He v Aloe & Co Pty Ltd

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 Court was due to be heard on 24 November 2005 but the hearing date was vacated after the Court decided that the draft notice of appeal did not comply with the applicable rules, set out in Order 4 of Chapter 2. Contrary to the requirements of rule 4.11(1), the draft notice did not identify questions of law in an appropriate way and did not set out concisely the grounds of appeal. Accordingly, the Court ordered that paragraphs 1-28 of the draft notice be struck out, but gave leave to DH to apply at a later date for leave to substitute appropriate paragraphs in the notice of appeal.

It is that leave application which is now before the Court. DH has filed a draft substitute notice of appeal. The application is opposed by AAC, which argues that no question of law is raised and that the appeal should be dismissed as vexatious. We have approached the application on the basis that, if one or more questions of law is disclosed by the redrafted notice of appeal, DH should have leave to substitute those questions, unless it is shown that the grant of such leave would be futile because the ground(s) of appeal would have no prospect of success.[2]
[2]See Burns v Griff [1967] VR 871 at 872 per Barry, J.; State of Victoria v Bacon [1998] 4 VR 269 at 276 per Winneke, P. (Ormiston, J.A. agreeing) and at 292-3, per Phillips, J.A.; to similar effect, see Ericsson Pty Ltd v Popovski (2000) 1 VR 260 at 267 [22] per Brooking, J.A., speaking for the Court.

As will appear, in order to understand properly the questions which DH wishes to ventilate on this appeal, it has been necessary to examine the history of the matter in detail. In particular, we have read in full the transcript of proceedings before the Tribunal and before the Full Tribunal. Certain matters have emerged from that review which were not apparent at the time of the leave hearing. Reference will need to be made to those matters later.

In the course of the hearing of the leave application on 6 April 2006, the President raised with DH and with counsel for AAC, Mr G Rice, whether it would be appropriate for the hearing of the application for leave to be treated as the hearing of the appeal itself, since (as has proved to be the case) consideration of the application for leave would necessarily involve some consideration of the merits of the grounds of appeal. This procedure – of treating the application for leave as the hearing of the appeal itself – is a course adopted from time to time in this Court, designed to save time and expense for all concerned, including the Court. Counsel for AAC indicated that his client would consent to this course. DH, however, did not consent, arguing that he was not in a position to argue the appeal in full.

We have concluded that DH should have leave to substitute most, but not all, of his proposed grounds of appeal. Ordinarily, a grant of leave is not accompanied by lengthy reasons. In the present case, however, it is necessary to set out the history of the matter in some detail, in order that the questions of law which DH wishes to agitate on the appeal can be understood in context.

The Magistrates’ Court proceeding

On 30 October 2000, DH was involved in a motor vehicle accident, in which his vehicle was damaged. The driver of the other vehicle was insured with AAMI Insurance (“AAMI”), which accepted liability. AAMI would not, however, pay the cost of repairing the vehicle, which was estimated at $4000. AAMI considered the car a “write off” and offered DH $800.

According to the statement of DH’s case filed with the Tribunal (“the statement of case”)[3], DH consulted AAC in about November 2000, following AAMI’s offer. He met with a solicitor named Bakhaazi, who was employed by AAC. According to DH, Bakhaazi agreed that the firm would act for DH, and gave him the following assurances:
[3]As appears from paragraphs [37] and [42] below, this document – headed “The client states” – was prepared for DH by counsel assisting the Tribunal.

“(a)If the car was valued by a car assessor at more than $800 the legal practitioner could claim back the assessed value and all costs from AAMI;

(b) the legal practitioner would charge no fee from the client;
(c)the client had to take the risk of paying for an assessment of the value of the car at first. This was the only money the client was obliged to pay until AAMI paid all his claims;
(d)the legal practitioner estimated from his own knowledge that the car was worth more than $800.”

On the recommendation of AAC, DH obtained a loss assessment report from Daryl Fanning & Associates, loss assessors, dated 18 December 2000. DH paid $126.50 for the report. The report made the following assessments of the vehicle:

· pre-accident value $1950;

· cost of repairs $4000;

· highest salvage tender $50;

· suggested net loss $1900.

The report expressed the opinion that “it would not be an economical proposition to attempt repair and that, if settlement was contemplated, consideration should be given to settling the claim on a total loss basis.”

On instructions from DH, Bakhaazi issued a Magistrates’ Court complaint, which specified the amounts claimed as follows:

“(a)     the costs of repairs to the plaintiff’s [sic] $1900;
(b)     assessor’s fee $126.50;
(c)     interest pursuant to statute;
(d)     costs.”

On 20 March 2001, the solicitors for AAMI, who were conducting the defence on behalf of the insured driver, filed a statement of expert evidence, which indicated that their own loss assessor would state:

“● that in his opinion the net pre-accident value of the plaintiff’s motor vehicle amounted to $800;
●that an amount of $1900 claimed by the plaintiff for pre-accident value is inflated and does not take into account the age or condition of the plaintiff’s motor vehicle.”

On 23 April 2001, AAC filed a statement of expert evidence on behalf of DH, indicating that Mr Fanning would give evidence –

“●that in his opinion the net pre-accident value of the plaintiff’s motor vehicle amounted to $1900;
●that an amount of $1900 claimed by the plaintiff for pre-accident value is not excessive.”

The three adjournments

The case was due to be heard in the Melbourne Magistrates’ Court on 21 May 2001. At 8:45 on the morning of the hearing, Bakhaazi contacted DH to inform him that AAMI had sought an adjournment. The matter was adjourned to 24 July 2001. DH did not attend court, although he had taken a day off from work in order to be able to attend. Counsel briefed on behalf of DH did not attend court, and accordingly no counsel’s fee was incurred.

Agreement to adjourn had in fact been reached, between the solicitors, several days earlier. On 15 May 2001, Bakhaazi wrote to AAMI’s solicitors. The letter referred to a telephone conversation earlier in the day and confirmed –

“that this matter is to be adjourned by your firm and that payment of the sum of $650 is to be paid to Aloe & Co Solicitors for costs thrown away by reason of the adjournment.”[4]

[4]AB A19.

Had DH been informed promptly – as he should have been – that the 21 May hearing had been adjourned, he would presumably have avoided having to take a day off from work on 21 May. In the events which happened, however, he was not advised of the adjournment until the morning of the hearing, by which time he had already taken leave for the day. One of DH’s claims against AAC was for the earnings lost ($200) as a result.[5]
[5]Set out in paragraph 21(c) of the statement of case – see para [40] below.

By letter dated 4 June 2001, AAMI’s solicitors forwarded to AAC “our client’s cheque for $650, made payable to your firm.” According to DH, he was not told until much later that AAMI had made this payment to AAC for the costs of the adjournment on 21 May. What is rather more significant is that, no counsel’s fee having been incurred for that day (no doubt because of the agreement in advance to adjourn the hearing), this sum of $650 was paid to AAC in respect of its own professional costs of the adjourned hearing. This is a matter to which reference will be made later in these reasons.

On the adjourned hearing date, 24 July 2001, counsel was briefed on behalf of DH but neither AAMI nor its representatives appeared at court. The case was again adjourned – this time to 21 September 2001 – and the court ordered the defendant (in effect, AAMI) to pay DH’s costs of $744. This sum comprised counsel’s fee of $544 and $200 representing DH’s loss of earnings for that day, which on this occasion was claimed by AAC on his behalf. As on 21 May, DH had been obliged to take a day off work in order to be at court.

By letter dated 16 August 2001, AAMI’s solicitors forwarded to AAC a cheque for $744 payable to the firm. Counsel’s fees of $544 were subsequently paid but AAC at no time paid to DH the sum of $200 which, as mentioned, was payable to DH for his loss of earnings. Counsel’s backsheet clearly identified the amount of $200 as being for “witness expenses (plaintiff)”. The non-payment of the $200 formed the basis of another of DH’s claims against AAC.[6]
[6]Paragraph 21(d) of the statement of case – see para [40] below.

In June 2001, AAMI’s solicitors made a settlement offer of $1600 plus costs. A letter was drafted by AAC purporting to accept that offer, but DH was not satisfied with the offer, and the letter was not sent.[7]
[7]AB A22.

On the next hearing date (21 September 2001), DH’s loss assessor, Fanning, failed to attend at court. According to the account he later gave to the Victorian Bar, DH’s barrister made “desperate telephone calls” to Bakhaazi and to Fanning.

“My instructor confirmed that Fanning was aware of the hearing but when I was able to contact Fanning on his mobile he informed me he was out of town and that he had informed my instructor that he would not be available to attend. In the absence of our client’s expert I informed Mr He that he had but two alternatives:
(i)to settle there and then to the amount then being offered by the defendant that day which I might add was substantially more than had been offered previously; or
(ii)adjourn the matter to another date when Fanning would be present, and for [DH] to pay the defendant’s costs of the day.

I made it perfectly clear to [DH] that Fanning’s evidence was crucial and essential if the matter was to proceed to a hearing and that I would be unable to resist the defendant’s application for costs of the adjournment as Fanning’s non-attendance was in no way the fault of the defendant. The client instructed me not to accept the offer of settlement that was made and that the matter be adjourned to another date upon [DH] paying the defendant’s costs of that day fixed at $794.”

DH’s statement of case directed criticism at the solicitor, Bakhaazi –

“... [T]he legal practitioner [Bakhaazi] insisted that they would not go to the Court without Mr Fanning and alleged the client should take responsibility for the adjournment and use[d] the cost of the adjournment to threaten and coerce the client to accept AAMI’s offer, $1175 plus costs. After four hours the legal practitioner agreed to pay AAMI $794 and adjourned the matter to 30 November.”[8]

[8]AB B28 para [9].

Because of the inability to call Fanning, the hearing had to be adjourned on the application of DH as plaintiff. As a result, DH was ordered to pay costs in the sum of $794. Those costs were subsequently paid by AAC, together with the fee for counsel who appeared on behalf of DH ($544). DH claimed that AAC was responsible for making sure that Fanning attended and that the firm should therefore compensate DH for his loss of earnings ($200) resulting from having had to attend court.[9]
[9]Paragraph 21(c) of the statement of case – see para [40] below.

The final hearing

Finally, on 30 November 2001, all parties and witnesses were present. The complaint by DH about what occurred on that day is best understood by setting out in full the relevant part of his statement of case:

“10.Negotiations were conducted prior to the hearing and AAMI offered the client $1425 plus costs. Mr Bakhaazi and [counsel for DH] both advised the client to accept the offer, as the client would still be entitled to a refund on the residual registration and the salvage, which were included in the $1900. The legal practitioner advised the client that the Magistrate would assess the loss at being halfway between the client’s assessment and AAMI’s assessment, that is $1350. He advised the client he would not proceed to Court ‘for a loss’.
11.The client refused to accept the offer and instructed the legal practitioner to have the matter determined by the Court as the Loss Assessment Report [by Fanning] put the net loss at $1900 and Mr Fanning asserted that that figure did not include residual registration and salvage.
12.After four hours of negotiation the legal practitioner then asked the client to pay $95 immediately to enable Mr Fanning to remain at Court and give evidence. The client did not have $95 with him at the time and was unable to pay, as the legal practitioner had earlier assured him that he need pay no more than the cost of the loss assessment prior to AAMI paying all his claims. The legal practitioner then said that Mr Fanning would leave, the matter would have to be adjourned, and that the client would pay the costs of the adjournment.
13.The client asked the legal practitioner to set out their advice in writing. The legal practitioner refused to do so. However, the legal practitioner let Mr Fanning wrote (sic) a note for the client that he considered AAMI’s offer of $1425 plus costs to be reasonable in all the circumstances as it did not include residual registration or salvage.
14.The client finally accepted AAMI’s offer but informed the legal practitioner that he would be making a complaint to the Legal Ombudsman.”

On 24 January 2002, AAC wrote to DH enclosing –

“our trust account cheque in the sum of $1425.00 being the amount ordered on the claim.”

The cheque was signed by John Aloe, the principal of AAC (“Aloe”).

The complaints

By letter dated 28 January 2002, DH made a complaint to the Legal Ombudsman about the conduct of his barrister. The Ombudsman referred the complaint to the Victorian Bar, pursuant to s.142 of the 1996 Act. The barrister provided a detailed written account of what had occurred, dated 8 March 2002,[10] following which the Ethics Committee of the Victorian Bar resolved to take no further action against the barrister pursuant to s.151(5) of the Act. The committee provided written reasons for that decision, dated 8 July 2002.[11]
[10]AB B5.
[11]AB B12.

By letter dated 20 March 2003, DH complained to the Law Institute about AAC. On 1 April 2003, the Professional Standards division of the Law Institute referred the complaint to AAC. In the covering letter, the Professional Standards officer said (in part):

“It appears to me that the complainant is raising the following issues:
Professional Conduct
(a)Pecuniary loss claim, alleged to be $1,279.08 as detailed in the complaint due to the alleged bad case handling on the part of the firm.
(b)It is alleged that Mr Bakhaazi allegedly said that the September 2001 hearing had to be adjourned due to the fault of the client. It is alleged that Mr Bakhaazi may have mislead (sic) the client.

In order that there is no confusion I suggest that you answer the allegations relating to conduct and disputes separately.”

AAC responded very promptly. By letter dated 4 April 2003 to Professional Standards, AAC advised –

“that it is our view that Mr Daming He has no cause for complaint as we have already compensated [him] for an amount in excess of what he is claiming in his complaint.
We advise that Mr He has previously complained to us about Mr Bakhaazi’s negligence after the conclusion of this matter. In order to resolve it Mr Lontos of this firm after consultation with me advised him that we wouldn’t charge solicitor/client costs and that from costs due to us that we would pay for costs of the adjournment of the 21^st September 2001 and Mr Fanning’s fees for attending at the final hearing. The only costs recovered by this firm were part of our costs which relate to issuing proceedings and service fees which total $247.50. Total disbursements received by us were $197.50.
We enclose copy of our account addressed to Mr He dated the 30^th March 2002 which account does not include solicitor/client charges or a $50.00 fee for service of a Summons to Witness.”

The letter advised that Aloe could not comment as to what had taken place at the final hearing, as he had not been present and Bakhaazi could not be located. (The enclosed “account” dated 30 March 2002 was not an account for payment. Rather, it was a “Statement of Monies”, recording amounts received and paid by AAC.[12])

[12]AB B10.

DH in turn responded in writing, following which Professional Standards spoke to Aloe, who was not willing to put any proposal for settlement of the issues. As a result, Professional Standards concluded that “reasonable attempts had been made to settle the dispute” but without success, and advised DH by letter dated 12 May 2003[13] that he was entitled to refer the dispute to the Tribunal.
[13]AB B22.

It is appropriate at this point that we set out the relevant provisions of the 1996 Act.

The 1996 Act

Division 1 of Part 5 of the 1996 Act dealt with disputes between clients and practitioners. The term “dispute” was very broadly defined by s.122(1), to include –

“...
(b)a claim that a person has suffered pecuniary losses as a result of an act or omission by a legal practitioner or firm in the provision of legal services to the person, other than loss in respect of which a claim lies against the Fidelity Fund;
(c)any other genuine dispute between a person and a legal practitioner or firm arising out of, or in relation to, the provision of legal services to the person by the practitioner or firm.”

To initiate “the dispute resolution process” provided for by the Act, the client had to lodge –

“a written request.... setting out the details of the dispute and the name and address of the legal practitioner or firm to whom the dispute relates.”[14]

In the case of DH, the request was constituted by his completing a document entitled “Complaint Form”, published by the Professional Standards section of the Law Institute.

[14]Section 123(1).

In the section of the form headed “Cause of Complaint”, DH ticked boxes the effect of which was to make the following statement:

“In making this complaint, I am trying to:
·receive an apology;
·have the practitioner disciplined;
·have the fees waived or reduced; and
·receive financial compensation.”

The Complaint Form thus made clear that DH was complaining about misconduct – hence the stated desire to have the practitioner disciplined. The Form proceeded to describe, in detail, the conduct complained of and concluded as follows:

“Therefore [AAC] is liable to pay the financial loss, which I have suffered, under fair trading legislation because of Mr Bakhaazi’s fraud conducts (sic)” (emphasis added).
A number of items of loss were specified, totalling $1,279.08.

Receipt of the complaint form (dated 20 March 2003) obliged the Institute –

· to advise AAC of the request for resolution of a dispute (s.123(6));

· to try to settle the dispute (s.126(1)); and

· if satisfied, after reasonable attempts to settle the dispute, that the parties could not reach agreement - to give written notice to each party and the Legal Ombudsman (s.128(1)).

Having received the latter notice, DH was entitled under s.128(2) to refer “the dispute” to the Tribunal, by lodging with the Registrar a written referral and the prescribed fee. The dispute had then to be referred for conciliation (s.128(4)). Conciliation took place but was unsuccessful. By s.132(b) the Tribunal was then obliged to “hear and determine the dispute”.

Under s.133(1)(a), the Tribunal had power to make a “compensation order”, that is –

“an order that the legal practitioner or firm pay to the client as compensation a specified amount not exceeding $15,000 within a specified time.”

The Tribunal was also empowered, by s.133(1)(f), to make “any other order the Tribunal thinks fit.”

The statement of case

The Tribunal advised DH[15] that, as the dispute had not been resolved at conciliation, it was –

“necessary to prepare a document setting out your claim against the legal practitioner.”

Arrangements were subsequently made for counsel assisting the Tribunal to draft – in consultation with DH – what became the statement of case, as we have described it.

[15]Letter dated 2 July 2003 – AB B24.

As noted already, the statement of case alleged that DH had been threatened and coerced on 21 September to accept AAMI’s offer of settlement; and further alleged that Bakhaazi had pressured DH to settle at the final hearing, in circumstances which prompted DH to advise Bakhaazi that he would be making a complaint to the Legal Ombudsman. The statement of case also contained the following section:

“ALLEGATIONS
16.The legal practitioner broke the promise referred to in paragraph 3 herein, in accepting $650 from AAMI considering the fact that the shortfall between the client’s initial claim and AAMI’s highest offer was only $200.
17.The legal practitioner manipulated Mr Fanning in persuading him to state that $1425 was a reasonable offer as the client still considered that he was entitled to a refund on the residual registration and the salvage when Mr Fanning had earlier said that the client’s net loss was $1900.
18.The legal practitioner attempted to deceive the client by stated (sic) that the loss of $1900 included the residual registration and salvage. In fact, in that day Mr Fanning had earlier stated that the assessment of $1900 did not include residual registration and salvage.
19.The legal practitioner failed to arrange for Mr Fanning to appear on 21 September resulting in an adjournment of the case and the incurring of costs.
20.On 21 September the legal practitioner insisted the client could not proceed to court on that day without Mr Fanning and insisted that the client accept responsibility for the adjournment. He used the costs of the adjournment to threaten and coerce the client for four hours to accept AAMI’s offer which at that stage was $1175 plus costs. The legal practitioner finally agreed to pay the costs of that day.”

Consistently with DH’s Complaint Form, these were complaints about the conduct of Bakhaazi. The statement of case concluded with a separate section, entitled “Loss”, which alleged that “as a result of the legal practitioner’s acts or omissions” DH had lost:

“21(a)$475.00: being the shortfall between the assessed loss of $1,900.00 and the amount recovered, $1,425.00.
(b)$126.50: being the cost of the assessor’s report which the legal practitioner should have included in the costs to be paid by AAMI.
(c)$200.00: being the amount of the client’s income loss for the adjournment called by AAMI on 21 May 2001.
(d)$200.00: being the amount ordered by the Court as the client’s income loss for the adjournment on 24 July 2001. This amount was never forwarded to the client by the legal practitioner.
(e)$200.00: being the amount of income loss by the client on 21 September 2001 as the legal practitioner failed to arrange for Mr Fanning to appear and refused to proceed to court without Mr Fanning.
(f)$277.58: being interest on the loss of $1,900 from the date of the accident, 30 October 2000 to 30 November 2001, calculated at 13.5%.”

The statement of case concluded with a section resembling the prayer for relief in a pleading, as follows:

“AND THE CLIENT CLAIMS.
A. Compensation in the sum of $1479.08.
B.Compound interest of $1479.08 from 30 November 2001 to the date of the hearing. (If the date of the hearing is on 30 November 2003 the compound interest will be $426.31.)
C.Any other or further orders as the Tribunal thinks fit.”

The Tribunal hearing

The matter came on for hearing before the Tribunal on 10 March 2004. The Tribunal was constituted by its Deputy Registrar. DH represented himself. Counsel appeared to assist the Tribunal, and Mr Rice appeared to represent AAC.

At the outset, counsel assisting the Tribunal explained the genesis of the statement of case:

“... [T]hese particulars were not actually finally drafted by the Tribunal, they are [signed] by the client and that resulted from the fact that I was briefed to draft these particulars and I did do several drafts and between the client and myself we were unable to come to an agreed set of particulars. So that’s why these particulars are in the form they’re in and there are parts of the particulars which I could not agree on behalf of the Tribunal as being appropriate.
... I probably should as a preliminary point, if I could, draw your attention to 21(c), that’s really the only one.”

As appears from paragraph 40 above, paragraph 21(c) related to the claim for loss of earnings as a result of the adjournment on 21 May 2001. Counsel assisting argued, and the Tribunal ruled, that this claim was outside the Tribunal’s jurisdiction because it had not been mentioned in the Complaint Form. This ruling was upheld by the Full Tribunal. DH seeks to challenge that ruling on this appeal.

After preliminary submissions, counsel assisting called DH to give evidence. The evidence he gave was consistent with the matters set out in the statement of case. He was cross-examined by Mr Rice. We will refer later to some aspects of the cross-examination.

Following the conclusion of the evidence, Mr Rice for AAC made a no-case submission. He argued that, as to the shortfall of $425 between the amount claimed and the settlement amount, this was an impermissible “collateral attack on a court order made by consent”. As to the other loss claims, counsel argued that there was no evidence that DH had suffered any loss.

In his submission, counsel assisting agreed that there was no case to answer except in relation to claims (d) and (e). As to those matters, counsel submitted that evidence had been given which required an answer.

The Tribunal upheld the no-case submission. Before doing so, the Deputy Registrar said:

“I won’t trouble you, Mr He, this is essentially an argument of law as to whether the elements of your case has been made out. If I rule that they have then it will be up to the legal practitioner to present his case. If I rule the elements of your case have not been made out then the matter will be at the end of that. Do you understand?---Not quite well.”

The Deputy Registrar then stated that he would be looking “at what evidence has been given as against what needs to be given, in terms of proving each element.” The Tribunal proceeded to consider each of the claims and concluded that there was no evidence of any loss. The Tribunal said:

“On the basis of the lack of required evidence I find that the client has failed to make out his case and the dispute will be dismissed accordingly. I comment in passing that the client did give evidence than an offer of $1600 was made by AAMI and that it was recommended by the legal practitioner that he accept this offer and that the client rejected the offer. This was before matters came to court.”

The same remark was contained in the published reasons for decision. It is not apparent to us how the rejection of the earlier offer was relevant to any of the issues raised by the complaint.

The appeal to the Full Tribunal

Under s.167 of the 1996 Act, DH had a right of appeal to the Full Tribunal. The powers of the Full Tribunal were set out in s.169. Under s.169(1)(a), the Full Tribunal was to hear the appeal “by way of a re-hearing”. At the same time, s.169(4) declared that an appeal to the Full Tribunal –

“is not required to be conducted as a hearing de novo.”

The Full Tribunal was given power to make any order which the Tribunal itself could have made, and to make an order for costs under s.169A.[16] On the appeal hearing, the Full Tribunal could –

“(a)have regard to the record of the hearing before the Tribunal at first instance, including the record of any evidence taken in that hearing;

(b) receive fresh evidence itself.”

[16]Section 169(1)(b).

DH’s notice of appeal ran to nine pages and 19 paragraphs, but it made perfectly clear what his concerns were about the deficiencies in the Tribunal’s hearing and decision. His first set of grounds appeared under the heading “Fairness of the Procedure”. The notice contended that the Tribunal had failed to apply s.407 of the 1996 Act, which is headed “Duty to act fairly”. The section provided:

“The Tribunal must act fairly and according to the substantial merits of the case in all matters before it.”

Specifically, DH complained that:

“... the Tribunal dismissed my complaints before allowing ... the counsel of the Tribunal and myself to cross-exam [sic] the legal practitioner and tender my evidences. The Tribunal did not given me enough and reasonable opportunities to provide evidences, which may be the evidence he required.”

Further, DH complained that –

“The Tribunal ignored all of my complaints about the legal practitioner’s misconducts in my statements, which is drafted by [counsel assisting], from paragraphs 16 to 20.”

The notice of appeal went on to point out, quite correctly, the breadth of the definition of “dispute” in the 1996 Act; the general principles of professional conduct set out in s.64 of the Act; and the definition of “misconduct” set out in s.137 of the Act. The notice of appeal then listed, in similar terms to the statement of case itself, the instances of misconduct which DH had expected the Tribunal to deal with.

When asked by the Full Tribunal to “concentrate on what you say was the fault in the previous Tribunal’s reasons”, DH referred to s.407 and said:

“But... the Tribunal only deals with part of [the complaint], that’s the minor thing. The main dispute for my complaint brings to the Tribunal is about the misconduct of the solicitor but the Tribunal didn’t deal with it at all.”[17]

[17]T25.

Later he said:

“The Deputy Registrar ignore all of my complaints in relation to the solicitor misconduct. The misconducts of the solicitor are the fundamental of my complaint. If I haven’t believed that my loss was caused by the solicitor’s misconduct I wouldn’t have complained at the first instance.”[18]
Later –
“... The Deputy Registrar ignored the important part of my complaint, the misconduct of the solicitor. He didn’t deal with it at all, this is substantial of my complaint. He didn’t mention it in his decision at all. I think that’s not fair.
... I wonder whether that is because the Deputy Registrar doesn’t have the authority or power to deal with the solicitor’s misconduct. If he doesn’t have the authority he should let me know or point out in his decision rather than ignore my complaint about the solicitor and misconduct and dismiss my complaint. I don’t believe that the purpose of the Tribunal is set out.”[19]

[18]T27-8.

[19]T30-1.

Various responses were made to this submission. First, the Deputy Chairman of the Full Tribunal said, in effect, that the Tribunal had dismissed the allegations of misconduct on the merits:

“Clearly the Deputy Registrar did not accept that you were pressured or you settled the case because of improper pressure from the barrister or your solicitor. The Deputy Registrar decided otherwise. Now, that’s – you’re not happy with that and you don’t agree with that decision on his part, but that’s not for this Full Tribunal to – do, you know the phrase ‘second guess’? To come up with a difficult different factual conclusion. It was open to the Deputy Registrar to reach that conclusion, that you didn’t settle because of pressure, you settled because in the end, after considering everything, they were the instructions you decided to give your solicitor. Now I think I can speak for the other members of the Tribunal, that’s something we can’t go back on again. That is reconsidering the Registrar’s thinking, not the reasons, not demonstrating a fault or mistake in his reasons.”[20]
[20]T34-5.

Later –

“... the Tribunal thinks that we can infer from the reasons given by the Deputy Registrar that he found there was no manipulation or improper conduct on the part of the solicitor in his dealing with the independent valuer.”

On our reading of the transcript of the Tribunal hearing and the Tribunal’s reasons, there is nothing to suggest that the Tribunal even turned its mind to the misconduct allegation.

Next, counsel for AAC told the Full Tribunal that the allegations of misconduct had not been dealt with at all –

“because they were regarded by the Tribunal as ludicrous, that there was collaboration the solicitor was somehow bribed by AAMI or something to act against his interests, which is what he appears to be saying now, which is just nonsense.”[21]

[21]T37.

The matter was not mentioned again until after the Deputy Chairman of the Full Tribunal had ruled that DH had “failed to demonstrate fault in the reasons for decision given by the Deputy Registrar” save in respect of two of his loss claims. When DH was asked if he understood that the Full Tribunal had ruled that there was a case to answer in respect of those two amounts, he said:

“Yes that is clear but didn’t mention about my point about the misconduct issue.”[22]

[22]T64.

In response, the Deputy-Chairman said:

“That’s no part of this Tribunal’s function. Our purpose is to decide whether there was a fault in the reasons for decision given by the Registrar in his reasons of 10 March.”[23]

[23]T[ ].

At this point, DH repeated his puzzlement that the Tribunal had dealt with the financial loss claims in paragraph 21 of his statement of case, but had not dealt with the misconduct allegations in paragraphs 16-20 of that document.[24] He pointed out that the 1996 Act “definitely covered” misconduct and said:

“If the Tribunal don’t deal with this, where should I go, that’s the point.”[25]

[24]Set out in para [ ] above.

[25]T66.

At this point, counsel assisting submitted that the Tribunal had no jurisdiction to deal with misconduct matters.

“The client probably misunderstands the particulars of dispute in the sense that an allegation is an allegation which gives rise to a loss, it doesn’t have any significance in terms of the misconduct. It’s not a misconduct allegation, it’s an allegation which is alleged to have given rise to a loss.”[26]
[26]ibid (emphasis added).

The failure to deal with misconduct

The Full Tribunal’s refusal to deal with the misconduct allegations was again emphasised by DH in this Court, both on 24 November 2005 and on 6 April. In our view, that refusal raises three questions of law. The first concerns the nature of the hearing conducted by the Full Tribunal.

As we have noted, the appeal was by way of re-hearing, with the Full Tribunal having the power to take fresh evidence. The Full Tribunal adopted the approach identified by counsel assisting, as follows:

“This appeal ...has two steps to it. First of all the appellant must satisfy this Full Tribunal of some error in the decision at first instance. That has been the normal practice of this Full Tribunal. There are authorities of the Tribunal but that is the first step and it’s backed up by High Court authority. Once an error has been discovered it is then for the Full Tribunal to determine how and in what form a re-hearing should take place. But that first hurdle is the important one.”[27]

[27]T3.

In its reasons, the Tribunal referred to two previous decisions of the Full Tribunal as supporting this approach. In Nicholas O’Donohue & Co v Maluk,[28] the Full Tribunal said:

“We should say at the outset that a person is not entitled to have a re-hearing of an appeal simply because he thinks the Registrar was wrong in a decision he gave. He has to show some error of law or something which vitiates the decision below.”

[28]T77707 of 1999.

In Shulkes Ross v Kourlas,[29] the Full Tribunal said:

“The Registrar was clearly entitled to reach the conclusions he reached. His duty was to decide where the truth lay and he did decide where the truth lay. His conclusion cannot be re-investigated simply because the appellant does not agree with it. The appellant cannot appeal on the mere ground that the Registrar concluded against him and in favour of the practitioner but that indeed is his only ground of appeal ... ground of appeal as stated in the Notice of Appeal, that is to say, that he does not agree with the findings of fact by the Registrar.”

[29]T0206 of 1999.

In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission,[30] the High Court said of an appeal by way of re-hearing:

“Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of hearing de novo. In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing.
Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of re-hearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of re-hearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error.”[31]

[30](2000) 203 CLR 194.

[31]At [11]-[14] per Gleeson CJ, Gaudron and Hayne JJ.

The question of law which arises is whether the Full Tribunal made a jurisdictional error, that is, mistook its appeal jurisdiction, first by requiring DH to point to some error on the face of the Tribunal’s reasons, as a pre-condition of the Full Tribunal embarking on a re-hearing; and secondly by purporting to limit the re-hearing to those matters in respect of which such error was shown. By way of contrast, when this Court hears an appeal from a decision of the County Court, (which is an appeal by way of re-hearing) the Court conducts a full re-hearing, examining all of the issues raised and all of the evidence given before the Court at first instance and, if necessary, receiving fresh evidence. Having done that – and not before – the Court of Appeal decides whether there is error in the decision below. If there is, the Court of Appeal can then exercise its “appellate powers” to make a different order in the proceeding.

The second question of law is whether the Full Tribunal fell into error in ruling that it had no jurisdiction to address the misconduct complaints. DH’s proposed question 10 is in the correct form to raise that question of law. It asks:

“Did the Full Tribunal err in law in holding to the effect that the LP Tribunal had no jurisdiction to deal with [AAC’s] unsatisfactory conducts and misconducts raised by the... complaint?”

His proposed question 13 raises the same point in a different way, namely, whether the refusal to deal with the misconduct allegations was a breach of natural justice.

As counsel assisting told the Full Tribunal, the allegations were not allegations of misconduct as such, but allegations of misconduct which DH said had given rise to loss.[32] (As we have seen, that is exactly how DH himself had put it in his Complaint Form). On the face of it, therefore, the allegations of misconduct had to be investigated, as they were at the heart of the “dispute” which had been referred to the Tribunal. That an investigation of the misconduct allegations was relevant and necessary was implicitly acknowledged by the Full Tribunal itself, in its statements that the Tribunal at first instance must be taken to have considered and rejected the allegations of misconduct.[33]
[32]T66.
[33]See para [58] above.

At one point, counsel assisting told the Full Tribunal that he had tried without success to explain to DH “the distinction between conduct and disputes”. Presumably, this was a reference to the fact that disputes between clients and practitioners were dealt with by Division 1 of Part 5 of the 1996 Act, whereas complaints about practitioners’ conduct were dealt with under Division 2 of the 1996 Act. Whereas a dispute was notified by a written request in accordance with s.123(1), a complaint about conduct was governed by s.140. Different procedures existed for dealing with a dispute on the one hand and a conduct complaint on the other.

No case to answer

In our view, a further question of law arises as to whether the Tribunal – and later the Full Tribunal – fell into error in entertaining and upholding a no-case submission.

DH seeks to characterise the error as a breach of natural justice. His proposed question 12 is in the following terms:

“Did the Full Tribunal err in law in holding to the effect that [DH] was not denied procedural fairness or natural justice by the Tribunal ‘in respect of paragraphs 21(a), (b), (c) and (f) of the particulars of loss dated 16 November 2003.’”

DH here refers to the conclusion of the Full Tribunal that DH had “failed to demonstrate fault” in the reasons given by the Deputy Registrar for upholding the no-case submission in respect of those paragraphs.

Axiomatically, both the Tribunal and the Full Tribunal were obliged to accord procedural fairness to DH. Relevantly for present purposes, that meant that DH must be given a reasonable opportunity to present his case. The Tribunal’s obligation to afford him a fair hearing was emphasised by s.407 of the 1996 Act which, as we have noted, obliged the Tribunal to –

“act fairly and according to the substantial merits of the case in all matters before it.”

DH’s proposed question 18 asks, quite properly, whether the Full Tribunal discharged that statutory duty.

Hence, there is a question of law as to whether the Full Tribunal denied natural justice to DH by upholding the no-case ruling made by the Tribunal in relation to paragraphs (a), (b), (c) and (f) of the loss claim. A related question of statutory interpretation arises, as to whether, in view of the statutory duty of fairness imposed by s.407, and the requirement to act “according to the substantial merits of the case,” Parliament can have intended that the Tribunal and the Full Tribunal should have power to entertain and uphold a no-case submission.

The “no jurisdiction” ruling

Proposed question 3 is in the following terms:

“Did the Full Tribunal err in law in holding to the effect that the appellant’s claim in respect of damage of $200 on 21 May 2001 was a non-case because ‘[it] was not part of the complaint made to Victorian Lawyers RPA Limited and therefore does not form part of this dispute?’”

The question concerns DH’s claim for $200 in lost wages, said to be attributable to the adjournment on 21 May 2001.[34] As noted earlier, DH was not told until the morning of the hearing that the case was to be adjourned, by which time it was too late for him to go to work. The adjournment was at the request of AAMI, which was ordered to pay $650 by way of costs thrown away. Unlike what occurred on the 24 July adjournment, AAC sought no order that AAMI pay DH’s lost wages.
[34]See paragraph 21(c) of the statement of case: para 40 above.

In the hearing before the Tribunal, counsel assisting submitted that the Tribunal had no jurisdiction to hear DH’s claim in respect of the $200. Jurisdiction was lacking, he argued, because this particular claim had not been identified by DH in his Complaint Form. The Tribunal accepted this submission, and ruled that it had no jurisdiction. The Full Tribunal considered that there was no error in this ruling.

Proposed question 3 challenges the correctness of this ruling on jurisdiction. It cannot be doubted that it raises a question of law. Questions of jurisdiction are, of course, fundamental.

Before us, counsel for AAC was unable to advance any submission as to whether the ruling was correct. He submitted:

“It may be an arguable ground, but the fact that is it concerns $200 and, in my submission, it’s trivial. It’s not worth wasting the costs that would be incurred.”

This was a remarkable submission indeed. As the Court pointed out in argument, it has never been held that a question of law was ineligible for consideration merely because the decision to which the question related concerned too small an amount of money. Axiomatically, every person is entitled to have a decision which affects him/her made in accordance with law. That is the very purpose of a provision like s.170, permitting an appeal from a tribunal decision on a question of law. In a society operating under the rule of law, lawful decision-making is an end in itself.

Item (d): the $200 payable to DH for 24 July 2001

As noted above,[35] when the hearing on 24 July 2001 was adjourned because of AAMI’s non-appearance, a sum of $200 was ordered to be paid by the insurer to DH for wages lost that day. That money was retained by AAC and never forwarded to DH. It was purportedly brought to account in the document prepared by AAC dated 30 March 2002, entitled “Statement of Monies”. As noted earlier, that document set out amounts received and amounts paid by AAC.
[35]Para 19.

Before the Tribunal, counsel assisting correctly pointed out that the $200 was money received into trust by AAC on behalf of DH. AAC’s case was that it was entitled to set off this amount against fees payable to AAC by DH. Before the Full Tribunal, Aloe conceded that DH had never been asked to authorise the allocation of the $200 owing to him against costs payable.[36]
[36]T74, 88.

The Tribunal upheld the no-case submission on the ground that –

“the money has been accounted to the client by the legal practitioner by way of what appears to be a set-off of legal fees. Even so, there is no evidence of loss. It must be borne in mind that this is not a costs dispute but a pecuniary loss dispute.”[37]

(The reference to a “costs dispute” was a reference to a particular type of dispute, referred to in s.122(1)(a) of the 1996 Act. The Tribunal’s reference to that type of dispute was erroneous. DH was not challenging any account he had received. He was complaining that he had not been paid his $200 which had been received by AAC on his behalf.)

[37]Reasons para 10 – AB D4.

The Full Tribunal accepted the submission of counsel assisting that there was a case to answer on this point. Evidence was then led from Aloe and, in its ruling, the Full Tribunal accepted this evidence as confirming –

“the tentative view that the Tribunal had formed that [DH] had in fact not suffered any financial loss for which he should be compensated by [AAC] in respect of either [24 July 2001 or 21 September 2001]”.

Implicitly, the Full Tribunal accepted that DH had no ground of complaint in respect of AAC’s unauthorised setting-off of DH’s $200 against costs. His proposed questions 5, 15 and 16 challenge the correctness of that ruling. Those questions are properly raised. Since Aloe’s evidence was also relied on by the Full Tribunal in dismissing the claim for $200 in respect of 21 September 2001, it is to that evidence which we must now turn. In order for the evidence to be understood, reference must first be made to part of the cross-examination of DH before the Tribunal at first instance.

The account for $650 (proposed questions 9, 14, 15)

At the beginning of his cross-examination of DH in the Tribunal, Mr Rice for AAC asked him about an account dated 7 June 2001 from AAC, addressed to DH, showing an amount of $650 payable for professional services. Mr Rice asked DH whether he received that account on 7 June. He answered:

“Yes, I get this document, I believe it is in March 2002, just after I start ...”

DH did not finish that answer, but we would infer that he was referring to the time when he had commenced complaint proceedings against the barrister.

Referring to the adjournment on 21 May, to which the account related, Rice continued as follows:

“And the other side wanted to adjourn it, didn’t they? AAMI wanted to adjourn it?---I know that in the morning of the hearing, yes.
Yes, you were told that the other side had requested an adjournment?---Yes.
And you were told that they were paying for it?---No.
Well, you never paid for it, did you?---No.
And you have never been charged any costs relating to anything that happened on that day?---No.
I tender that account, sir, which in fact later evidence in the statement of moneys will show that that was in fact received from AAMI, they paid the $650.”[38]

[38]Tribunal transcript T31-32 (emphasis added).

Clearly, counsel for AAC wished to establish that DH had not been “charged any costs” for the adjournment of 21 May. As he pointed out to the Tribunal, AAC’s Statement of Monies clearly showed that AAC had received from AAMI the $650 in respect of the adjournment. In short, AAC’s case before the Tribunal was that “the $650” payable to it had in fact been paid by AAMI. That is, AAC had been fully covered for the professional costs set out in the account of June 2001.

Counsel for AAC once again relied on the June account before the Full Tribunal, but on this occasion a quite different significance appears to have been attached to the account. Following the decision of the Full Tribunal that there was a case to answer in relation to the two amounts of $200, Mr Rice was asked whether he wished to cross-examine DH on those matters. His response was as follows:

“No, sir, it’s common ground that Mr He agreed at the last hearing that he had received an account for legal fees of $650 in June 2001 which he didn’t pay.”

As we have seen, the transcript of the Tribunal hearing suggested otherwise. First, DH had not agreed that he had received the $650 account in June 2001. He had specifically recalled receiving it in March 2002. (March 2002 was also subsequent to the letter from AAC sending him the payment of $1425, being AAMI’s payment on the claim.) Secondly, it had not been suggested to DH that he was indebted to AAC in the sum of $650 for fees for the hearing on 21 May 2001. On the contrary, as Mr Rice had pointed out to the Tribunal, that account had been paid in full by AAMI at the time and hence DH had never been asked to pay it.

Relying on the June 2001 account, Mr Rice submitted to the Full Tribunal that it had been conceded by DH that there was a $650 account rendered “and that exceeds Mr He’s claim”.[39] Mr Rice summed up AAC’s position as follows:

“The situation is that there is an undisputed account for $650 and his claim is $400, so he still owes $250.”[40]

[39]T64.

[40]T70.

Mr Rice then called his client, Aloe. The examination-in-chief included the following exchange:

“And Mr He has never paid the account for $650?---Mr He has never paid us anything, let alone pay that account.”
Under cross-examination by DH, Aloe confirmed that the $650 –
“would have been our fees that Bakhaazi believed that – the fees that we were entitled to for appearing on the hearing on that day.”[41]

[41]T76.

DH asked Aloe why those costs had not been claimed from AAMI, which had occasioned the adjournment. Aloe told the Full Tribunal that there would have been a claim against AAMI but only for the fees of the barrister who, according to Aloe, had been paid for that day. (It was clear on the face of AAC’s Statement of Monies that no counsel’s fees had been incurred on that day. Counsel for DH appeared for the first time on 24 July 2001.) Aloe said that –

“I don’t think we as solicitors get orders for costs in the Magistrates’ Court when a matter is adjourned. We get some costs thrown away but unless we can establish a great amount we don’t get any costs. ... And the costs that they agreed to pay were counsel’s fees that were thrown away, I believe...”[42]

[42]T76-7.

AAC subsequently acknowledged that this evidence was false. In a written “Reply to Appellant’s Outline of Submissions” dated 21 November 2005 and filed with this Court, AAC stated (paragraph 12):

“... [O]nly now after a detailed perusal of the file has it become clear to Mr Aloe that the $650.00 for the adjournment on the 21^st May 2001 representing [AAC’s] costs thrown away by reason of the adjournment were costs payable to [AAC] and not costs payable for Counsel’s fees as deposed to at the hearing. The file contained a back sheet addressed to Counsel to appear at the hearing on the 21^st May 2001. Mr Aloe was of the belief when giving evidence that the $650 related to Counsel’s fees. Mr Aloe was incorrect and mistaken as to the abovementioned costs and how they were applied. Mr Aloe attributes it to the fact that he was not the author of the file and was requested to answer after a very quick perusal of the file at the hearing. The above aside the $650.00 has been accounted to the appellant in the statement of monies and has been utilised in paying outstanding disbursements in the matter.”

AAC was here conceding – more than 16 months after the Full Tribunal hearing - that the evidence Aloe had given to the Full Tribunal was false - mistakenly, rather than deliberately, false, but false nonetheless. Yet, as we have pointed out, it was this very evidence – and the submission advanced by Mr Rice that there was an outstanding debt of $650 – which was the foundation of the decision of the Full Tribunal to dismiss the claims.

DH picks up this point in a number of his proposed questions, specifically –

· proposed questions 4 and 6, attacking the Full Tribunal’s conclusion that DH suffered no financial loss in respect of either 24 July 2001 or 21 September 2001;

· proposed question 9, contending that the Full Tribunal acted on the basis of false and misleading evidence from Aloe; and

· proposed question 14, which raises as a natural justice question the Tribunal’s reliance on Aloe’s evidence “without applying credibility and reliability test”.

In our view, each of these questions does raise a question of law. Put at its simplest, the question is whether the Full Tribunal acted on a false basis – that is, mistook the facts - when it concluded that DH was indebted to AAC in the sum of $650 such that, even if he succeeded in his claims in respect of 24 July and 21 September 2001, he could establish no loss.

The sequence of events which we have described raises a number of issues of concern which were not adverted to during the hearing of the leave application on 6 April, but which will need to be addressed on the hearing of the appeal. They are:

· how it was that AAC’s case changed so significantly, and without notice to DH, between the Tribunal hearing and the Full Tribunal hearing, in relation to whether DH was indebted to AAC in respect of the June account;

· why AAC did not itself take steps, following the realisation that Aloe’s evidence on that point was false, to have the Full Tribunal reconvene, so that its decision could be made on the basis of the correct facts. As we have said, the claim that DH owed AAC $650, raised for the first time at the Full Tribunal, was the key to the dismissal of his appeal;

· why AAC’s acknowledgement of false evidence was not drawn to the attention of this Court by AAC during the hearing of the leave application, since it bore directly on several of the questions in respect of which DH was seeking leave and was directly relevant to a topic discussed with counsel during the hearing.

Mr Rice was asked about DH’s allegation that Aloe had perjured himself in giving evidence that DH was indebted to AAC for the $650. Mr Rice began by stating:

“...[I]f there is any error in what Mr Aloe may have said at any point, that is all taken care of by the statement of account [presumably, the Statement of Monies] which clearly accounts for every cent that was recovered and it accounts for it to Mr He. It’s conceded that there was no barrister’s fee for 21 May and no barrister’s fee for 21 May is claimed in [the Statement of Monies], which is a critical document because that’s the money and the money is costs received from the defendant for the adjournment, 21 May 2001, credit $650. That disposes of (a). So (a) becomes irrelevant.”

As the Court pointed out, however, the allegation in question was an allegation not of loss but of false evidence. The following exchanges took place:

“MAXWELL, P.: The allegation is not of loss, it’s of untrue evidence, and let’s take that in stages. It’s correct, is it, that Mr Aloe did state on oath that Mr He owed the solicitor $650?
MR RICE: Yes, but not for the first adjournment, it was for an account which was rendered for $650 and there was an account rendered for $650 which Mr He never paid.
MAXWELL, P.: No, but the question is whether – it may not be relevant in the end, but was it false to state that Mr He owed $650. I gathered from your concession that it was false.
MR RICE: No, it was not false, but if he ever stated it was relating to the adjournment, there was an account for $650 rendered.
MAXWELL, P.: You know what he said. Did he say that it was relating to the adjournment? We are given a transcript reference there.

MR RICE: I don’t believe that he did actually say it.”

There appears to be some inconsistency between these answers and what had been said by AAC in acknowledging the falsity of Aloe’s evidence to the Full Tribunal. Aloe had given evidence that DH owed AAC $650 for the first adjournment, on 21 May 2001. It was that evidence which he later retracted.

We have so far dealt with, and allowed, proposed questions 3-6, 9, 10, 12-14 and 18. Taken together, those questions will make it necessary to examine on the appeal the full history of the matter and virtually every aspect of the proceeding before the Full Tribunal. As we have indicated, it will also be necessary to look closely at what occurred before the Tribunal.

We would also grant leave in respect of proposed questions 1, 2, 7 and 11. We would not grant leave in respect of questions 8 and 17, as neither raises a question of law.

Accordingly, DH will have leave to substitute in his notice of appeal proposed questions 1-7, 9-16 and 18.

Before concluding, we make the following observations. This will be an important appeal, in two distinct respects. First it illustrates how a small claim can turn into a large grievance. What begins as a complaint about a lawyer’s handling of the claim turns into a further complaint about the process by which the initial complaint is investigated. “All I want,” DH says, “is a fair hearing”. Secondly, this appeal raises some important issues about the approach to be taken by tribunals dealing with complaints against professional service providers.

One matter of particular concern to us is this. If DH succeeds in establishing – for example – jurisdictional error or a breach of natural justice or a fundamental mistake of fact by the Full Tribunal in relation to the purported $650 debt, that will mean that the decision of the Full Tribunal cannot stand. On ordinary principles, the matter would have to be remitted to the Tribunal for a re-hearing. Under the 2004 Act, that would be a proceeding before the Victorian Civil and Administrative Tribunal.

That cannot be a very attractive prospect for anyone involved, given that the complaint relates to events which occurred in 2001, and given the amount of time already given to these issues and the inevitable stress and anxiety for all concerned. If a re-hearing is the only course open, then that will of course occur. But, in the hope that it may be possible to achieve a more satisfactory outcome, without further proceedings, we propose to provide a copy of these reasons to the Legal Services Commissioner. We will ask the Commissioner to review the history of the matter in the light of these reasons and to consult with the parties in an endeavour to identify some mutually satisfactory solution.

In the event that the appeal proceeds, we would invite the Commissioner to appear before the Court at the hearing of the appeal as amicus curiae, to make submissions both about the general issues of tribunal process and about how justice might best be done in the present case.

---

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