He v Aloe & Co Pty Ltd - [2006] VSCA 150

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 3755 of 2004

DAMING HE
	Applicant
v.
ALOE & CO. PTY. LTD.	Respondent

APPLICATION ON SUMMONS

JUDGES:	MAXWELL, A.C.J. and EAMES, J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 April 2006
DATE OF JUDGMENT:	7 July 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 150	1^ST REVISION, 7 JULY 2006

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APPEALS – Appeal from Legal Profession Tribunal to Court of Appeal – On question of law only – Application for leave to substitute new grounds of appeal – Whether notice of appeal identifies questions of law – Supreme Court (Miscellaneous Civil Proceedings) Rules 1998 r.4.11 – Legal Practice Act 1996 s.170.

LEGAL PROFESSION – “Dispute” between client and practitioner – Determination by Legal Profession Tribunal – Appeal by client to Full Tribunal – Appeal by way of re-hearing – Whether Full Tribunal misunderstood appeal jurisdiction – Legal Practice Act 1996 s.169.

ADMINISTRATIVE LAW – Natural justice – Tribunal obliged to “act fairly and according to the substantial merits of the case” – Whether breach of natural justice for Tribunal to entertain and uphold no-case submission – Legal Practice Act 1996 s.407.

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APPEARANCES:	Counsel	Solicitors
The Applicant appeared in person
For the Respondent	Mr G.L. Rice	Aloe & Co. Pty. Ltd.

MAXWELL, A.C.J.,
EAMES, J.A.:

The appellant, Daming He (“DH”), sued in the Magistrates’ Court for $2026.50 plus costs and interest, for damage to his motor vehicle. The respondent (“AAC”) was his solicitor. After three adjournments, the matter came on for hearing on 30 November 2001. Following negotiations, the case was settled for $1425, plus costs and disbursements agreed at $1716.

DH was very unhappy with the outcome. He was dissatisfied with the conduct of his lawyers, and believed he had been pressured into accepting inadequate compensation. He made a complaint against the barrister to the Legal Ombudsman, which was dismissed. Then in March 2003, he filed a complaint with Victorian Lawyers RPA Limited (“the Law Institute”) against AAC. The Law Institute was unable to resolve the dispute and referred it to the Legal Profession Tribunal (“the Tribunal”). After a hearing on 10 March 2004, the Tribunal upheld a no-case submission on behalf of AAC and dismissed DH’s claims. DH appealed to the Full Tribunal, which dismissed his appeal and ordered him to pay costs.

Under s.170(1) of the Legal Practice Act 1996 (“the 1996 Act”),[1] DH has an appeal as of right to this Court from the decision of the Full Tribunal, but only on a question of law. By notice of appeal dated 18 August 2004, DH set out at length his complaints about the procedure in the Tribunal and in the Full Tribunal. His principal complaint was that, both in the Tribunal and on appeal to the Full Tribunal, his allegations of misconduct by AAC had been ignored. The notice of appeal itemised 10 instances of alleged misconduct.
[1]Since repealed and replaced by the Legal Profession Act 2004 (“the 2004 Act”).

The appeal to this…

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: [2006] VSCA 150
Decision Date: 7 July 2006

CaseChat Overview and Summary

The matter of He v Aloe & Co Pty Ltd was heard in the Court of Appeal, where the appellant sought leave to substitute new grounds of appeal against a decision of the Legal Profession Tribunal. The appellant, who had previously been a client of the respondent law firm, appealed a decision of the Legal Profession Tribunal which dismissed the appellant’s complaint regarding the respondent’s handling of a legal matter. The Tribunal had determined that the respondent had not engaged in professional misconduct, and the appellant took the matter to the Full Tribunal, which upheld the original Tribunal’s decision. The Full Tribunal’s decision was then appealed to the Court of Appeal on questions of law only.

The central legal issues in this appeal were whether the notice of appeal properly identified questions of law and whether the Full Tribunal had misunderstood its jurisdiction when it entertained and upheld the respondent’s no-case submission. Additionally, the court considered whether the Tribunal’s handling of the no-case submission constituted a breach of natural justice.

The Court of Appeal found that the notice of appeal sufficiently identified questions of law, satisfying the requirements of the Supreme Court (Miscellaneous Civil Proceedings) Rules 1998. The court noted that the appeal was properly before it on questions of law only. The court also concluded that the Full Tribunal did not misunderstand its jurisdiction, as the appeal was indeed heard as a re-hearing. Furthermore, the court held that there was no breach of natural justice in the Tribunal’s decision to entertain and uphold the respondent’s no-case submission, as the Tribunal had acted fairly and according to the substantial merits of the case.

The Court of Appeal dismissed the application for leave to substitute new grounds of appeal. The court held that the notice of appeal was sufficient, the Full Tribunal did not misconstrue its jurisdiction, and the Tribunal’s handling of the no-case submission did not breach natural justice. As a result, the appeal was dismissed without further orders.

Orders