He v Aloe & Co Pty Ltd (No 3)
[2010] VSCA 158
•25 June 2010
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 the Magistrates’ Court in February 2001. The defendant filed a statement of expert evidence to the effect that the net pre-accident value of the car was $800 and that the appellant’s claim for $1,900 was inflated and did not take into account the age or condition of the vehicle. Negotiations and letters followed, and the case was listed for hearing on several occasions on which the appellant attended but the hearings were adjourned. One adjournment was on 21 September 2001 when Fanning failed to attend court.
On 30 November 2001, when the case was listed for hearing, the defendant’s loss assessor conferred with Fanning and, as the Tribunal found, it was only then that Fanning became aware that some of the damage to the appellant’s car pre-dated the accident. Fanning advised the appellant’s barrister as to the drastic effect this could have on his evidence, and recommended in writing that the appellant accept an offer of $1,425 made by the defendant. The Tribunal found that the appellant instructed his barrister to settle for $1,425 plus costs,[1] and the case was settled on that basis.
[1]It appears that as a result of the dispute, the respondent ultimately abandoned any claim to its solicitor client costs from the appellant.
On 24 January 2002 the respondent forwarded to the appellant a cheque for $1,425. The Tribunal observed that this payment represented a ‘very fair, if not generous, outcome.’
Unfortunately, however, the appellant became unhappy with the outcome.
By letter dated 28 January 2002 he complained to the Legal Ombudsman about the conduct of his barrister. The complaint was referred to the Victorian Bar. Following a written response from the appellant’s barrister dated 8 March 2002, the Ethics Committee resolved to take no further action.
On 20 March 2003 the appellant complained to the Law Institute about the respondent firm. Under the Act, disputes between clients and practitioners were dealt with under Division 1 of Part 5. The term ‘dispute’ was 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;
On the other hand, ‘complaints about practitioners’ and firms’ conduct’ (divided into ‘misconduct’ and ‘unsatisfactory conduct’) were dealt with under Division 2 of the Act.
To initiate the ‘dispute resolution process’ provided for by the Act, the appellant 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.[2]
[2]Section 123(1).
The appellant filled out and submitted a document entitled ‘Complaint Form’ (on the letterhead of Professional Standards – Victorian Lawyers RPA Ltd), dated 20 March 2003. The form was designed to cover both a ‘dispute’ and a ‘complaint’. In the section of the form headed ‘Cause of Complaint’, the appellant ticked boxes the effect of which was to make the following statement:
By 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 appellant attached to the Complaint Form a detailed description of the conduct complained of and concluded as follows:
Therefore [the respondent] is liable to pay the financial loss, which I have suffered, under fair trading legislation because of Mr Bakhaazi’s[3] fraud conducts [sic].
[3]Mr Bakhaazi was the employee solicitor of the respondent who had the conduct of the appellant’s motor vehicle compensation claim.
A number of items of loss were then specified, totalling $1,279.08, as follows:
(a)$475.00, being the difference between the alleged value of the vehicle ($1,900.00) and the amount recovered ($1,425.00).
(b) $126.50, being ‘car assessing fee’.[4]
(c) $200.00, being loss of income on 24th July 2001.
(d) $200.00, being loss of income on 21st September 2001.
(e)$277.58, being interest on $1,900.00 from 30 October 2000 to 30 November 2001.
The ‘loss of income’ at (c) and (d) related to the appellant’s absence from work to attend the Magistrates’ Court on two dates when the proceeding was adjourned.
[4]This was the fee paid by the appellant directly to Fanning.
By letter dated 1 April 2003, Victorian Lawyers RPA Ltd sought from Mr Aloe, the principal of the respondent, a response to the appellant’s allegations, both in terms of the ‘dispute’ and the ‘conduct complaint’. Aloe responded by letter dated 4 April. By letter dated 12 May 2003, a Delegate of Victorian Lawyers RPA Ltd advised the appellant that, as to the ‘pecuniary loss claim’, he had spoken to Aloe but had been unable to settle the dispute, and that the appellant was entitled to refer it to the Legal Profession Tribunal. As to the ‘conduct issues’, the Delegate advised that ‘this allegedly relates to the actions of Mr Bakhaazi and as Mr Bakhaazi cannot be located I will have to close this aspect of your complaint without a final determination as I cannot seek a written response from him.’
The appellant referred the dispute to the Legal Profession Tribunal, which advised the appellant that it was necessary to prepare a document setting out his claim against the legal practitioner. Arrangements were subsequently made for counsel assisting the Legal Profession Tribunal to draft – in consultation with the appellant – a document which was called the ‘statement of case’. It is not necessary to set out the statement of case. I merely note that it made numerous allegations against Bakhaazi, including that he had had manipulated Fanning to state that $1,425 was a reasonable offer, and had deceived, threatened and coerced the appellant into settling his case for $1,425. It was also stated that, as a result of the legal practitioner’s acts or omissions, the appellant had suffered a loss of $1,479.08. The items making up the loss were the same as those above, except that an additional $200 was sought in respect of the appellant’s income allegedly lost because of an adjournment on 21 May 2001.
On 10 March 2004 the dispute was heard and dismissed by a Deputy Registrar of the Legal Profession Tribunal. An appeal to the Full Tribunal was dismissed on 6 July 2004.
On 7 July 2006 the appellant was granted leave to appeal to the Court of Appeal, and on 26 October 2006 the Court allowed the appeal and remitted the case for hearing before the Tribunal.[5] The Court held among other things that the Full Tribunal erred in ruling that it had no jurisdiction to deal with the allegations of unsatisfactory conduct and misconduct raised by the appellant.[6] However, the Court noted[7] the distinction between ‘disputes between clients and practitioners or firms’[8] on the one hand and ‘complaints about practitioners’ and firms’ conduct’[9] on the other. The Court added:
As we have pointed out, this was not a conduct complaint as such. [The appellant] would be under a misapprehension if he thought now that he could pursue a misconduct complaint as such. What [the appellant] brought to the Tribunal, and was entitled to have investigated, was a dispute falling within Division 1 of Part 5, in which [the appellant] alleged that the conduct of the solicitor, which he characterised as misconduct, had caused him loss. What he alleged to be misconduct by the solicitor had therefore to be investigated if the Tribunal was to discharge its function according to law.[10]
[5]He v Aloe & Co Pty Ltd [2006] VSCA 235.
[6]Ibid [71].
[7]Ibid [72].
[8]Dealt with under Division 1 of Part 5 of the Act, a dispute being notified by a written request in accordance with s 123(1).
[9]Conduct complaints being dealt with under Division 2 of the Act.
[10]He v Aloe & Co Pty Ltd [2006] VSCA 235, [73].
Upon remittal, the Tribunal[11] heard the dispute over several days in 2007 and delivered reasons on 16 January 2008, dismissing the application. On 29 August 2008 the Tribunal ordered that the appellant pay the respondent’s costs of the application on an indemnity basis, and reserved its decision on the appellant’s application for an indemnity certificate. The Tribunal published separate written reasons for its primary decision and the decision on costs.[12] Finally, by further order on 1 May 2009, the Tribunal granted the appellant a certificate pursuant to s 8(2) of the Appeal Costs Act 1998 (Vic) ‘in respect of application’.
[11]Differently constituted.
[12]The reasons for the costs decision were published following a request from the appellant for written reasons, received by the Tribunal on 1 December 2008.
In the primary decision, the Tribunal concluded that Aloe (the respondent’s principal) was a witness of truth, that the appellant was not a ‘reliable witness of truth’, and that where there was any clash between their evidence on factual matters, the Tribunal preferred and accepted Aloe’s evidence. The Tribunal found that the respondent’s employee solicitor Bakhaazi did not behave honestly. Among other things, when the Magistrates’ Court proceeding was adjourned on 21 May 2001, Bakhaazi obtained a costs order against the defendant (which included a barrister’s fee when no barrister had actually been engaged), which the Tribunal said ‘appears to have been fraudulent’. But the respondent, on discovering Bakhaazi’s behaviour, had refunded to the defendant in full the amounts wrongly obtained on the costs order. This did not affect the payment of the full settlement amount to the appellant, thus Bakhaazi’s behaviour did not cause the appellant any loss.[13]
[13]Daming He v Aloe & Co Pty Ltd (Legal Practice) [2008] VCAT 3, [8(1)] and [8(4)].
As to the adjournment on 21 September 2001 caused by the failure of Fanning to attend court, the Tribunal found that the respondent had borne the full amount of costs consequently ordered in favour of the defendant and also the appellant’s barrister’s fee. No payment was made by the appellant, who ultimately received the full settlement amount of $1,425.
Then, by way of summary, the Tribunal stated that the appellant had failed to establish any loss for the following reasons:
(a)We do not accept that [the appellant] did not understand the settlement into which he entered at Melbourne Magistrates’ Court on 30th November 2001 and we do not accept that he settled the matter as a result of some unfair duress.
(b)[The appellant] received the full settlement amount of $1,425.00 without the deduction of any legal costs.
(c)It also seems to us that such a settlement was fair and reasonable. The revelation that not all the damage to the vehicle was the result of the subject accident would clearly have affected the situation and have a considerable impact upon Mr Fanning’s evidence. The ultimate settlement figure was still better than the averaging of the assessments.
(d)We do not accept that [the appellant] lost any wages or any annual leave entitlements by reason of attendances at court or adjournments of the proceeding. He has not satisfied us in relation to this, and the records of his then employer would indicate that the contrary is the case. As previously stated, the $200.00 witness expenses awarded in his favour on 24th July 2001 is well and truly offset by disbursements which [the respondent] incurred in the presentation of his case, and it is an amount to which he had no entitlement in any event.
(e)We do not accept [the appellant’s] argument that he was in some way entitled to an amount greater than the nett loss assessed by his own expert …
(f)We do not accept that [the appellant] suffered any loss in respect of Mr Fanning’s fee of $126.50 …
(g)[The appellant] appears to be claiming additional amounts over and above the amount originally claimed. He has referred to emotional damage. No evidence of any substance was placed before us which would justify the making of such an order, …
(h)In his written submissions, [the appellant] has now claimed that his actual damages exceed $100,000.00. Again, there is nothing that has been placed before us that would justify the ordering of any part of that amount, …
As to (f), the Tribunal concluded that the appellant had no entitlement to recover the $126.50 he paid to Fanning, as the Tribunal was not satisfied that there was an agreement that the fee would be refunded in the event of success in the litigation.
The appellant relies on an amended notice of appeal (‘the notice of appeal’) which contains 22 grounds (each purporting to state a question of law) and runs to 16 pages. Many of the grounds contain long lists of ‘particulars’, some running to well over a page. The appellant also filed a written outline of submissions. The respondent filed a brief written outline, and the appellant filed a written reply to the respondent’s outline. The appellant also made lengthy oral submissions, followed by counsel for the respondent who made brief oral submissions.
The first thing to note is that while the appellant’s grounds of appeal purport to state questions of law – in the sense that they ask whether the Tribunal erred in law in reaching particular conclusions identified in the grounds – on analysis, the grounds raise questions of fact rather than law. As Maxwell P pointed out to the appellant at the commencement of the hearing, an error of fact does not give rise to an error of law unless the factual finding (or inference) was not open to the Tribunal and, further, that the erroneous finding (or inference) was critical to the ultimate conclusion reached.[14] For reasons given below, the appellant has not demonstrated that any of the Tribunal’s findings referred to in the notice of appeal were not open, apart from the Tribunal’s erroneous statement that the respondent had provided a written submission on costs.[15] That factual error was trifling and plainly did not disadvantage the appellant or affect the Tribunal’s decision. And even assuming that any of the other findings complained of were erroneous, the appellant has not demonstrated that those findings, whether taken alone or in combination, affected the Tribunal’s ultimate conclusion. That is because the Tribunal’s ultimate conclusion – that the appellant suffered no pecuniary loss because he received the fair and reasonable compensation for which he agreed to settle the case – was plainly open. It follows that the appellant has not established any error of law.
[14]S v Crimes Compensation Tribunal [1998] VR 83, 89–90 (Phillips JA).
[15]See ground 21 below.
I deal with each ground of appeal in turn.
Ground 1 alleges that the Tribunal erred in law in holding that the ‘assessed net value of the car included salvage and residual registration’. These quoted words are the appellant’s description only, and the Tribunal made no such finding. It is clear from the particulars to ground 1 that the appellant’s reference to ‘assessed net value’ concerns the figure of $1,900 originally stated by Fanning. However that figure was simply irrelevant, having been overtaken by the revised assessment flowing from the experts’ conference which became the settlement figure of $1,425. It follows that ground 1 is misconceived and fails.
Ground 2 alleges that the Tribunal erred in law in holding ‘to the effect that the Appellant’s claim in respect of damage of $475, being the shortfall between the assessed loss of $1,900 and the recovered loss of $1,425, was unrecoverable [because the appellant made admissions to Fanning that some of the damage to the car pre-dated the accident]’. This is the appellant’s description of the alleged finding. But in fact, the Tribunal did not find that an amount of $475 was unrecoverable. It did, however, make a finding that the appellant made admissions to Fanning about pre-accident damage to his motor car.
As to the latter finding, both before the Tribunal and this Court the appellant denied having made such admissions to Fanning. In this Court he submitted that the admissions were derived from written statements of his barrister and Fanning who were not called as witnesses before the Tribunal and whose reliability thus could not be tested. I have regard to those matters, but in my view the findings were open. The Tribunal was not bound by the rules of evidence,[16] and was entitled to accept the written statements that the appellant made such admissions, and reject the appellant’s assertions to the contrary. Further, the appellant did not request that his former barrister and Fanning attend for cross-examination.
[16]Victorian Civil and Administrative Tribunal Act 1998 s 98(1)(b).
Having made the finding as to pre-accident damage, the Tribunal concluded that in the circumstances the settlement figure of $1425 was generous and it was ‘unlikely, if not highly improbable, that a Magistrate would have ordered an amount in excess of the settlement figure.’ That conclusion was plainly open to the Tribunal. Fanning’s initial figure of $1,900 was simply irrelevant, having been overtaken by the revised assessment flowing from the experts’ conference and in light of the revelation of the pre-accident damage. Further, the Tribunal found that the appellant freely instructed his lawyers to settle the case for $1,425. The question of there being some additional (unrecoverable) amount of $475 simply did not arise. Ground 2 is not made out.
Ground 3 alleges that the Tribunal erred in law in holding that ‘the $126.50, being the cost of Mr Fanning’s report, was not a disbursement that ought to be claimed from the insurer by the respondent’. Again, these quoted words are the appellant’s description, and the Tribunal made no such finding. The appellant submitted in this Court that his claim before the Tribunal was that ‘the respondent promised all costs would claim back from the insurer’. He also asserted in his written submission that Aloe’s ‘deposition was the respondent claimed the $126.50 from the Insurer and kept it (AB Ab191 l.31)’. In fact, at this latter reference Aloe did not specifically say that the respondent claimed the fee from the insurer; he said that ‘we kept the assessor’s fees’. While that might found an inference that the respondent claimed the fee from the insurer, nevertheless the Tribunal found that it was not clear what had happened with the fee after the appellant originally paid it to Fanning. In my view, that finding was open on the evidence. In any event, even if it be assumed in the appellant’s favour that the Tribunal should have concluded that the respondent did recover the fee from the insurer, it did not follow that the appellant was entitled to be reimbursed the fee. That is because the Tribunal rejected the appellant’s case that the respondent had promised him that the fee would be refunded to him in the event of success in the litigation. Ground 3 is not made out.
Ground 4 concerned the Tribunal’s finding that the appellant did not lose annual leave entitlements by attending court. The appellant submitted that the Tribunal was wrong to rely on a document (a particular version of his ex-employer’s leave records) which the respondent himself had stated he did not rely on. In my view it is not clear that the Tribunal relied on that document. The Tribunal appeared to state that regardless of which of two different documents was relied on, the outcome was the same, namely that the appellant had not established as a fact that he had lost any annual leave entitlements by attending court. That was a factual finding open on the evidence. Ground 4 is not made out.
Ground 5 fails as it is based on the erroneous premise that the Tribunal sought to set aside an order of the Magistrates’ Court.
Ground 6 alleges that the Tribunal erred in law in holding that ‘the respondent was legitimate to snatch the $200 ordered by the Magistrates’ Court for the appellant’s witness expenses’. Again, these quoted words are the appellant’s description, and the Tribunal made no such finding. The Tribunal found that the appellant was never entitled to the $200 for witness expenses, and in any event that this amount was offset by disbursements incurred by the respondent in the presentation of the appellant’s case. Ground 6 is not made out.
Ground 7 alleges that the Tribunal erred in law in making the above finding as to the disbursements offsetting the witness expenses. The finding was one of fact which was open on the evidence. Ground 7 is not made out.
Ground 8 alleges that the Tribunal erred in law in rejecting the claim for compensation in respect of work absences for court attendances. The Tribunal made a finding of fact, which was open on the material before it, that the appellant had not lost any wages as a result of attending the Magistrates’ Court. It was also open to the Tribunal to conclude that the appellant’s claim in this regard was originally based on lost wages and was then changed to a claim based on lost leave entitlements. On any view, the Tribunal rejected the appellant’s claim that he had lost wages and/or leave entitlements, and accordingly rejected his claim. Ground 8 is not made out.
Ground 9 alleges that the Tribunal erred in law in holding ‘that the appellant was not pressured to settle and that the respondent honoured its promise’. Again, these are the appellant’s words.
It is convenient to deal first with the finding that the respondent ‘honoured its promise’. The Tribunal actually found that if the appellant was told that the respondent would deduct no amounts from the settlement figure, this agreement was honoured. That followed from the finding that the appellant received the full settlement amount of $1,425. These were findings of fact which were open to the Tribunal.
As to the impugned finding that the appellant was not pressured to settle his case, the appellant submitted that the Tribunal did not make a finding as to whether the legal advice on the basis of which he settled the case was right or wrong, and that if the advice was wrong, it followed that he settled the case as a result of improper pressure. I note that the Tribunal actually concluded that the advice given by the respondent was ‘proper and reasonable’. The appellant submitted in this Court that the legal advice he received - to the effect that the settlement sum (of $1,425.00) included residual registration and salvage (totalling $250) – was misleading. The appellant asserted that the advice was contradicted by Fanning, who said in front of his barrister and Bakhaazi that salvage and residual registration were not included in the net loss, but his barrister and Bakhaazi ‘repeated their advice’. As I understood the submission, the appellant was suggesting that his lawyers’ advice was that he would receive a total of $1,425 on settlement, whereas Fanning’s advice was that residual registration and salvage were not included hence $250 would be received on top of the settlement figure.
There are several difficulties with this submission. First, the submission assumes that there was a difference between the lawyers’ advice and Fanning’s advice. For the following reasons, I do not accept there was any difference. The Tribunal accepted that Fanning ‘considered the valuation of $1,425 to be fair and reasonable and that he put this in writing for the benefit of [the appellant] prior to settlement and during discussion of the offer. He also recorded in that signed note that the amount did not include residual registration or salvage.’[17] Further, in discussion before the Tribunal, the Vice-President told the appellant ‘We understand the argument. We also understand that you are entitled to get your residual registration refund over and above the settlement figure’. This indicated that the Tribunal accepted that the appellant was entitled to receive an amount for residual registration and salvage in addition to the $1,425 settlement sum. But it does not follow that the lawyers’ advice denied the appellant the right to recover an amount for residual registration and salvage. Indeed, the appellant did not suggest in the Tribunal or this Court that the terms of settlement precluded him from recovering an amount for residual registration and salvage. It follows that the lawyers’ advice did not propose a less generous basis for settlement than that stated by Fanning. It follows that the lawyers’ advice was not misleading, and the finding that there was no improper pressure to settle was plainly open. Ground 9 is not made out.
[17]Emphasis added.
Grounds 10, 11 and 12 allege, in essence, that the Tribunal erred in law in ignoring that Aloe’s evidence before the Full Tribunal was, as the appellant described it, ‘perjury’. This matter arose in the context of the observation in this Court’s reasons for judgment[18] that more than 16 months after the first hearing before the Full Tribunal, Aloe had conceded that evidence he had given before the Full Tribunal (to the effect that the appellant owed the respondent $650 and had not paid the amount) was false – mistakenly, rather than deliberately, false – but false nonetheless. As this Court held, the Full Tribunal’s acceptance of Aloe’s evidence as to the debt of $650 was the foundation of the Full Tribunal’s dismissal of the appellant’s claim, and in light of Aloe’s subsequent concession, the Full Tribunal’s decision could not stand. The Court also said, however, that ‘Nothing in what we have said should be taken as implying, or assuming, that the Tribunal was in any way misled, either by counsel for the respondent or by Mr Aloe when he gave his evidence’.[19] When the matter went back to the Tribunal, it was no part of the respondent’s case that the appellant owed $650 to the respondent. In effect, the case had moved on. The appellant cross-examined Aloe extensively as to that amount, and put to him that his earlier evidence about it was perjury. Aloe admitted that the earlier evidence was incorrect, offered an explanation as to how the error occurred, and denied the allegation of perjury. It is apparent from the transcript that the Tribunal gave the appellant considerable latitude in cross-examining Aloe on the alleged perjury, and it was only after the topic had been exhausted, and after repeated requests for the appellant to move on with his case that the Tribunal limited the appellant’s further cross-examination of Aloe on that matter. The Tribunal was well entitled to do so in the circumstances. It is to be noted that in his oral submissions in this Court, the appellant contended that the Tribunal had accepted that Aloe’s credit was destroyed and the Tribunal had thus advised the appellant that there was no need to address the point further. However, the transcript reveals that the reference to Aloe’s credit being destroyed was merely a supposition, advanced by the Tribunal for the purpose of telling the appellant that even if Aloe’s credit was destroyed, the allegations of perjury still did not advance his case as to compensation, as he needed to establish that he had actually suffered pecuniary loss.
[18]He v Aloe & Co Pty Ltd [2006] VSCA 235, [93].
[19]Ibid [95].
There are further alleged perjuries in the particulars to ground 11, but there is no substance to any of them. The Tribunal made a finding that Aloe was a credible witness, and the finding was plainly open. Grounds 10, 11 and 12 are not made out.
Ground 13 is premised on the allegation that the Tribunal ignored the appellant’s complaints as to what he called the respondent’s ‘unsatisfactory conducts and misconducts’. I do not accept the premise. The Tribunal dealt with the appellant’s allegations, and found that Bakhaazi (though not Aloe) behaved dishonestly, but that the dishonesty did not cause the appellant any loss, because he received the full settlement sum as agreed. Unlike the decision of the Full Tribunal which was set aside, the Tribunal on this occasion considered the appellant’s allegations as to what he described as misconduct and made findings in relation thereto which were open on the evidence.
Moreover, it is to be noted that in order for the appellant to succeed in his claim under s 122(1)(b) of the Act, the Tribunal was not required to make a finding that the respondent had engaged in behaviour which could be described as ‘misconduct’ or ‘unsatisfactory conduct’. As the Court pointed out last time, the appellant’s claim was a ‘dispute’ rather than a conduct complaint. To adopt the statutory language, the claim was simply that the appellant had suffered pecuniary losses ‘as a result of an act or omission by a legal practitioner or firm in the provision of legal services’. As mentioned, the appellant described the relevant acts and/or omissions as misconduct, and sought findings to that effect. And as this Court observed in 2006, the Tribunal was required to investigate the matters complained of by the appellant, in the sense that it needed to make findings as to what occurred. But that investigation of the allegations was not an investigation of misconduct in the abstract, but rather for the narrower purpose of determining whether the appellant suffered any pecuniary loss as a result of the alleged acts or omissions. Ground 13, along with many of the other grounds and his oral and written submissions, reflects the appellant’s fundamental misapprehension as to the nature of the hearing as to misconduct required by the Tribunal. In short, he was (and still is) determined to see the respondent punished for what he regards to be perjury, false affidavits, trust account irregularities and other breaches of the Act. Indeed, the form he originally submitted stated that he wished to have the practitioner disciplined, but that remedy was relevant to a conduct complaint rather than a dispute. It was clear from the letter of Victorian Lawyers RPA Ltd that the conduct complaint was at an end, and that it was the dispute that he was entitled to refer to the Legal Profession Tribunal. As I have explained, and as Maxwell P pointed out to the appellant early in the hearing, the dispute was a claim for pecuniary loss, caused by relevant acts or omissions, whether they be characterised as misconduct or not. Ground 13 is not made out.
Ground 14 is difficult to understand and appears to be premised on a distorted version of the Tribunal’s findings. In oral argument, the appellant indicated that the ground sought to assert his right to complain about misconduct and the Tribunal’s duty to investigate it. For the reasons given in relation to ground 13, ground 14 is not made out.
Ground 15 concerns the costs orders, to which I refer below.
Grounds 16 to 22 inclusive were grouped under the heading ‘Denials of Natural Justice’.
Ground 16 alleged that the Tribunal denied the appellant natural justice by ignoring his complaints about misconduct ‘as if, they were not the prime or essential complaints, or Mr Aloe should not be disciplined accordance with law at all despite the Full Tribunal found the respondent behaved dishonestly’. For the reasons stated in relation to ground 13, ground 16 is not made out.
Ground 17 alleged that the Tribunal denied the appellant natural justice by finding that Aloe was a witness of truth even though the Tribunal did not express that it accepted all of his evidence. There is no substance in this ground. The Tribunal was entitled to make the findings as to credibility that it did. And even if the Tribunal did not accept all of Aloe’s evidence, it was nevertheless entitled to prefer his evidence to that of the appellant. Ground 17 is not made out.
Grounds 18 and 19 concerned the Tribunal’s decision to limit the appellant’s cross-examination of Aloe as to the alleged perjury, and the imposition of a general time limit on the appellant’s cross-examination of Aloe. In my view, having read the relevant parts of the transcript of the proceeding before the Tribunal, the Tribunal went out of its way to afford the parties the opportunity to put their respective cases and cross-examine on relevant matters. It was only in light of the appellant’s repeated failure to heed the Tribunal’s calls to focus on relevant matters that the time limit was imposed. Although the Tribunal is bound by the rules of natural justice,[20] and must act fairly and according to the substantial merits of the case in all proceedings,[21] subject to the Victorian Civil and Administrative Tribunal Act 1998 (Vic) it may regulate its own procedure.[22] In my view, there was nothing unfair about the time limit imposed in the present case, as it still permitted the parties to put their cases fully. Grounds 18 and 19 are not made out.
[20]Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 98(1)(a).
[21]Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 97.
[22]Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 98(3).
Ground 20 complains that the Tribunal erred in accepting written statements by the appellant’s former barrister and Fanning when they were not required to attend for cross-examination. For the reasons given in relation to ground 2, ground 20 is not made out.
Ground 21 is premised on the claim that the Tribunal made factual errors, particulars of which run to nearly two pages. The only error made out is the Tribunal’s statement that the respondent provided a written submission on costs. As counsel in this Court stated, no written submission on costs was provided by the respondent, the application for indemnity costs being made orally. This error was trifling and plainly did not disadvantage the appellant or affect the Tribunal’s decision. It follows that no error of law is disclosed. Ground 21 is not made out.
Ground 22 alleges a denial of procedural fairness in relation to the order for indemnity costs, particularly in terms of the delay in provision of the orders to the appellant and the fact that initially the orders were signed by two members of the Tribunal who did not sit on the case. I accept that there was an administrative oversight in the Tribunal. As the Tribunal stated in its written reasons on costs, there was delay in providing the costs orders to the appellant consequent upon the orders being forwarded to an incorrect member for signature. The Vice-President had signed the orders prior to departure on sabbatical leave, and the orders had to be re-signed when the Vice-President returned, causing delay. The ground of appeal alleges that the two members who sat with the Vice-President had refused to sign the costs orders in the absence of an indemnity certificate being provided to the appellant. There is no basis for the allegation. All that can be said is that the costs order was originally signed by the wrong members, but the error was corrected by the reissuing of the order signed by the correct members, and it is plain that the appellant suffered no prejudice as a result. Finally, I reject the appellant’s submission that the Tribunal pre-judged the position on costs and thus denied him the opportunity to make submissions, or that he refrained from making submissions on costs out of fear that he would be punished for doing so. The fact is that the Tribunal afforded both parties ample opportunity to make submissions on costs. Ground 22 is not made out.
I turn now to ground 15, which alleges that the Tribunal erred in ordering indemnity costs against the respondent. The first thing to note is that both parties were afforded the opportunity to address the Tribunal on costs. The respondent sought indemnity costs, relying generally on the way the appellant had conducted the proceeding, and the appellant said very little in opposition. In this Court, the appellant submitted that the order for indemnity costs effectively punished him for exercising the right of rehearing given by this Court’s earlier judgment. He conceded that, appearing in person, he was not efficient at using time, but submitted that the Tribunal could have but did not take the opportunity to question the respondent directly and thus, I would infer, speed up the hearing. He also submitted that the usual position under the Victorian Civil and Administrative Tribunal Act 1998 (Vic) is that the parties bear their own costs.
Subject to s 109 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the question of costs was a matter in the Tribunal’s discretion. Unless it be shown that the discretion miscarried in the sense that the Tribunal acted on some wrong basis or principle, took into account irrelevant matters, failed to take into account relevant matters, or otherwise made a decision that no reasonable Tribunal could have made in the circumstances, this Court will not second guess the decision actually made.
In my view, the Tribunal did not err in the exercise of its discretion on costs. The Tribunal referred to s 109 and made findings that the appellant had vexatiously conducted the proceeding and prolonged unnecessarily what was, at best, an exceedingly weak case, and in the face of open offers that would have effectively given him all he had originally claimed. These findings were all open. I note further that although the appellant was a litigant in person, and ran the case following his successful appeal to this Court, he had the guidance of that decision which stated clearly that his case was not a conduct complaint as such, but rather a case about pecuniary loss, and that he had to establish that the relevant acts he complained of had caused him pecuniary loss. A stand out feature of the case before the Tribunal was the appellant’s consistent failure to relate any of his allegations as to misconduct by the respondent to the question of pecuniary loss. In effect, he chose to use the proceeding before the Tribunal as a generalised inquiry into misconduct rather than seeking to prove how particular acts and omissions had caused him pecuniary loss. The Tribunal alerted the appellant to that on more than one occasion, but unfortunately to no avail. In all the circumstances, the order for indemnity costs was open and appropriate. Ground 15 is not made out.
I would therefore dismiss the appeal with costs.
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