Janover v Muto (No.3)

[2016] VCC 717

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for publication

AT MELBOURNE

COMMERCIAL DIVISION
GENERAL CASES LIST

Case No. CI-13-06038

LEWIS ALLEN JANOVER	Plaintiff
v.
MILVAN MUTO	Defendant
and
GREATER SHEPPARTON CITY COUNCIL	Third Party

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JUDGE:	His Honour Judge Anderson
WHERE HELD:	Melbourne
DATE OF HEARING:	27 May 2016
DATE OF JUDGMENT:	27 May 2016 (revised 31 May 2016)
CASE MAY BE CITED AS:	Janover v. Muto (No.3)
MEDIUM NEUTRAL CITATION:	[2016] VCC 717

REASONS FOR JUDGMENT

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Catchwords:             Practice and procedure – Plaintiff’s claim discontinued – Third party proceeding amended – Claim by defendant that third party agreed to “fund legal representation to argue the third party proceeding” – Trial fixed to determine issue as to whether the “third party proceeding” included the appeal process.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Dunne	John Dunne & Associates
For the Defendant	Mr M. Muto (in person)
For the Third Party	Mr D. Clough of Counsel	Dawes & Vary Riordan

HIS HONOUR:

1These reasons record the background to the orders I made on 27 May 2016. The last time this proceeding was before the Court was on 11 December 2015. I delivered written reasons for the orders I made that day, on 15 December 2015.

2Since that time there have been a number of relevant events:

a.there has been extensive correspondence between the parties and the Court, particularly from Mr Muto, and on occasions orders made by the Court “on the papers”. A bundle of this correspondence and the orders is attached to these reasons;

b.on 15 April 2016, Senior Member Byard at VCAT in proceeding B82/2012, Dobson v. Muto (No.2), made orders effectively making no order for costs in that proceeding, pursuant to clause 46F of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (“the VCAT Act”);

c.Mr Muto has sought leave in the Supreme Court to appeal from the VCAT order. A directions hearing is fixed for 30 May 2016 before Associate Justice Mukhtar;

d.Mr Muto has taken no steps to make an application for leave to appeal from the decision I made in this proceeding on 18 November 2015. Mr Muto conferred with a barrister, Dr Stern as a result of my request to the Victorian Bar pro-bono scheme on 11 December 2015. Eventually counsel indicated to Mr Muto that he could no longer assist and the Bar has declined to appoint a replacement counsel;

e.Mr Muto was apparently told by Mr Draper, the Supreme Court’s unrepresented litigants coordinator that he could seek assistance through Mr Draper to the Victorian Bar, “once” only. It appears that Mr Muto has chosen to seek that further assistance in relation to the appeal from VCAT rather than to assist him to make an application for leave to appeal from my decision on 18 November 2015;

f.Judicial Register Goulay in the Costs Court on 19 April 2016, taxed the bills of costs of Mr Janover to Mr Muto which were the subject of this proceeding. Mr Muto was ordered to pay a total of $107,771.65 to Mr Janover.

3Mr Muto informed the Court on 27 May 2016 that his concern had not been to challenge the entitlement of Mr Janover to his costs but to ensure that he was indemnified by the Greater Shepparton City Council (“the Council”) in relation to those costs.

4This dispute has been the focus of the third party claim by Mr Muto in the present proceeding, specifically whether section 76 of the Local Government Act 1989 and/or clause 46F of Schedule 1 to the VCAT Act required the Council to indemnify Mr Muto for the costs of earlier VCAT and associated proceedings.

5The first issue in the third party claim (section 76) was resolved by me on 18 November 2015. The second issue (clause 46F) was sought to be resolved by the Council seeking the order made by Senior Member Byard at VCAT on 15 April 2016.

6On 21 July 2014, the Council’s solicitors had written to Mr Muto offering on behalf of their client “to fund legal representation for you to argue the third party proceeding”, subject to certain conditions set out in the letter. As a consequence, Mr Muto was represented at the hearing before me, determined on 18 November 2015.

7When Mr Muto was considering appealing from my decision he asserted that the Council should fund his costs of the appeal pursuant to the terms of its solicitors’ letter dated 21 July 2014, submitting that the “third party proceeding” must include any appeal from the decision at first instance.

8I attempted to avoid the need for a further proceeding and trial to determine that issue by seeking assistance for Mr Muto from the Victorian Bar’s pro-bono scheme on 11 December 2015. That attempt was ultimately unsuccessful.

9Accordingly, I made orders on 27 May 2016, permitting Mr Muto to raise, by amendment to his statement of claim in the third party proceeding, the issue of whether the 21 July 2014 letter covers legal representation for appeals from first instance decisions in the third party proceeding. I considered that this issue was more appropriately raised in the present third party proceeding, rather that requiring Mr Muto to issue a fresh proceeding.

10Mr Muto indicated that he wished the Council to provide him with legal representation for the hearing on 29 August 2016. I informed Mr Muto that he will need to arrange legal representation for the hearing or to appear himself. It appeared to me from the matters raised by Mr Muto on 11 December 2015 (which I summarised in my reasons dated 15 December 2015) and the further submissions he made on 27 May 2016, that Mr Muto will be able to adequately represent himself at the trial on 29 August 2016.

11As a result of the order of Judicial Registrar Goulay on 19 April 2016, the plaintiff’s solicitor Mr Dunne applied for leave to discontinue the plaintiff’s claim, with no costs order. After discussion, there was no opposition to that proposal and appropriate orders were made.

12As a result of the order of Senior Member Byard on 15 April 2016, Mr Clough of counsel on behalf of the Council, submitted that it would be appropriate to strike out paragraph 20 of Mr Muto’s amended statement of claim in the third party proceeding (the claim for indemnity based on clause 46F of Schedule 1 to the VCAT Act). Again, after discussion, there was no opposition to that proposal and an appropriate order was made.

13The present position in relation to Mr Muto’s third party proceeding is as follows:

a.I determined the question of Mr Muto’s entitlement to an indemnity in respect of the costs of the earlier proceedings pursuant to section 76 of the Local Government Act 1989 by my decision on 18 November 2015. Mr Muto has made no application for leave to appeal from that decision. He is aware of the time limits for filing the necessary application and other documents. He is aware that there is no stay operating in respect of the orders I made on 18 November 2015;

b.Senior Member Byard determined the question of Mr Muto’s entitlement to an order for his costs of the VCAT proceeding pursuant to clause 46F of Schedule 1 of the VCAT Act, by his decision on 15 April 2016. An appeal from the decision to make no order as to those costs has apparently been initiated by Mr Muto and Mukhtar AJ will give directions on Monday 30 May 2016;

c.the issue of the extent of the “funding” offered by the Council to Mr Muto for the third party proceeding will be determined at a hearing on 29 August 2016.

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Certificate

I certify that these 3 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 27 May 2016 and revised on 31 May 2016.

Dated:       31 May 2016

Mi-Lin Chen Yi Mei    

Associate to His Honour Judge Anderson