Hallett v Robert James Lawyers (No 2)

[2021] VSC 410

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

---

JUDGE:	O’Meara J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 June 2021
DATE OF JUDGMENT:	8 July 2021
CASE MAY BE CITED AS:	Hallett v Robert James Lawyers (No 2)
MEDIUM NEUTRAL CITATION:	[2021] VSC 410

---

PROCEDURE – Application for indemnity certificate – Appeal Costs Act 1998 (Vic) – R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 considered.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	AFL Krohn	Provest Law
For the First Respondent	B Lodding, solicitor	Robert James Lawyers
For the Second Respondent	No appearance

HIS HONOUR:

1. On 24 June 2021, I delivered judgment and made orders in Hallett v Robert James Lawyers [2021] VSC 363. The hearing was conducted via Zoom. Mr Krohn appeared as counsel for the appellant. Mr Lodding, solicitor, appeared for the first respondent. The second respondent did not appear.

1. I ordered that leave to appeal be granted and the appeal be allowed.  Having heard from Mr Krohn and Mr Lodding, I ordered that the first respondent pay the appellant’s costs of and incidental to the appeal.  I delivered oral reasons in connection with the making of that order.

1. Later that day, Mr Lodding emailed the Court.  He stated that he had earlier appeared in the ‘well of the Court … to observe the proceeding’ and that he had been ‘unaware that any order for costs had been or would be sought against Robert James Lawyers’.  Nothing presently turns upon those assertions.  He otherwise sought a further hearing in order to apply for a certificate under the Appeal Costs Act1998 (Vic) (‘the Act’) and to provide evidence to the Court about ‘facts and matters’ relevant to that application.

1. The application was listed for hearing at 2.15pm on 25 June 2021.

1. At 11.31am on 25 June 2021, Mr Lodding emailed an affidavit with 64 pages of exhibits.  The hearing took place that afternoon.

1. Part of the material relied on by the first respondent was directed to clarifying an aspect arising out of the substantive hearing, namely whether or when the appellant had been provided with a copy of the first respondent’s letter to the Registrar of VCAT dated 27 February 2019.[1]

   [1]Hallett v Robert James Lawyers [2021] VSC 363, [22].

1. The material tends to show that the letter of 27 February 2019 was emailed to VCAT at 2.27pm that day and, separately, to the appellant at 3.56pm that day.

1. At the hearing of the present application, Counsel for the appellant stated that he was instructed that the appellant does not recall receiving the letter, and considers that he would recall it if he had.  Counsel said that the appellant is now unable to check his email account concerning the issue because the particular email was addressed to a now closed account.  Counsel said that the position of the appellant would not have been altered even if he had received the letter, as at that time he had received notice of a hearing date in VCAT and expected that any issues that arose could be determined at that hearing.  Counsel said that the appellant would be able to swear an affidavit to the above effect. 

1. I declined the offer of an affidavit.  It is sufficient to record the respective positions outlined.  Nothing further turns upon the issue.

1. The balance of the first respondent’s material was directed to an application for an indemnity certificate under s 4 of the Act. The Act vests a discretion in the Court to grant such an certificate.

1. On the hearing of the application, Mr Lodding relied upon his affidavit as speaking for itself.  He submitted that it should put to rest any concerns that the first respondent had acted ‘inappropriately’.

1. The appellant took no position concerning the application.

1. In the course of submissions, I asked Mr Lodding about the suggestion in his affidavit that the first respondent had ‘in effect, adopted a Hardiman position’ in respect to the appeal.[2]  His submission was that the position of the first respondent was ‘akin to Hardiman’.

   [2]Cf R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13, 35–36.

1. I also asked Mr Lodding about the following statement made in his letter dated 27 February 2021 to the Registrar of VCAT in respect of the appellant’s second VCAT action –

Please confirm by return correspondence that the application before the Tribunal is therefore dismissed.

1. Mr Lodding acknowledged that aspects of that language were ‘unfortunate’.

1. Finally, I asked Mr Lodding about the following statement in a subsequent letter dated 23 July 2019 sent to the Common Law Division of this Court –

Robert James Lawyers does not intend to take an active role in this proceeding and will merely abide the decision of the Court, save as to any order as to costs. 

1. Mr Lodding said that in proper context that meant that the first respondent would seek to be heard if the Court proposed to make a costs order against it.

1. The Court must be satisfied that it is appropriate that a certificate be granted. Such a certificate usually leads to the expenditure of public money. That said, material extrinsic to the Act might be said to support a relatively generous approach.[3]  

   [3]See generally Eureka Funds & Management Ltd v Freehills Services (No 2) [2018] VSCA 53, [7].

1. Nonetheless, the Court may decline to grant a certificate when a respondent has adopted a course that ought never to have occurred.[4]  It can also be relevant to consider whether the respondent contributed to the error made by the Tribunal.[5]

   [4]Towie v Medical Practitioners Board [2008] VSCA 157, [46].

   [5]Kukulka v Floatcast Technology Pty Ltd [2021] VSC 198, [33].

1. In the present instance, in the letter from the first respondent to the Registrar of VCAT dated 27 February 2019, the first respondent accused the appellant of ‘forum shopping’, asserted that orders had been made in the Magistrates’ Court after a ‘final hearing’ and sought confirmation ‘by return correspondence’ that the appellant’s application before the Tribunal ‘is therefore dismissed’. 

1. The letter seems to have emboldened the Tribunal thereafter to strike out the appellant’s proceeding in orders made on 18 March 2019 and again on 10 April 2019.  On neither occasion was the appellant afforded procedural fairness.  The letter did, of course, invite the Tribunal to dismiss the proceeding ‘by return correspondence’ and, implicitly, without any hearing.

1. As I have noted, Mr Lodding correctly acknowledged that aspects of the language were ‘unfortunate’.  However, for present purposes the point is the action of the first respondent appears to have contributed to the error that required the appellant to seek relief in this Court in order that it be corrected.  In an entirely neutral sense, the letter ought not to have been sent.

1. Separately, in respect of the application for leave to appeal made to this Court, the first respondent sought to adopt a position by which it determined not to participate ‘save as to any order as to costs’. 

1. As I have noted, Mr Lodding submitted that the position of the first respondent was ‘akin to Hardiman’.  He did not identify or rely upon any authority in support of that submission.  In submissions, Mr Lodding acknowledged that the first respondent was not a decision making tribunal.

1. The relevant passage in the reasons of the High Court in Hardiman[6] reads as follows –

There is one final matter.  Mr Hughes was instructed by the Tribunal to take the unusual course of contesting the prosecutors’ case for relief and this he did by presenting a substantive argument.  In cases of this kind the usual course is for a tribunal to submit to such order as the court may make.  The course which was adopted by the Tribunal in this Court is not one which we would wish to encourage.  If a tribunal becomes a protagonist in this Court there is a risk that by doing so it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted.  The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal.

[6](1980) 144 CLR 13, 35–36.

1. That passage does not engage the circumstances of a respondent in the position of the first respondent.  The first respondent was a substantive protagonist below.  It sought the orders from which the appellant applied for leave to appeal and, ultimately, successfully appealed.  It had the benefit of those orders.

1. It may be acknowledged that, on the appeal, the expressed intention of the first respondent was to abide the decision of the Court, save as to costs.  However, this did not otherwise place the first respondent in a position ‘akin to Hardiman’.  It was and is not a tribunal and was and is not embraced by the considerations of policy spoken of by the High Court in Hardiman.

1. Separately, any benefits thought to accrue to the administration of justice by the adoption of such a stance by a substantive respondent are probably superficial, at best.  The practical position is that by adopting such a stance a substantive respondent avoids facing up to and consenting to the prompt disposition of an application for leave to appeal when error has occurred.  Such an approach is apt to lead to wasting the time of the parties and the Court, as well as apt to put the appellant party to unnecessary expense.  When thought through, it is not obvious that such an approach is readily reconcilable with the overarching obligations stated in the Civil Procedure Act 2010 (Vic). That said, as these particular aspects were not fully argued, I say nothing further about them and do not rely upon them in respect to the present application.

1. For present purposes, it is sufficient to observe that the first respondent contributed to the error of the Tribunal and was not truly in a position ‘akin to Hardiman’.  In the circumstances, the first respondent’s application for the grant of an indemnity certificate must be refused.

1. The costs of the present application should be within the order by which the first respondent was ordered to pay the costs of and incidental to the appeal.