournment needed to be argued before the Magistrates’ Court. In connection with that hearing, the appellant’s legal practitioner, Benjamin Franklin, swore an affidavit dated 8 February 2017. The affidavit deposed to various aspects of the history of the proceeding and the state of preparation of the appellant’s defence. Mr Franklin deposed to the appellant being at that point ‘fatally underprepared … to conduct a trial and properly present his defence at the Hearing on Thursday 9 February 2017’. Mr Franklin deposed to various other matters relevant to the application for adjournment, including the appellant’s then state of health.

In the present proceeding, the appellant deposes that an adjournment of the Magistrates’ Court proceeding was obtained, but only for two weeks, and the appellant was ordered to pay costs. He claims that a costs order might have been avoided if the request for an adjournment had been made ‘in a timely manner’. Nothing presently turns upon that assertion.

The appellant deposes that he later engaged Rigby Cooke Lawyers and then incurred ‘duplicated costs’.…

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: [2021] VSC 363
Decision Date: 24 June 2021

CaseChat Overview and Summary

In the case of Hallett v Robert James Lawyers, the dispute involved an application by the applicant, Hallett, to have his application to the Victorian Civil and Administrative Tribunal (VCAT) reinstated, which was previously struck out. Hallett was acting as a litigant in person. The matter was heard in the Supreme Court of Victoria. The primary legal issue was whether Hallett's right to natural justice was denied when his application was struck out without providing him the opportunity to respond to the respondent's submissions.

The Supreme Court examined whether the procedural steps taken by VCAT complied with the principles of natural justice. The court noted that Hallett was not given the opportunity to respond to the respondent's submissions before the application was struck out. The court considered the relevant statutory provisions, including sections 71, 75, and 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), as well as sections 183 and 189 of the Australian Consumer Law and Fair Trading Act 2012. The court also referred to the case of Towie v Victoria [2008] VSC 177 for guidance on the principles of natural justice.

Upon considering the evidence and arguments presented, the Supreme Court found that Hallett's right to natural justice was indeed denied, as he was not given an opportunity to respond to the respondent's submissions before his application was struck out. Consequently, the appeal was allowed, and the matter was remitted back to VCAT for reconsideration. The court emphasised the importance of adhering to the principles of natural justice in administrative law proceedings.

Orders