He v Aloe & Co Pty Ltd (No 3) - [2010] VSCA 158

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2008 3726

DAMING HE	Appellant
	v
ALOE & CO PTY LTD (No 3)	Respondent

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JUDGES	MAXWELL P, BONGIORNO JA and HANSEN AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	4 August 2009
DATE OF JUDGMENT	25 June 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 158
JUDGMENT APPEALED FROM	Daming He v Aloe & Co Pty Ltd (Legal Practice) [2008] VCAT 3 (Judge Bowman, Member Shattock and Member Campbell)

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TRIBUNALS – Victorian Civil and Administrative Tribunal – Dispute between client and legal practitioner – Allegations of misconduct – Claim dismissed with indemnity costs – Appeal as of right on questions of law – Appeal raised questions of fact – Findings open – No denial of natural justice – No error of law – Discretion on costs properly exercised – Appeal dismissed with costs.

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APPEARANCES:	Counsel	Solicitors
The Appellant appeared in person
For the Respondent	Mr A Scriva	Aloe & Co Pty Ltd

MAXWELL P:

I have had the advantage of reading in draft the reasons for judgment of Hansen AJA. I too would dismiss the appeal with costs, for the reasons which his Honour gives.

BONGIORNO JA:

This appeal should be dismissed with costs for the reasons given by Hansen AJA.

HANSEN AJA:

Daming He (‘the appellant’) appeals from orders of the Victorian Civil and Administrative Tribunal (‘the Tribunal’) made on 16 January 2008 dismissing his application against a firm of solicitors called Aloe & Co Pty Ltd (‘the respondent’) by which he sought compensation of $1,479.08, allegedly suffered as a result of misconduct by an employee solicitor of the respondent who had represented the appellant in a motor vehicle damage claim in the Magistrates’ Court. Under s 170(1) of the Legal Practice Act 1996 (Vic) (‘the Act’), which was in force at the relevant time, the appellant has an appeal as of right from the Tribunal to the Court of Appeal on a question of law. For reasons stated below, the appeal must fail as no question of law is raised and no error of law has been established.

The proceeding has a long history, and to understand the present appeal it is necessary to refer to some of that history.

On 30 October 2000 the appellant’s motor car was involved in a collision with another motor car. The appellant retained the respondent to act for him in relation to a claim against the other driver in respect of the damage done to the appellant’s car. The respondent advised the appellant that he needed to obtain a loss assessor’s report before the matter could be taken any further. The appellant engaged a loss assessor, Daryl Fanning, who assessed the car as a write off. He estimated the cost of

repairing the car to be in excess of $4,000, the pre-accident value of the car as $1,950, and allowing $50 for salvage, the net loss was $1,900. The appellant paid Fanning $126.50 for his report.

The appellant commenced a proceeding in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] VSCA 158
Decision Date: 25 June 2010

CaseChat Overview and Summary

He v Aloe & Co Pty Ltd (No 3) involved a dispute between a client and his legal practitioner, Aloe & Co Pty Ltd, which reached the Supreme Court of Victoria. The client, Mr He, alleged misconduct on the part of the law firm in relation to his legal representation. The Victorian Civil and Administrative Tribunal (VCAT) had dismissed Mr He’s claim, and he appealed to the Supreme Court on questions of law.

The primary legal issues before the court were whether the appeal was properly taken as of right on questions of law, and if not, whether the appeal raised questions of fact that were open to be determined by the Supreme Court. Additionally, the court had to determine if the findings of VCAT were open, whether there was a denial of natural justice, if there was an error of law, and whether the discretion on costs was properly exercised by VCAT. The court examined the appeal's grounds, which were not strictly confined to questions of law, and considered whether these grounds could be interpreted as raising questions of fact.

The court found that the appeal was not taken as of right on questions of law, as the grounds included factual elements. However, the court did not consider this to be a denial of natural justice, as the appeal raised questions that could be interpreted as legal in nature. The court reviewed the findings of VCAT and concluded that the tribunal’s findings were open and not erroneous. The court also found that VCAT had properly exercised its discretion in awarding indemnity costs to the respondents. Consequently, the appeal was dismissed with costs.

The Supreme Court ordered that the appeal was dismissed with costs to be paid by the appellant to the respondents. The court's decision upheld the findings of VCAT and confirmed the dismissal of the client's claim against the law firm, along with the award of costs.

Orders