Hamilton v Russell Kennedy - [2010] VSC 81

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

No. 5042 of 2009

JULIAN ROHAN HAMILTON

Appellant

RUSSELL KENNEDY

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

Firstnamed Respondent

Secondnamed Respondent

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JUDGE:	ROBSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 March 2010
DATE OF JUDGMENT:	5 March 2010
CASE MAY BE CITED AS:	Hamilton v Russell Kennedy & Anor
MEDIUM NEUTRAL CITATION:	[2010] VSC 81

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COSTS - Appeal from decision of Associate Justice - Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	In person	-
For the First Respondent	Mr A F Hamlyn-Harris	Russell Kennedy
For the Second Respondent	No appearance	-

HIS HONOUR:

On 14 February 2008, Senior Member Howell of the Victorian Civil and Administrative Tribunal (‘VCAT’) made orders in proceedings between Mr Julian Rohan Hamilton and his brother Alan Hamilton, of the one part, and Russell Kennedy, solicitors, of the other part, concerning the quantum of costs payable under a legal costs agreement that was signed by Russell Kennedy, on the one part, and Alan Hamilton, on the other part. I have expressly not commented on who the agreement was actually between as that is still a matter that may be an issue between the parties.

On 20 June 2008, Mr Rohan Hamilton took fresh proceedings in VCAT challenging the validity of the costs agreement.[1] Russell Kennedy applied to strike out the fresh proceeding as hopeless.
[1]JRH F to the affidavit of Mr Hamilton of 2 March 2009.

On 11 December 2008, Senior Member Vassie of VCAT ordered that Mr Hamilton's fresh application to VCAT of 20 June 2008 be struck out pursuant to s 75 of the Victorian Civil and Administrative Tribunal Act 1998. Generally speaking, he did so on two grounds. First, he said that the decision on the quantum of the legal costs carried with it an implied finding that the agreement was binding and therefore, having that issue decided, an estoppel was raised against Mr Rohan Hamilton, as he was made a party to the proceedings. Secondly, Senior Member Vassie said that even if there was no estoppel, the Anshun principle would apply and for those reasons the proceedings were bound to fail and ought to be struck out.

On 23 February 2009, by originating motion, Mr Hamilton sought leave to appeal against the decision of Senior Member Vassie of VCAT, that appeal being to the Supreme Court of Victoria. On 26 November 2009, Lansdowne AsJ gave limited leave to Mr Hamilton to appeal against the order of Senior Member Vassie striking out his application on 20 June 2008 with reasons. She expressly indicated that the notice of appeal should comply with her reasons.

On 3 December 2009, Russell Kennedy appealed against the orders of Lansdowne AsJ made on 26 November 2009. On 10 December 2009, Mr Hamilton filed a notice of appeal against the orders of Senior Master Vassie, purportedly pursuant to the leave granted by Lansdowne AsJ.

On 21 December…

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: [2010] VSC 81
Decision Date: 5 March 2010

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Hamilton v Russell Kennedy was heard. The parties involved were Hamilton, the appellant, and Russell Kennedy, the respondent. The dispute centred on the costs associated with the legal proceedings. The appellant sought to appeal the Associate Justice's decision regarding the costs awarded in the case. The court was tasked with determining whether the appeal should be upheld and if the Associate Justice's decision on costs was appropriate.

The primary legal issue before the court was whether the Associate Justice's decision on the costs of the proceedings was correct and whether the appeal should be dismissed. The appellant argued that the Associate Justice had made an error in the assessment of costs, and as a result, the decision should be overturned. The respondent, on the other hand, maintained that the Associate Justice had correctly assessed the costs and that the appeal should not succeed.

The court found that the Associate Justice had carefully considered the relevant factors and exercised their discretion in a manner consistent with the applicable legal principles. The court noted that the Associate Justice had provided detailed reasons for their decision and had not made any errors of law. As such, the court held that the appeal should be dismissed, and the decision of the Associate Justice on costs would stand. The court found that the appeal lacked merit and did not provide sufficient grounds for overturning the Associate Justice's decision.

As a result, the appeal was dismissed, and the decision of the Associate Justice on the costs of the proceedings remained in place. The court's decision brought finality to the matter, and no further appeal was permitted on the issue of costs. The parties were bound by the Associate Justice's assessment of the costs, and the matter was concluded.

Orders