Hamilton v Russell Kennedy Pty Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2014 00047

JULIAN ROHAN HAMILTON	Appellant
v
RUSSELL KENNEDY PTY LTD	Respondent

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JUDGE:	DERHAM AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	14 March 2014
DATE OF JUDGMENT:	15 December 2014
CASE MAY BE CITED AS:	Hamilton v Russell Kennedy Pty Ltd
MEDIUM NEUTRAL CITATION:	[2014] VSC 630	First Revision: 16 February 2015

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APPEAL – Appeal from Magistrates’ Court – Whether questions of law appropriately and sufficiently disclosed – No questions of law disclosed – Magistrates’ Court Act 1989, s 109.

PRACTICE AND PROCEDURE – Self-represented litigant a barrister – Extent to which Associate Judge required to assist self-represented litigant.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	In person
For the Respondent	Mr A Hamlyn-Harris	Russell Kennedy

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Affidavits............................................................................................................................................. 1

Self-Represented Litigant................................................................................................................. 3

Background Facts............................................................................................................................... 5

The Application in the Magistrates’ Court................................................................................ 5
History of the Proceedings.......................................................................................................... 6
The Costs Proceeding......................................................................................................... 8
Invalidity Proceedings...................................................................................................... 10
Application for Leave to Appeal the SM Vassie Decision.......................................... 11

The Magistrate’s Reasons............................................................................................................... 14

Applicable law.................................................................................................................................. 17

Submissions and Consideration................................................................................................... 18

Russell Kennedy......................................................................................................................... 18
Rohan Hamilton’s Submissions................................................................................................ 20
The Notice of Appeal................................................................................................................. 23
Question 1 and Ground 1................................................................................................. 23
Consideration........................................................................................................ 24

Question 2 and Ground 2................................................................................................. 26
Consideration........................................................................................................ 26

Question 3 and Ground 3................................................................................................. 26
Consideration........................................................................................................ 27

Question 4 and Ground 4................................................................................................. 28
Consideration........................................................................................................ 28

Question 5 and Ground 5................................................................................................. 28
Consideration........................................................................................................ 29

Question 6 and Ground 6................................................................................................. 29
Consideration........................................................................................................ 30

Question 7 and Ground 7................................................................................................. 30
Consideration........................................................................................................ 30

Question 8 and Ground 8................................................................................................. 31
Consideration........................................................................................................ 31

Rohan Hamilton’s Central Issue................................................................................................... 32

Conclusion......................................................................................................................................... 36

HIS HONOUR:

Introduction

The Appellant (‘Rohan’) has filed a Notice of Appeal[1] against a decision of the Magistrates’ Court of Victoria, at Melbourne, striking out and permanently staying a proceeding commenced by him against, amongst others, the Respondent (‘Russell Kennedy’).[2]
[1]Filed 9 January 2014.
[2]Proceeding No C12914531. The Magistrates’ Court of Victoria was served with the Notice of Appeal and by letter dated 13 January 2014 entered an appearance and advised that it did not intend to take an active role in the proceeding and will abide by the decision in R v Australian Broadcasting Tribunal ex parte Hardiman & Others.

The questions of law in the Notice of Appeal, and the grounds advanced in support of them, are difficult to follow and have been attacked by Russell Kennedy as not identifying any question of law, sufficiently or at all. Russell Kennedy accordingly applied under rule 58.10(8) of the Supreme Court (General Civil Procedure) Rules 2005 (‘the Rules’) for the appeal to be dismissed.

The orders of the Magistrates’ Court were made by Magistrate Braun on 10 December 2013. The Notice of Appeal was filed in accordance with the Rules on 9 January 2014. In substance, Magistrate Braun struck out and permanently stayed the Magistrates’ Court proceeding on the basis that it did not disclose a cause of action.

I have concluded, for the reasons set out below, that Rohan’s Notice of Appeal:

(a) Does not identify sufficiently or at all a question of law on which the appeal may be brought; and

(b) Does not raise an arguable case on appeal, and to refuse leave would impose no substantial injustice.

Affidavits

For the purposes of the appeal, Rohan primarily relied upon an affidavit sworn by him on 16 January 2014 (and re-sworn with amendments on 17 January 2014) which exhibited the order under appeal, and the reasons for that order, of Magistrate Braun made on 10 December 2013. Later he filed and served an affidavit sworn by him on 28 February 2014, which merely exhibited correspondence.

Russell Kennedy filed:

(a) The affidavit of Robert Anthony Ewing sworn 30 January 2014 (Second Ewing Affidavit) to which was exhibited the essential materials, including the amended complaint before the Magistrate, the notice of defence, the summons to strike out the proceeding, the affidavit of Mr Ewing in support of that application before the Magistrates’ Court sworn on 4 December 2013, together with exhibits RAE-1 to RAE-14 (‘First Ewing Affidavit’), and the order made by Magistrate Braun on 10 December 2013 and a subsequent order made by him on 8 January 2014; and

(b) The affidavit of Ross Fraser Hodgens sworn 14 February 2014 (‘Hodgens’ Affidavit’).

The affidavits filed on behalf of Russell Kennedy raise disputes as to the underlying facts on which Rohan’s Notice of Appeal proceeds. Russell Kennedy particularly complained that, contrary to Rule 58.09(1), Rohan’s affidavit in support sworn 16 January 2014 does not set out properly, or at all, the acts, facts and circumstances relating to the grounds in the Notice of Appeal. Rather it is largely a retelling, from Rohan’s point of view, of the previous proceedings in the Victorian Civil and Administrative Tribunal (VCAT) and in the Supreme Court and contains little material dealing with the hearing before Magistrate Braun, which is only mentioned late in the affidavit.

Rohan’s affidavit also makes irrelevant assertions and arguments,[3] and includes asides and opinions concerning Mr Ewing that verge on the scandalous.[4] Various matters in the affidavit are responded to by the Second Ewing Affidavit. The disputes are not critical to the determination of the application. I refer to some of them in the context of the Background Facts.
[3]For example, claims are made in paragraphs 22, 23 & 25 of the affidavit about a VCAT website and an assertion that costs disputes and challenges to costs agreements could not be dealt with at the same time, which issue is not relevant, as it does not appear in, nor is it capable of appearing in, the Notice of Appeal. Another example is in paragraph 38 where it is said that Magistrate Braun ‘did not have the time to fully consider the matter’.
[4]For example, at paragraph 27 he asserts that ‘it is difficult to escape the conclusion that the actions of Mr Ewing were a great abuse of process’.

Self-Represented Litigant

Rohan appeared in person both to seek directions for the hearing of his appeal, (if the Court determined there were appropriate questions of law to go forward), and to respond to the application by Russell Kennedy to dismiss the appeal. He is, however, a barrister and solicitor of this Court, and he signed the Victorian Bar Roll in 1998. He is, therefore, expected to have sufficient knowledge, skill and experience of the law and civil procedure to carry through his proposed appeal without assistance from the Court, particularly as he acted for himself in all the proceedings to which reference is made below, which have resulted in two reasoned decisions of Senior Members of VCAT, two reasoned decisions of Lansdowne AsJ,[5] three published decisions in this Court,[6] and two decisions in the Court of Appeal.[7]
[5]Hamilton v Russell Kennedy (Unreported) 26 November 2009, exhibit RAE-5 to the First Ewing affidavit; Hamilton v Russell Kennedy Pty Ltd (No 4) 29 March 2012 (unreported) exhibit RAE-11 to the First Ewing affidavit.
[6]Hamilton v Russell Kennedy Pty Ltd & Anor [2010] VSC 81 (Robson J); Hamilton v Russell Kennedy Pty Ltd (No 3) [2012] VSC 189 (Lansdowne AsJ); Hamilton v Russell Kennedy Pty Ltd (a firm) [2012] VSC 176 (Emerton J).
[7]See exhibits RAE-10 and RAE-13 to the First Ewing affidavit.

A judge has a duty in relation to represented and unrepresented litigants alike to ensure that the trial is conducted fairly and in accordance with law.[8] It is a frequent consequence of self-representation that the Court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy.[9] What a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant’s intelligence and understanding of the case.[10] The judge cannot be the advocate of the self-represented litigant, for the role of the judge is fundamentally different to that of an advocate. The judge must maintain the reality and appearance of judicial neutrality at all times and to all parties, represented and self-represented. The assistance must be proportionate in circumstances — it must ensure a fair trial, not afford an advantage to the self-represented litigant: per Bell J in Tomasevic v Travaglini.[11]
[8]MacPherson v The Queen (1981) 147 CLR 512, 523; Dietrich v R (1992) 177 CLR 292; Werden v Legal Services Board (2012) 36 VR 637, [53].
[9]Neil v Nott (1994) 68 ALJR 509, 510; 121 ALR 148, 150; Minogue v HREOC (1999) 84 FCR 438, [27]-[29] and [33]; Platcher v Joseph [2004] FCAFC 68, [104].
[10]Abram v Bank of New Zealand (1996) ATPR 42340, 42347; Minogue v HREOC (1999) 84 FCR 438, [27]-[29] and [33]; Platcher v Joseph [2004] FCAFC 68 [104]; Tomasevic v Travaglini (2007) 17 VR 100, 130.
[11](2007) 17 VR 100, 130.

In Rajski v Scitec Corporation Pty Ltd[12] Samuels JA said:

In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent … At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement … An unrepresented party is as much subject to the rules any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.

[12]Unreported, Court of Appeal, NSW, Full Court, No CA 146 of 1986, (16 June 1986), 14.

I have sought during the hearing, and in considering the facts and arguments, to apply these tenets in the determination of the application by Russell Kennedy to dismiss the appeal, paying due regard to the status and occupation of Rohan as a barrister and his assumed (but proved not to be) knowledge of the law and procedure. In particular, because the Notice of Appeal was difficult to follow (see below) and the affidavit in support was deficient in major respects (and also difficult to follow), I questioned Rohan to elucidate the best case he could articulate. At the same time I gave Counsel for Russell Kennedy every opportunity to respond and deal with the material of which proper notice was given, as well as the new material that emerged in the course of argument.

Background Facts
The Application in the Magistrates’ Court

Rohan’s complaint in the Magistrates’ Court was filed on 16 October 2012, but not served until about one year later. The hearing which led to Magistrate Braun’s orders was the hearing of an application by Russell Kennedy in which it sought to dismiss, pursuant to Magistrates’ Court Rule 23.01,[13] the complaint made by Rohan against Russell Kennedy, Ross Fraser Hodgens and Robert Anthony Ewing.[14] Russell Kennedy had applied to dismiss the proceeding in the Magistrates’ Court on the basis that:
[13]Under this rule, as with the corresponding rule in the Supreme Court (General Civil Procedure) Rules 2005, evidence may be introduced by the defendant so as to establish that the claim has no merit or prospects of success: see r 23.04 of the Magistrates’ Court General Civil Procedure Rules 2010.
[14]Summons dated 4 December 2013.

(a) It did not disclose a cause of action;

(b) It is scandalous, frivolous or vexation; and

(c) It is an abuse of the process of the Court.

In the affidavit in support of that application, the First Ewing affidavit, the grounds were expanded on as follows:

(a) The proceeding was an abuse of process of the Court because it sought to re-litigate matters already the subject of previous proceedings, decisions, reasons and orders of VCAT, the Supreme Court and the Court of Appeal dating back as far as 2008 and which matters are therefore the subject of res judicata and issue estoppel;

(b) It is a contempt of VCAT, the Supreme Court and the Court of Appeal, as it seeks to frustrate the application and operation of orders made by each of them and thereby to bring the administration of justice into disrepute;

(c) It does not disclose a cause of action; and

(d) Other grounds related to specific matters asserted in the material in support.

In making the application to dismiss the complaint, Russell Kennedy relied upon the First Ewing Affidavit. That affidavit contains (at [5]) a broad summary of the history which gave rise to the application to dismiss, which accurately sets the scene for what follows:

…The dispute between the parties has been the subject of repetition litigation brought by Rohan Hamilton commencing in 2007, in all of which litigation he was unsuccessful. The continuing subject of the dispute is in the amount of $17,133.16 charged by Russell Kennedy in legal fees some 7 years ago in 2006. These costs were the subject of an assessment in the Victorian Civil and Administrative Tribunal …. The sum owing was paid by Rohan Hamilton’s brother, Alan Hamilton, who was a client of Russell Kennedy in respect of the matter giving rise to those costs. Rohan Hamilton is not and never had been a client of Russell Kennedy.[15]

[15]I note that in his affidavit of 16 January 2014 Rohan takes issue with this characterisation and contends that it is apt to describe Mr Ewing’s behaviour. As will emerge, it is an apt description of Rohan’s conduct.

Rohan filed no affidavit in opposition to the application to dismiss the Magistrates’ Court proceeding.[16] The only evidence was the evidence in the First Ewing Affidavit.
[16]Affidavit of Ewing of 30 January 2014 at [5].

History of the Proceedings

Rohan and his brother Alan Hamilton (‘Alan’) are the only two children of Beryl Kathleen Hamilton (‘Mrs Hamilton’). On 18 December 2002 Master Kings of the Supreme Court of Victoria (as she then was), made an Order by consent which resolved a property dispute between Mrs Hamilton and her neighbour, Jonathon Frazer White (‘Mr White’). The Order provided that the proceeding, which had been commenced by Mrs Hamilton against Mr White, was dismissed, with a right of reinstatement.

The consent by Mrs Hamilton was given in return for an undertaking by Mr White that he would remove a structure on his land that blocked light to a habitable room window located on the boundary of her land. Mr White further agreed to the creation of a restrictive covenant on his title in terms that would prevent any structure being placed in a similar position at any time in the future.

Mr White’s solicitor failed to record the required restrictive covenant on his client’s property’s title.[17] This failure to adhere to the agreed terms for discontinuation of Mrs Hamilton’s legal action went unnoticed by her legal team.
[17]A restrictive covenant was recorded but it did not prevent the erection of a ‘structure’: see the reasons of Mr Howell, reasons for decision, 14 February 2008, paragraph [7]: Exhibit RAR-1 to the Ewing Affidavit.

About 4 years later, in 2006, Mr White sought planning permission to erect a wall on his land in a similar position to the previous screening structure. Mr White’s title being unencumbered, the local Council gave planning permissions and a wall was erected.

On 16 October 2006 VCAT in its Guardianship List declared that it was satisfied that Mrs Hamilton had a disability and was unable by reason of that disability to make a reasonable judgement about her estate, and needed an administrator. It accordingly appointed Alan and Rohan as joint administrators pursuant to Part 5 Division 3 and 3A of the Guardianship and Administration Act 1986. That Order continued to have effect until further order of the tribunal and was to be reassessed no later than 1 October 2007.[18]
[18]Exhibit ‘1’, tendered on 14 March 2014.

On 17 October 2006, Alan engaged Russell Kennedy to act in relation to a dispute between Mrs Hamilton and her neighbour, Mr White. On that day Mr Ross Hodgens, a Partner at Russell Kennedy, wrote a letter to Alan confirming the instructions: ‘To act for you in this matter in your capacity as your mother’s administrator’. The letter set out materials relevant to a costs agreement under the Legal Profession Act 2004 (‘LPA’). It estimated the total legal costs, fees and disbursements and attached the terms of engagement for which set out the basis on which Russel Kennedy would act. In his affidavit in support of the Notice of Appeal, Rohan maintains that the engagement of Russell Kennedy was effected by Alan without his, Rohan’s, knowledge. It is, however, clear that Rohan participated in instructing the firm during the course of the retainer, as I refer below.

During October 2006 Rohan met with Mr Hodgens. There were disagreements between Rohan and Mr Hodgens, and between Rohan and Alan, regarding the appropriate course to be adopted. There was considerable email traffic which need not be detailed. Suffice it to say that Rohan considered going back to the Supreme Court by seeking reinstatement of the previous proceeding dismissed by Master Kings (as she then was) to be a most attractive option, whilst Mr Hodgens advised that a negotiated solution carried on under threat of new proceedings was preferable. One thing is clear from the reasons of Mr Howell referred to below, that is Alan and Rohan gave inconsistent instructions to Russell Kennedy.[19] The Hodgens Affidavit also makes clear, in some detail, that when acting for Mrs Hamilton he dealt with and sought instructions from both Alan and Rohan, but in the end was unable to obtain clear instruction from them jointly.[20] Rohan frankly conceded in the course of the application that Mr Hodgens was unable to obtain clear common instructions from them both.[21]
[19]Reasons of Mr Howell at [29]-[30].
[20]Hodgens Affidavit at [4].
[21]Transcript, 14 March 2014, p. 5.7.

On 18 January 2007, some three months after the costs agreement with Russell Kennedy, Alan terminated the engagement on the basis of perceived excessive billing and limited progress. During that period both Mr Hodgens and Mr Ewing charged for time and legal advice.

The Costs Proceeding

On 17 January 2007 Alan Hamilton lodged a costs complaint with the Legal Services Commissioner against Russell Kennedy. Mediation proved unsuccessful and the matter was referred to VCAT. Russell Kennedy’s fees were paid into a trust account by Alan before he made the complaint. The source of the funds was Mrs Hamilton.

Before the hearing commenced, Rohan wrote asking to be made a party to the proceeding. He repeated that application on the first day of what proved to be lengthy hearing in relation to the costs dispute. The basis of the application was that at all times when Alan acted as a joint administrator of Mrs Hamilton’s estate, Rohan was co-administrator and he wanted to raise the issue that Russell Kennedy had never sought his consent to their seeking injunctive relief or to the costs involved.

On 27 November 2007, after Alan’s application to VCAT but before the hearing, by Order of Guardianship List at VCAT, Alan and Rohan were replaced as joint administrators of Mrs Hamilton’s estate by State Trustees. The VCAT members hearing the costs dispute and the invalidity dispute were not told of this change.[22]
[22]See the reasons of Lansdowne AsJ in Hamilton v Russell Kennedy (Unreported) 26 November 2009, exhibit RAE-5 to the First Ewing affidavit at [13].

The VCAT hearing of Alan’s application came on before Senior Member Howell on 12 February 2008. Rohan’s application to be joined in Alan’s application was opposed by counsel for Russell Kennedy, on the basis the costs agreement was with Alan alone. That submission was rejected on the basis Mrs Hamilton was entitled to the representation of both joint administrators. Mr Howell’s reasons for joining Rohan were:

I made the order partly because Mr Rohan Hamilton, as a joint administrator of his mother’s affairs, ought to be bound by or have the benefit of any order made in the proceedings. I also made the order partly because Mr Rohan Hamilton has an obligation to protect his mother’s estate, which would be affected by the outcome of the proceedings.[23]

[23]Reasons 14 February 2008, [11]; exhibit RAR-1 to the Ewing Affidavit.

The VCAT hearing concluded on 14 February 2008. On several occasions during the hearing Rohan says:

(a) He attempted to raise the issue that the failure by Russell Kennedy to contract with both joint administrators invalidated the costs agreement and hence the basis for charging fees;

(b) Mr Howell ruled that invalidation of a costs agreement was a separate issue from the costs dispute and as such required a separate application.

Mr Ewing deposed that Rohan misdecribed what occurred. The application before Tribunal was a costs dispute under s 3.4.17 of the LPA. Any challenge to the validity of the costs agreement involved an application under s 3.4.32 of the LPA. The hearing had been fixed for a certain number of days. Mr Howell indicated to Rohan that there would not be enough time to hear a challenge to the costs agreement as well as the costs dispute. It was clear that the alternative was an adjournment. Rohan chose to proceed.

Alan’s costs application was largely unsuccessful. Senior Member Howell found that costs and interest amounting to some $18,849 were payable to Russell Kennedy.

Invalidity Proceedings

On 20 June 2008, Rohan made application to VCAT to have the Russell Kennedy costs agreement of 17 October 2006 declared null and void on the basis that it was made by Alan alone when Rohan and Alan were joint administrators.

On 20 July 2008 Mrs Hamilton died. Probate of her Will was not granted to Rohan until 14 July 2010.[24] The other executor named in the Will was Alan. He did not prove the Will, but leave was reserved to him to come in and prove it.[25]
[24]Copy Probate Certified on 19 July 2010, being Exhibit ‘4’ tendered at the hearing on 14 March 2014; Hamilton v Russell Kennedy Pty Ltd (a firm) [2012] VSC 176, [22] (Emerton J).
[25]Copy Probate Certified on 19 July 2010, being Exhibit ‘4’ tendered at the hearing on 14 March 2014.

On 11 December 2008 Senior Member Vassie heard Russell Kennedy’s application to strike out the proceeding under s 75 of the Victorian Civil and Administrative Tribunal Act 1998. The basis was that the proceeding was an abuse of process. Senior Member Vassie struck out the proceeding then and there, giving oral reasons. Pursuant to a request, he delivered written reasons on 20 January 2009.

The essential basis for the decision was that the determination of the costs dispute by SM Howell created an issue estoppel, covering those matters which the determination necessarily established as the legal foundation or justification of the conclusion that the solicitors were entitled to their costs: relying upon Blair v Curran.[26] He found that the legal foundation for the determination by SM Howell included a valid and enforceable costs agreement. Rohan was therefore estopped from putting the validity of the costs agreement in issue. In consequence it was an abuse of process for Rohan to attempt to raise for fresh adjudication the validity of the costs agreement.
[26](1939) 62 CLR 464, 531.

In the event that he was wrong in concluding that there was an issue estoppel, SM Vassie also considered the position arising under Anshun estoppel.[27] He concluded that Rohan could have, but did not, bring forward during the hearing before SM Howell the validity of the costs agreement. Significantly SM Vassie quoted from Rohan’s affidavit that was before him where, in paragraph 7, he deposed:

On 14 February 2008 and very soon after the commencement of the hearing, I raised the issue that there was no basis for the respondent to charge legal fees because, by contracting with my brother alone, the respondent had ignored legal obligations owing to the represented person (our mother) that arose under her Joint Administration. The Senior Member indicated that this was not an issue that could be addressed as part of my brother’s application as he had not raised it. The Senior Member further stated that though it could be heard as an amendment to my brother’s application, his current schedule was tight. I understood from the Senior Member’s response that there was insufficient time to have the amendment heard as part of the current hearing. I resolved to bring the issue before VCAT if my brother’s application was unsuccessful.

[27]Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, 598.

SM Vassie concluded that what Rohan had resolved to do was something which, by virtue of the principle expressed in Anshun, the law does not permit. He therefore concluded that the Anshun principle created an unanswerable defence to the claim made in the proceeding.

Application for Leave to Appeal the SM Vassie Decision

On 23 February 2009 Rohan commenced a proceeding in the Supreme Court seeking leave to appeal the summary dismissal Order of Senior Member Vassie.

On 26 November 2009 Lansdowne AsJ granted Rohan leave to appeal in respect of questions of law in accordance with her reasons for judgment. Russell Kennedy appealed that decision.

Her Honour found two arguable grounds for leave to appeal from the decision of SM Vassie, as follows:

(a) That it was arguable there was an error of law by SM Vassie in concluding that an issue estoppel arose from the determination of the validity of the costs agreement before SM Howell because SM Howell specifically indicated he was not dealing with that issue; and

(b) That it was arguable that it was the Tribunal and not Rohan who determined that the invalidity of the costs agreement would not be determined in the proceeding before SM Howell and that it was arguable that SM Vassie was in error in concluding that the Anshun estoppel applied.

On 3 December 2009, Russell Kennedy appealed the decision of Lansdowne AsJ. On 10 December 2009 Rohan filed a Notice of Appeal purportedly in accordance with the reasons given by Lansdowne AsJ. By letter dated 15 December 2009 Russell Kennedy put Rohan on notice that at the hearing of the appeal additional matters would be raised going to the jurisdiction of SM Vassie to hear Rohan’s application.

On 21 December 2009, Russell Kennedy’s appeal came on for hearing before Davies J and was dismissed. Her Honour however did refer an issue going to the contents of Rohan’s revised Notice of Appeal back to her Honour Associate Justice Lansdowne for resolution.[28] On 22 December 2009 Russell Kennedy issued a summons for an order that the Notice of Appeal be struck out.
[28]See the reasons for decision of Lansdowne AsJ in Hamilton v Russell Kennedy Pty Ltd (No 3) [2012] VSC 189, [2] (included as exhibit RAE-9 to the First Ewing Affidavit).

On Russell Kennedy’s application, on 23 February 2010 Lansdowne AsJ struck out Rohan’s revised Notice of Appeal, which had been filed on 10 December 2009, with leave granted to ‘re-plead’. Her Honour further gave Rohan until 16 March 2010 to respond to the submissions by Russell Kennedy that VCAT lacked jurisdiction to determine his original application to VCAT of 20 June 2008, such that his Supreme Court proceeding should be summarily dismissed.[29]
[29]Exhibit RAE-7 to the First Ewing Affidavit.

This order (of Lansdowne AsJ made on 23 February 2010) was appealed by Rohan, but seemingly the appeal was limited to allegedly inconsistent orders as to costs.[30] On 5 March 2010, Robson J dismissed the appeal and “confirmed, approved, sanctioned and remade” the orders made by Lansdowne AsJ.[31] Rohan sought leave to appeal the order of Robson J. The Court of Appeal refused that leave on 28 May 2010.[32] At that point the proceeding should have come back to her Honour Associate Justice Lansdowne, but due to some error of the parties, the Court did not do so.
[30]Hamilton v Russell Kennedy Pty Ltd & Anor [2010] VSC 81 (Robson J).
[31]Exhibit RAE-8 to the First Ewing Affidavit.
[32]Exhibit RAE-10 to the First Ewing Affidavit.

Lansdowne AsJ published her reasons for the orders made on 23 February 2010 on 20 March 2012. Her Honour found Senior Member Vassie of VCAT had no jurisdiction to hear Rohan’s application of 20 June 2008 because at that time he was neither an administrator of his mother's estate, Mrs Hamilton being then alive, nor her executor after her death at the relevant time. Rohan did not satisfy the jurisdiction requirement that he be a ‘client’ as defined in the LPA and within the meaning of s 3.4.32 of the LPA in force at the time.[33] Her Honour found that as such there was no need to further consider his application to ‘re-plead’ the Notice of Appeal.[34]
[33]Hamilton v Russell Kennedy Pty Ltd (No 3) [2012] VSC 189, [48] (exhibit RAE-9 to the First Ewing Affidavit).
[34]Ibid [52].

The Order giving effect to the judgment of Lansdowne AsJ was made on 29 March 2012.[35] Rohan’s case against Russell Kennedy was dismissed and he was required to pay the costs of the appeal, including all reserved costs.
[35]Exhibit RAE-11 to the First Ewing Affidavit.

On 2 April 2012 Rohan appealed the Orders of Lansdowne AsJ dated 29 March 2012. On 16 April 2012 his appeal was heard in the Practice Court before Emerton J. On 4 May 2012 her Honour handed down judgment dismissing the appeal. Specifically Emerton J found that Rohan’s application to VCAT of 20 June 2008 to invalidate the costs agreement was beyond the jurisdiction of the Tribunal, given that at that time he was neither an administrator nor an executor, that he had to be either a ‘client’ of Russell Kennedy’s, for the purposes of s 3.4.32 of the Legal Profession Act, or an associated third party payer under the extended definition of ‘client’ in s 3.4.26(6).

Her Honour found that Rohan was not a ‘client’ in that the legal services under the Russell Kennedy fees agreement were not provided to him because he was not a party to the agreement. Her Honour found that the legal services were provided to or for Mrs Hamilton, or to his brother. Her Honour further found that Rohan was not an associated third party payer, again because he was not a party to the costs agreement.[36]
[36]Hamilton v Russell Kennedy Pty Ltd (a firm) [2012] VSC 176, [43]-[56].

The Magistrate’s Reasons

Magistrate Braun determined that the statement of claim and the complaint should be struck out and stayed. The basis for his decision was that despite careful consideration, he could find no basis for the proceeding. He was satisfied that all the issues that Rohan wished to agitate in the Magistrates’ Court had been dealt with by not only two members of VCAT but also by various members of the Supreme Court, including the Court of Appeal. He made the following further observations.

In relation to the statement of claim, he said that it is simply an extensive, elaborate and indeed lengthy statement of facts and evidence which do not point to a cause of action until one gets to about paragraph 45, in which one sees the complaint as being a failure by Russell Kennedy to inform Rohan that Alan had approached them to represent the interests of their mother in relation to a neighbourhood dispute. At paragraph 45 of the statement of claim it was alleged:

The failure of Russell Kennedy through …Mr Hodgens to seek my signed acceptance to the work as outlined in the costs agreement, and at the rates nominated, has resulted in significant financial losses to the estate of my late mother, and to my brother and myself personally. The failure by Russell Kennedy to meet its legal obligations to both VCAT and my late mother could have been corrected soon after the signing of the costs agreement by the intervention of … Mr Ewing who was familiar with the matter almost from inception. Instead Mr Ewing compounded the legal error, and resulting expenses and costs, by insisting that all relevant times that the costs agreement had nothing to do with the estate or legal rights of our late mother, or her joint administration but was at all times intended to be a contract between my brother alone and Russell Kennedy. This is despite Mr Ewing’s full knowledge that the first line of the costs agreement, which is addressed to my brother, states: ‘Thank you for instructing us to act for you in this matter in your capacity as your mother’s administrator’. [emphasis added in the original]

Further, according to the learned Magistrate:

(a) It was not said by Rohan that Alan had acted without his consent or knowledge in appointing Russell Kennedy. What is said is that Russell Kennedy simply failed to have Rohan sign a costs agreement with Alan;

(b) Rohan argued that because he was not a signatory to the costs agreement, he was deprived of his opportunity to carry out his duties at law as an administrator. Rohan was unable to produce any authority to support his contention and the reality of the matter is, whether he signed the costs agreement or not, and therefore whether or not Russell Kennedy could hold him accountable under it, does not interfere with his opportunity and his obligation to act in accordance with the duties imposed on him under the law as an administrator of his mother’s estate;

(c) He clearly knew what was going on in relation to the activities of Russell Kennedy in acting for his mother. Indeed he complained that he was not paid sufficient attention;

(d) It was clear that there was no logical or legal connection between the failure of Russell Kennedy to have Rohan as a party to the costs agreement and the costs paid to Russell Kennedy pursuant to the order of SM Howell or the costs that have been wasted or at least incurred in the course of multiple proceeding before VCAT and the Supreme Court;

(e) The expenditure of the fees which Rohan sought to recover in the proceeding were due to him introducing himself into the proceedings. He could have compelled his brother Alan to desist from the course that was being undertaken which resulted in the incurring of the costs due to Russell Kennedy, and he could have acted to prevent Russell Kennedy continuing to act. But he took no such steps;

(f) The fact that the costs ordered to be paid to Russell Kennedy came out of the estate of his mother did not give him standing to challenge the bill of costs, especially since at the time that SM Howell was required to give a decision, he and his brother were no longer administrators of the estate of their mother, having been replaced by State Trustees; and

(g) SM Vassie was not aware of the fact that Rohan was at the time that he made his application neither an administrator under the guardianship order nor an executor under the Will of his mother. Had he been so aware he would not have been able to entertain the application.

In the statement of claim Rohan sued personally and as executor of the estate of his deceased mother, Mrs Hamilton. The relief claimed in the statement of claim was as follows:

(a) Return by Russell Kennedy to Rohan as the executor of the estate of his late mother all monies received under the costs agreement. Alternatively, that these monies be made good by Messrs Hodgens and Ewing personally, in whatever proportions the Court deems fit; and

(b) Waiver by Russell Kennedy of all costs and expenses awarded in the judgments of Emerton J and Warren CJ and Mandie JA. Alternatively, that all these costs and expenses be met personally by Messrs Hodgens and Ewing in whatever proportions the Court deems fit.

The ‘pleading’ of the material facts, if it can be called that, was, as I have said, described by the learned Magistrate, correctly in my view, as “an extensive, elaborate and indeed lengthy statement of facts and evidence which do not point to a cause of action until one gets to about paragraph 45”, and even then it is entirely unclear how breach of the alleged duty could be said to have caused the loss and damage claimed.

Applicable law

A party to a civil proceeding in the Magistrates’ Court of Victoria may appeal to the Supreme Court, on a question of law, from a final order of the court in that proceeding: Magistrates' Court Act1989, s 109. The appeal is instituted by filing a notice of appeal: r 58.07. The notice must state the questions of law on which the appeal is brought and the grounds of appeal: r 58.08(1)(b)(iii), (iv). The appellant is required within seven days after filing the notice of appeal to file an affidavit (r 58.09(1)), and to apply to an Associate Judge by summons for directions: r 58.10(1).[37]
[37]Tankard v Chafer [2005] VSC 171, [10]; Williams, Civil Procedure Victoria at I 58.06.0.

An appeal under s 109 is an appeal in the strict sense, and it is not, in any form, a re-hearing.[38] It is necessary for the appellant to be able to identify a relevant error of law, made by the Magistrate, before it is entitled to relief from this Court.
[38]Carter v Reid [1992] 1 VR 351, 363 (Hedigan J); Fiorelli Properties Pty Ltd v Professional Fencemakers Pty Ltd & Anor [2011] VSC 661, [43].

Rule 58.08 of the Rules provides:

(1)       A notice of appeal under this Part shall –
(a)       be in writing signed by the appellant or appellant’s solicitors;
(b)       set out or state –
(i)        the order which is the subject of appeals;
(ii)whether the appeal is from the whole or part only of the order and, it so, what party;

(iii) the question of law upon which the appeal is brought;
(iv) concisely the grounds of appeal;
(v)the order sought in place of that from which the appeal is brought; and

(c)at its end name all the persons on whom it is proposed to serve the notice of appeal.

(2)the Court may give leave to amend the grounds of appeal or make any other order to ensure the proper determination of the appeal.

Rule 58.10 includes as sub rule (8) the following:

The Associate Judge may dismiss the appeal if satisfied that –
(a)the notice of appeal does not identify sufficiently or at all a question of law on which the appeal may be brought;
(b)the appellant does not have an arguable case on appeal and to refuse leave would impose no substantial injustice; or
(c)the appeal is frivolous, vexatious or otherwise an abuse of the process of the Court.

Submissions and Consideration
Russell Kennedy

Russell Kennedy submitted that, contrary to Rule 58.10(8)(a), the Notice of Appeal does not identify a question of law sufficiently, or at all. Each of the eight so-called questions of law are merely a recital of a finding by the learned Magistrate and is not even in the form of a question, let alone a question framed in the way required for a question of law in an appeal. Further:

(a) No principles of law are identified for consideration;

(b) When read with the related grounds set out in the Notice, the most that is raised is whether a particular finding is ‘an error of law’, which is not a proper question of law;[39]
[39]Hartnett v Migration Agents Registration Authority [2004] FAC 50, [49].

(c) The formulation employed rather serves to ‘cloak’ what is sought to be put in issue, instead of identifying it;[40]
[40]Vidovich v Mildura Rural City Council [1999] 2 VR 399, 410.

(d) Contrary to Rule 58.8(1)(b)(iv), the eight grounds set out in the Notice are not concise, they do not set out a proper basis for their related ‘question of law’, they largely consist of argument and of repeating some of the assertions from the Magistrates’ Court Amended Complaint that are not supported by any actual evidence, they are unclear and ambiguous and do not set out any basis whereby the Magistrate could not have made the finding he has made but merely disagree with his decision;

(e) In each case, the question leaves the answer ‘at large’, which is also not permitted;[41]

(f) It is not for the Respondent or the Court to have to guess what is meant by the Notice of Appeal; and

(g) Questions 2 & 6, and probably most of the questions of law, appear to deal with matters of fact rather than law.

[41]Victorian WorkCover Authority v CE Heath Underwriting and Insurance (Australia) Pty Ltd (Re Green) (No 2) (1995) 8 VAR 328.

Russell Kennedy also made submissions:

(a) Regarding whether the questions of law and their respective grounds, as set out in the Notice of Appeal, in fact raised any question of law, and I deal with these submissions in the context of my consideration of each ground as set out later in these reasons;

(b) As to the submissions made by Rohan, as set out below, regarding the proposition that his claim in the Magistrates’ Court was a claim in negligence against Russell Kennedy. In short, it was submitted that there is no proper claim for negligence set out in the statement of claim, and this was not just a matter of form. There is no clear claim of the duty of care, to whom it is owed, what constitutes the breach and nor is there any claim for damages; and

(c) As to the position of a costs agreement under the LPA, identification of the client, the identification of the third party payer, the distinction between the costs agreement and the retainer[42] and the misconception in Rohan’s contention concerning the alleged invalidity of the costs agreement arising from the alleged failure of Russell Kennedy to ensure that Rohan, as joint administrator of his mother’s affairs, was a party to it.

[42]As to which see for example Sunland Waterfront (BVI) Ltd & Anor v Prudentia Investments Pty Ltd & Ors (No 4) [2013] VSC 669, [86].

These matters are dealt with further in the course of my consideration of the Notice of Appeal and Rohan’s other contentions and submissions.

Rohan Hamilton’s Submissions

Rohan’s written submissions were presented in three parts, as follows:

(a) A legal argument in support of his questions of law;

(b) Submissions addressing issues associated with the costs agreement as impacted by the legal requirements under the Guardianship and Administration Act 1986 where there is a joint administration and the relevance of this to the first VCAT hearing before SM Howell; and

(c) Matters arising from the second VCAT hearing before SM Vassie and subsequent relevant Supreme Court hearings resulting from Rohan’s appeal on questions of law from the summary dismissal finding of SM Vassie.

In relation to the second and third parts of the submission, Rohan advanced the proposition that the legal performance of Russell Kennedy was so significantly below the standard expected of any legal entity, let alone a large corporate law firm, that coupled with actions that could easily be categorised as an abuse of process, that all monies paid by Rohan to Russell Kennedy should be refunded. The legal characterisation to be given to that proposition was, however, lacking.

In argument, however, Rohan advanced the proposition that the claim against Russell Kennedy was for damages for breach of a duty of care, that is, a simple case of negligence based on the firm entering into the costs agreement with only one joint administrator when it should have entered into the agreement with both.[43] The duty was not to act upon a retainer by only one of the joint administrators of the client’s, Mrs Hamilton’s, affairs. The duty was owed to his mother, Mrs Hamilton,[44] and also to himself.[45] Beyond the basic proposition, which was not disputed by Russell Kennedy, that joint administrators must act jointly, that is together and unanimously, there was no analysis of the alleged duty, its breach and how the loss or damage claimed could be said to have been caused by any breach. In particular there was no pleading of such a duty in clear terms.
[43]Transcript, 14 March 2014, p.8-9, 40.14-19, 46-47
[44]Transcript, 14 March 2014, p.8-9
[45]Transcript, 14 March 2014, p.23, 24-30.

Under the heading ‘questions of law’ Rohan referred to two cases, Australian Coal & Shale Employees’ Federation v The Commonwealth & Ors[46] and Plaintiff S157/202 v Commonwealth of Australia.[47] Both decisions refer to errors consisting of acting upon a wrong principle, giving weight to extraneous or irrelevant matters, or failing to give sufficient weight to relevant considerations, or making a mistake as to the facts. The reliance on these authorities seems to have been directed to establishing questions of law based upon the proposition that the Magistrate’s findings of fact was so unreasonable or plainly unjust, or glaringly improbable, that the appellate court may infer that there has been a failure to properly exercise the discretion which the law reposes in the Magistrates’ Court.
[46](1953) 94 CLR 621.
[47][2003] HCA 2, [13].

It was then submitted as follows:

…That as a direct result of the highly inflammatory completely erroneous affidavit of … Mr R Ewing, dated 4 December 2013, coupled with a summary hearing by way of strike out application of my complaint, that his Honour Braun J [sic] fell into manifest error in the findings of fact given as the basis for dismissing my complaint. In particular I refer to the specific allegations of … Mr Ewing that everything the subject of my complaint had already been adjudicated upon in numerous forums. That submission was completely specious. The subject matter of my complaint, and which is before this Court, has never previously been accorded legal consideration by any court or tribunal.

Rohan then proceeded to the second part of his submission, which concerned the fact of his appointment as joint administrator pursuant to the Guardianship and Administration Act 1986 and the consequent obligation that the joint administrators act unanimously and together. In support of this submission he referred to, but did not produce, extracts from the VCAT website.

He referred to the letter of 17 October 2006[48] from Russell Kennedy to his brother Alan in which Russell Kennedy thanked Alan: ‘…for instructing us to act for you in this matter in your capacity as your mother’s administrator’. He asserts that he had no knowledge of this until two months after it had happened and, in his written submissions purported to give evidence as to what occurred. Notwithstanding his statement that he had no knowledge of the engagement of Russell Kennedy by Alan for some two months, he nevertheless states that he met with Mr Hodgens in late October 2006 to discuss legal action being planned on behalf of his mother by his brother Alan. From the Hodgens’ Affidavit it also clear that Rohan participated in giving instructions almost immediately after the retainer. There is considerable detail given relating to the views that he had expressed to Mr Hodgens and the strategy he proposed which, in my view, is not material to be recounted. I note that these matters are addressed at some length in the affidavit of Mr Hodgens.
[48]Which was tendered at the hearing as Exhibit-2.

Rohan then gives further evidence in his written submission regarding the events leading up to the hearing before SM Howell and then his application that was dealt with by SM Vassie. He goes on to recount his attempt to appeal the decision of SM Vassie to the Supreme Court and the decision that ultimately concluded that appeal by Emerton J. In doing so his written submission ignores the distinction between submissions and evidence.

He summarised his position by saying:

The obligation to ensure that the legal rights of a person with a disability are not violated is strict and were breached by the respondent. That the respondent was a major law firm and its representatives, partners/principals makes the breach even more egregious. This breach alone justifies refund to the represented persons’ estate and myself as appellant of all monies spent opposing the respondent law firm and pursuing legal redress of many obvious wrongs. I note that along with the very many errors and/or falsehoods contained within the respondent’s outline of submissions and associate affidavit of Mr Hodgens, the respondent still denies that both parties to the joint administration should have been parties to the costs agreement. The contention that the respondent contracted with my brother personally, and it did not matter that its fees were paid by someone with an adjudged disability is breathtaking in its squalid candour and deceit.
The respondent cannot argue anything in mitigation. Though Howell SM did find work had been performed to the value of some $17k, he did not find that the represented person gained anything from it. My mother spent the last few years of her life suffering the indignity and inconvenience of all things listed in her initial statement of claim which she gave up believing she had reached a binding resolution. Making matters worse was that relatively expensive injunctive relief was entered into when the settlement terms provided a deliberately inexpensive form of resolution by arbitration well known to the respondent.[49]

[49]Appellant’s outline of submissions, 28 February 2014, [25] and [26].

It will become apparent shortly that these submissions had little to do with the questions of law stated in the Notice of Appeal. They raise a matter that Rohan had sought to agitate before SM Howell, but withdrew from doing, and which he did raise before SM Vassie, but failed. That point is the validity of the costs agreement entered into by his brother alone. That point continued to be front and centre in his attempts to appeal the decision of SM Vassie, although the ultimate decision that ended the appeal process did not need to deal with it.

The resolution of the proceeding in the Magistrates’ Court, however, although involving a consideration of the validity of the costs agreement, turns principally on whether the claim as formulated by Rohan disclosed a cause of action, as well as whether the issue of the validity of the costs agreement had been decided before.

It is necessary first to consider the Notice of Appeal and identify whether any question of law is exposed, even taking a generous view.

The Notice of Appeal

The questions raised in the Notice of Appeal, together with the related grounds, Russell Kennedy’s submissions, and my observations regarding them are set out in the following paragraphs.

Question 1 and Ground 1

The first question of law is that:

His Honour found that he could not find a basis for the proceeding. His Honour was satisfied that all issues I wished to have agitated in the Magistrates’ Court had already been dealt with by two members of the Victorian and Administrative Tribunal (sic) and also by various members of the Supreme Court, including the Court of Appeal.

The ground that relates to this question is expressed as follows;

His Honour erred in law in holding that all matters I wished to agitate in the Magistrates’ Court had been dealt with by two members of VCAT and various members of the Supreme Court. In my Complaint it is stated that when I first raised the matter of my not being a signatory to the Russell Kennedy Costs Agreement, before Senior Member Howell of VCAT, and that as such it should be declared null and void, he said he would not hear that issue as it required a separate application. Further, the Complaint states that when I made separate application to VCAT and came before SM Vassie, Russell Kennedy was successful in having the matter summarily dismissed without a hearing on the issue. Lastly, it is stated in the Complaint that all matters I initiated in the Supreme Court dealt only with judicial review of the summary dismissal decision of SM Vassie, and not with the substantive issue I had first sought to raise at VCAT.

Consideration

This supposed question of law seems to be a challenge to two conclusions reached by the learned Magistrate:

(a) First, that he could not find a basis for the proceeding. By this conclusion Magistrate Braun plainly meant that the statement of claim failed to disclose a cause of action. But the grounds given do not relate to this aspect of the matter. They relate to the next matter; and

(b) Secondly, that the matters he wished to agitate by his Complaint had been dealt with by the two members of VCAT and various members of the Supreme Court of Victoria.

In propounding grounds for the second matter, Rohan contended that the validity of the costs agreement had never been heard or decided.[50] In doing so he inevitably must undermine the decisions of SM Howell and SM Vassie in the proceedings in VCAT. Insofar as he seeks to undermine, or go behind, those decisions, the making of a Complaint in the Magistrates’ Court is not the proper vehicle for doing so. To the extent that the decisions of SM Howell and SM Vassie were open to challenge, the proper approach was by application for leave to appeal under s 148 of the VCAT Act. That course has been taken in relation to the decision of SM Vassie and was unsuccessful for the reasons given by Emerton J. Further, for the reasons found by SM Vassie, the challenge to the costs agreement was the subject of both issue estoppel and Anshun estoppel. Although the proceeding before SM Vassie was ultimately found to be without jurisdiction by Emerton J, his analysis of the underlying issues remains accurate. The proceeding in the Magistrates’ Court to seek to re-agitate the issues before SM Howell (and SM Vassie) amounts to a collateral challenge and is an abuse of process.[51]
[50]Transcript, 14 March 2014, p. 20.17-29.
[51]See for example Williams v Spautz (1992) 174 CLR 509, 520.

It is a “central and pervading tenet of the judicial system [that] controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances.[52] This principle is reflected in the doctrines of issue estoppel, Anshun estoppel and abuse of process. In Johnson v Gore Wood & Co[53] these principles were discussed and in relation to what in Australia is called Anshun Estoppel, which is derived from Henderson v Henderson,[54] Lord Bingham said:

But Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all.[55]

[52]D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1, 17 (Gleeson CJ, Gummow, Hayne and Heydon JJ); see Clarke (as trustee of the Clarke Family Trust) & Ors v Great Southern Finance Pty Ltd (Receivers and Managers Appointed) (in liquidation) & Ors [2014] VSC 516, [125].

[53][2002] 2 AC 1, 31 per Lord Bingham; see Clarke (as trustee of the Clarke Family Trust) & Ors v Great Southern Finance Pty Ltd (Receivers and Managers Appointed) (in liquidation) & Ors [2014] VSC 516, [125].

[54](1843) 3 Hare 100; [1843-60] All ER Rep 378.

[55]Cited with approval by French CJ in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, 194.

The claim that the costs agreement is invalid and involved a breach of duty by Russell Kennedy is an attack on the decisions and judgments of SM Howell and SM Vassie. It offends the legal policy underlying Anshun estoppel and abuse of process. The interests of Russell Kennedy in not being twice, or thrice, vexed in the same matter, and their interest in the finality of the decision of SM Howell, and the public interest in the finality of litigation, are offended by the Magistrates’ Court claim.

Question 2 and Ground 2

The second question of law is:

His Honour held that I had not said that my brother had acted without my consent or knowledge in appointing Russell Kennedy.

The supporting ground is as follows:

His Honour erred in law in that the Complaint states that I was not aware that my brother had entered into a Fees Agreement with Russell Kennedy to provide Injunctive relief and that if I had have been I would not have approved it until a much less expensive option to injunctive relief was thoroughly considered.

Consideration

As Russell Kennedy submitted, the ground does not support the question of law. The question of law concerns whether Rohan did not know or consent to the appointment of Russell Kennedy. The ground merely deals with whether he knew that his brother had signed a fee agreement with Russell Kennedy, which is a different matter. In any event, the evidence introduced by Russell Kennedy, including the reasons of SM Howell and the reasons of Lansdowne AsJ, make it clear that Rohan adopted the retainer of Russell Kennedy by Alan, and participated in giving instructions.

Rohan contended that it was wrong as a matter of fact as he had, in his statement of claim, pleaded that he wasn't aware the costs agreement had been signed until some two months after.[56] In fact that is not what his pleading alleges.[57] In any event, the question involves a matter of fact and does not constitute a question of law.
[56]Transcript, 14 March 2014, p.31.
[57]See paragraphs 10–17 of exhibit RAE-15 to the Second Ewing Affidavit.

Question 3 and Ground 3

The third question of law is:

His Honour held that when asked to produce the law which supports the contention that I was deprived of the opportunity to carry out my duties as an administrator, by not being a signatory to the Fees Agreement, I was unable to do so.

The ground supporting this question is:

His Honour erred in law in that the transcript shows that my reply to his question was that joint Administrators must jointly sign binding documents affecting the estate. In giving this reply I was relying on the provisions in the Administration Guide published on the VCAT website for the direction of Joint Administrators, the relevant provisions of which were set out in my written Complaint.

Consideration

This so called question of law takes Rohan nowhere. It gives rise to no cause of action (at least none that I can see, and none was identified in the submission or argument) to recover costs paid to Russell Kennedy for work performed by them and paid for out of moneys derived from his mother’s estate by his brother Alan. At best his cause of action is against his brother. But even then, he adopted or perhaps ratified the actions of his brother by his conduct in participating in the engagement of Russell Kennedy and giving them instructions, albeit instructions that appear to conflict with those given by Alan. More fundamentally, as a matter of fact, the evidence discloses that he was not deprived of the opportunity as joint administrator to carry out his duties. The Hodgens Affidavit makes it plain that he endeavoured only to act on the joint instructions of the two brothers, but this became impossible. Insofar, therefore, as the contention by Rohan might have been that no reasonable Magistrate could have come to the conclusion that there was no legal foundation for the claim because Rohan had referred him to the requirement that administrators appointed jointly must act jointly, then the so called question of law cannot be an element leading to any cause of action in favour of Rohan.

Russell Kennedy submitted, and I agree, that the ground does not support the question of law. The question concerns a failure to produce legal authority supporting the Appellant’s claim that he was deprived of the opportunity to carry out his duties as administrator. The ground refers to a VCAT website and administration guide, which is not legal authority, and deals with the issue of who should have signed the costs agreement, which has nothing to do with the right and power, which Rohan exercised, to give instructions to Russell Kennedy. The administrators’ entitlement and power to act and give instructions on behalf of their mother flowed from the order of VCAT made on 16 October 2006 appointing them. It did not flow from the costs agreement.

Once again, this does not raise any question of law relevant to any appeal.

Question 4 and Ground 4

The fourth supposed question is:

His Honour found that whether or not I signed the Fee Agreement it did not interfere with my opportunity and obligation to act in accordance with the law and the duties imposed under the law on me as an administrator of my mother’s estate.

The ground supporting this question is:

His Honour erred in law in that my obligations which are referenced in the provisions of the VCAT Administration Guide and which are included in the Complaint, specifically that joint administrators must make all decisions affecting the estate together, and sign documents together, were bypassed by Russell Kennedy entering a Costs Agreement with my brother alone.

Consideration

The statement by Magistrate Braun of which Rohan complains, is unexceptional. The alleged error identified in the ground does not show the statement challenged in the question to be wrong. In short, as with Question 3, the ground does not support the question of law. In any event, as with Question 3, it takes Rohan nowhere. Even if true, it gives rise to no cause of action justiciable in this proceeding.

Question 5 and Ground 5

The fifth question of law is:

His Honour found that there was no logical or legal connection between the failure of Russell Kennedy to have me sign the Fee Agreement and the costs wasted or incurred in the course of multiple proceedings before VCAT and the Supreme Court.

The ground supporting this question is:

His Honour erred in law by failing to take into account the Judgement [sic] of Her Honour Justice Emerton of the Supreme Court, referenced in the Complaint. Specifically Her Honour found that a jurisdictional argument brought by Russell Kennedy to dismiss my application in the Supreme Court, succeeded because I was not a signatory to Fees/Costs Agreement.

Consideration

Once again, the ground does not support the question. Indeed it is a complete distraction and has nothing to do with the absence of a connection between the failure of Russell Kennedy to have him sign the costs agreement and the subsequently wasted costs. As Russell Kennedy submitted, the remark by Emerton J about why Rohan’s Supreme Court appeal failed on jurisdictional grounds does not constitute a cause of action, and establishes neither a proper causative link nor a legally recoverable category of loss. The original fees paid to Russell Kennedy were paid by order of SM Howell from monies paid to the Legal Services Commissioner and held in trust. Those monies had been paid to the Commissioner by Alan, of his own volition, so that he could pursue a complaint against Russell Kennedy.[58] The costs orders made against Rohan in the subsequent Supreme Court appeal and related internal appeals, resulted from Rohan’s decision to appeal and take the risk of his appeal(s) failing. The appeal was not brought by Russell Kennedy.
[58]In fact, if Rohan’s statements from the Bar Table are to be believed, the payment of Russell Kennedy’s costs into trust pending the resolution of the costs dispute determined by SM Howell were paid by Alan without Rohan’s authority or consent: See Transcript, 14 March 2014 at p. 8-9. If that is so, his complaint must be against his joint administrator acting in breach of his duties.

Question 6 and Ground 6

The sixth supposed question is:

His Honour found that I could have taken steps to force my brother and fellow administrator, as well as Russell Kennedy, to desist from the course that was being taken.

The ground supporting this question is:

His Honour erred in law in that no account is taken of statements in my Complaint that not only did Russell Kennedy always maintain that the Costs Agreement was with my brother alone, but that when I asked in writing of Russell Kennedy for consideration of an alternative to injunctive relief, I was ignored.

Consideration

Once again, the ground does not support the question. The question recites the unexceptional statement by the Magistrate that Rohan could have taken steps, as administrator, to force his brother and Russell Kennedy to desist. The ground does not assist, as it merely complains about the costs agreement and complains that Russell Kennedy ignored Rohan. It confuses the ineffectual complaints by Rohan to Russell Kennedy and that firm ignoring him with the extent of his legal rights. It establishes no basis for asserting that Rohan was deprived of remedies he could take against his brother or Russell Kennedy if he was dissatisfied with what they were doing. It also leads to no cause of action.

Question 7 and Ground 7

The seventh supposed question is:

His Honour found that my proceeding in the Magistrates’ Court seeking recovery of costs awarded against me in the Supreme Court was a legal impossibility.

The ground supporting this question is:

His Honour erred in law in finding that the issue which gave rise to the costs order against me in the Supreme Court was the same issue I raised in my Complaint to the Magistrates’ Court.

Consideration

This elevates a conclusion of the Magistrate arising from earlier reasoning, including that the statement of claim failed to disclose a cause of action, and that the issues sought to be agitated had been dealt with in the earlier proceedings, into a question of law. It is not. Further, the ground does not support the question and also misstates the basis for the finding. The actual basis for the Magistrates’ finding is set out at page 52, lines 1-12 of the Reasons[59] and refers to the impossibility of using one court to effectively counteract the orders of another court. Magistrate Braun said:

Part of his claim in this court is to have those costs returned to him, even though the Supreme Court has made an order that he pay them to Russell Kennedy, he wants this court to ignore that and say, well all right, if I have to pay them under a Supreme Court order, I want you to order them to pay me under a Magistrates’’ Court order.[60]

[59]Exhibit JRH-2 to the affidavit of Julian Rohan Hamilton sworn 16 January 2014.

[60]Exhibit JRH-2 to the affidavit of Julian Rohan Hamilton sworn 16 January 2014, page 52, lines 4-10.

In any event, no basis is set out as to why the finding of Magistrate Braun is wrong.

Question 8 and Ground 8

The eighth supposed question is:

His Honour found that the arguments I wished to agitate in the Magistrates’ Court should have been agitated in the Supreme Court and that if I did they have been decided and if I did not, I should have raised them there and not here.

The ground supporting this question is:

His Honour erred in law in that the only issues before the Supreme Court were my initial seeking of judicial review of the summary dismissal decision of SM Vassie, then later a jurisdictional argument brought by Russell Kennedy. The issue for which I have sought relief in the Magistrates’ Court, that I should be compensated for not having have been made a party to the Russell Kennedy Fees/Costs Agreement and the costs that flowed against me for that reason, was never an issue before any of the Justices in the Supreme Court, nor was it relevant at any stage.

Consideration

The same complaint against Russell Kennedy was made throughout VCAT and the Supreme Court and Court of Appeal proceedings. The complaints were rejected by VCAT and, ultimately on jurisdictional grounds, in the Supreme Court. The costs orders did not flow from the failure of Russell Kennedy to insist on both administrators being signatories to the costs agreement. They flowed from Rohan’s failed attempts to insist that he should have been a party to that agreement. While a claim for ‘compensation’ by Rohan was not part of the Supreme Court proceedings, the underlying facts relating to it have been considered repeatedly in the various proceedings commencing with the original hearing in VCAT before SM Howell. Further, Rohan’s Magistrates’ Court proceeding is not actually one for ‘compensation’, as I have related above, it seeks repayment of fees paid pursuant to the order of SM Howells and a ‘waiver’ of costs paid or payable to Russell Kennedy pursuant to the several costs orders. As Russell Kennedy submitted, this relief is an attempt to undermine the operation of orders made by judicial bodies (VCAT, this Court, Court of Appeal). It is not a claim for damages and it is not supported by any identifiable cause of action.

The above consideration of the several questions of law is sufficient, strictly speaking, to dispose of the appeal. But in case I am wrong in my analysis of the questions of law, I will address the validity of the costs agreement point, in the event that it could be said that such an invalid agreement could give Rohan a cause of action against Russell Kennedy, a proposition for which no authority or even serious argument was addressed by him.

Rohan Hamilton’s Central Issue

Rohan’s written submissions include the following:

(a) He was a joint administrator with Alan, but he was not a party to the costs agreement;

(b) By the action of Russell Kennedy entering into the costs agreement with Alan alone, Rohan was deprived of the opportunity to exercise his powers as an administrator on behalf of his mother and to give instructions to Russell Kennedy to seek some kind of enforcement or relief via reinstating an earlier Supreme Court proceeding between the parties;

(c) That in consequence, Russell Kennedy should have to repay the original legal fees for work that were ordered to be paid by SM Howell and also that Russell Kennedy should have to ‘waive’ the various costs ordered to be paid to them by him in relation to his unsuccessful Supreme Court appeals; and

(d) That had he been involved he may have required the initial Russell Kennedy legal fees to have been lower (see ground 2), in spite of SM Howell having made a findings of fact that included that the brothers gave conflicting instructions on a number of vital matters, including that Alan said costs should be kept to a minimum and proceedings only issued as a last resort, whilst Rohan told Ross Hodgens that costs were no concern and to engage Jeffrey Sher QC.[61]

[61]See the reasons of SM Howell at paragraph 30, Exhibit RAE-1 to the Second Ewing Affidavit.

Russell Kennedy submitted in relation to the attack on the validity of the costs agreement that:

(a) Its costs agreement was with Alan alone. The LPA distinguishes between a client, being the person ‘to whom or for whom legal services are provided’ (see s 1.2.1), on the one hand, and a ‘third party payer’, being a person who is not the client but who agrees to pay legal costs for services provided to the client (see s 3.4.2A), on the other;

(b) Alan was the third party payer and Mrs Hamilton, and not Alan, was the actual client. That is why the costs agreement is expressed to be with Alan as his mother’s administrator. Russell Kennedy represented Mrs Hamilton, and not Alan personally;

(c) The costs agreement did not give Alan the power to give instructions. It merely bound him to pay the legal bills;

(d) Even if Rohan should have also been a party to the costs agreement (which Russell Kennedy denied), that does not lead to any loss of his power to instruct or act. The right to give instructions is a different matter from who will pay the bill, and flows from the ‘retainer’ of a lawyer and not the costs agreement, if there even is a costs agreement. Costs agreements are not required unless the lawyer wishes to charge other than on scale, see s 3.4.19(b) of the LPA. A retainer does not have to be in writing or contained in any particular document;[62]
[62]See Sunland Waterfront (BVI) Ltd & Anor v Prudentia Investments Pty Ltd & Ors (No 4) [2013] VSC 669, [86].

(e) In this case, Russell Kennedy was retained to act on behalf of Mrs Hamilton. It was by virtue of their appointment as administrators for their mother by order of VCAT, and not by virtue of the costs agreement, that Alan and Rohan had the legal right and the duty to give instructions to Russell Kennedy in relation to their mother’s dispute with her neighbour, and the evidence was that they both did so, albeit inconsistent instructions that made acting difficult and time consuming for Russell Kennedy;

(f) Not being a party to the costs agreement did not deprive Rohan of his ability to give instructions on behalf of his mother and it certainly did not operate as a brake on him giving instructions in fact. Nor did it prevent him from restraining Russell Kennedy from acting otherwise than in accordance with the joint and unanimous instructions of both administrators; and

(g) For these reasons, there can be no claim for compensation flowing from the issue of who should have been a party to the costs agreement.

There was no rational argument put by Rohan in answer to these propositions. They seem to me to be correct. It follows that there can be no viable claim that Russell Kennedy breached their contractual or tortious duty of care to Mrs Hamilton, even if that had been pleaded in the Magistrates’ Court, and it was not. Nor can there be any claim by Rohan for any breach of any duty of care owed to him personally, even if that had been alleged in the statement of claim, and it was not.

Counsel for Russell Kennedy also made submissions on various aspects of the un-pleaded, but contended for, duty of care, its breach and the issue of causation. On the assumption that there was some claim in tort arising out of a duty of care owed by Russell Kennedy to Mrs Hamilton or Rohan, and some breach (none of which was squarely put in the statement of claim). There were many telling points made, including:

(a) That there was no evidence that Russell Kennedy had ever, to their knowledge, been paid their fees by Mrs Hamilton. The contract for the payment of the fees was with Alan and as far as they knew they were paid by him. Her estate had not therefore been caused any loss or damage by any conduct of Russell Kennedy;

(b) The application for leave to appeal to this Court from the decision of SM Vassie was Rohan’s decision and his choice. There was no compulsion upon him to take that step and he did not, was not and could not have been, protecting his mother’s estate by doing so. He was, from what I have read and heard, pursuing a personal fetish over the perceived wrong done to him by Russell Kennedy not insisting to Alan that he, Rohan, had to be a party to the costs agreement. Moreover at the time he made his application for leave to appeal he was no longer an administrator of his mother’s affairs (as was the case when the hearings before SM Howell took place and the application dealt with by SM Vassie was made) nor the executor of her Will to whom Probate had been granted;

(c) None of the events giving rise to the loss claimed by Rohan are reasonably foreseeable; and

(d) All the costs that Rohan seeks to recover were ordered to be paid by him personally. They are not losses suffered by the estate of his mother, and he cannot claim them against Russell Kennedy as the Court has ordered him, Rohan, to pay them to Russell Kennedy. There is no nexus between Russell Kennedy entering into the costs agreement with Alan alone and those costs ordered to be paid by him personally.

Counsel for Russell Kennedy also made submissions on the concept of issue estoppel, and in particular that it is more than a rule of evidence, that it extends the decision of tribunals (providing the tribunal has jurisdiction to decide finally a question arising between parties), its application to issues of fact or law (and in the case of issues of fact, ultimate issues) and the result that has on the ability of Rohan to claim to attack the validity of the costs agreement, referring me to Holbrow v Western Australia,[63] Waddington v Silver Chain Nursing Association,[64] and Hoysted v FCT.[65]The result of the application of the doctrine to the facts in this case is that the decisions of SM Howell is a decision finally binding Rohan and Russell Kennedy. The decision has not been set aside nor has it ever been appealed. Thus, I conclude that the reasoning of SM Vassie was correct and the decision of SM Howell gives rise to an issue estoppel or an Anshun estoppel preventing the agitation by Rohan of the validity of the costs agreement, a proposition that is central to the claim he now says he meant to make in the Magistrates’ Court (but which on my reading of the statement of claim he failed to express).
[63][2009] FCA 1200, [102].
[64](1998) 20 WAR 269.
[65](1921) 29 CLR 537, 562.

Conclusion

In the result, whether the focus is by reference to the questions of law in the Notice of Appeal or by reference to the central question that was advanced by Rohan concerning the validity of the costs agreement, (seemingly outside the questions of law), in the Notice of Appeal, there is no identifiable cause of action exposed in the Magistrates’ Court complaint against Russell Kennedy.

For the foregoing reasons, in my view, Rohan’s Notice of Appeal ;

(a) Does not identify sufficiently (or at all) a question of law on which the appeal may be brought; and

(b) Does not raise an arguable case on appeal and to refuse leave would impose no substantial injustice.

Accordingly, the appeal should be dismissed with costs. I will hear the parties as to the appropriate order as to costs.

[2014] VSC 630

15 December 2014