Joel Lorensz Beling v Fiona Ruth McLeay as Victorian Legal Services Commissioner [No 2]

[2021] VSCA 271

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0076

JOEL LORENSZ BELING	Applicant
v
FIONA RUTH McLEAY AS VICTORIAN LEGAL SERVICES COMMISSIONER [No 2]	Respondent

S EAPCI 2021 0077

JOEL LORENSZ BELING	Applicant
v
VICTORIAN LEGAL SERVICES COMMISSIONER [No 2]	Respondent

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JUDGES:	KAYE and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	28 September 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 271
JUDGMENT APPEALED FROM:	[2020] VCC 1010 (Judge Cosgrave); [2020] VCC 1071 (Judge Cosgrave); [2021] VCC 764 (Judge A Ryan); [2021] VSC 390 (Ginnane J); [2021] VCC 1021 (Judge A Ryan); [2021] VSC 466 (Ginnane J)

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COSTS – Applications for leave to appeal refused – Application for extension of time to file application for leave to appeal refused – Application for stay refused – Whether respondent should be awarded indemnity costs – Applicant admitted to practise law – Self-represented – Applications entirely without merit and included unsupported allegations of fraud, dishonesty and falsification of documents – Respondent awarded indemnity costs in both appeals.

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REPRESENTATION:	Counsel	Solicitors
For the Applicant	In person
For the Respondent	Mr M G McNamara	White Cleland Pty Ltd

KAYE JA
NIALL JA:

1. This decision concerns the issue of the appropriate costs orders which should be made in respect of two related applications for leave to appeal in respect of which we delivered judgments on 13 September last. 

1. In appeal S EAPCI 2021 0076 (‘the first appeal’) we delivered judgments, and made orders (inter alia):

·refusing the application by the applicant for extension of time to file an application for leave to appeal against the judgments and orders of Judge Cosgrave of the County Court dated 14 July 2020 and 23 July 2020; 

·refusing the applicant leave to appeal against the judgments and orders of Judge A Ryan dated 23 June 2021 and 30 July 2021;  and

·dismissing the application by the applicant for a stay of the orders of Judge Cosgrave and Judge Ryan.[1]

[1]Beling v Victorian Legal Services Commissioner [2021] VSCA 256.

1. In appeal S EAPCI 2021 0077 (‘the second appeal’), we made orders (inter alia) refusing the applicant leave to appeal against the judgment and orders of Ginnane J dated 1 July 2021 and 6 August 2021 in a proceeding that was related to the County Court proceedings in which Judge Cosgrave and Judge Ryan respectively made orders.[2]

   [2]Beling v Victorian Legal Services Commissioner [2021] VSCA 257.

1. In each of the two appeals, we made directions that, in default of agreement, the parties file submissions on the issue of costs.  The parties did not reach any agreement on costs.  They have now each filed submissions on that question.  In support of the submissions filed by him, the applicant also filed a short affidavit.  He exhibited to the affidavit relevant correspondence between himself and the solicitor for the respondent concerning the question of costs, but also sought to exhibit a document comprising some 500 pages, which is entirely irrelevant to the issue of costs.  We have received and read the relevant correspondence section of the exhibit, but have declined to accept the balance of the exhibit on the ground, as we stated, that it is entirely irrelevant. 

1. In each of the two appeals, the respondent has applied for an order that the applicant pay her costs on an indemnity basis.  In short, the respondent seeks such an order for three reasons:

(a)               the applications were commenced in circumstances in which the applicant, properly advised, should have known that they had no prospect of success;

(b)              the applicant made allegations of fraud in each of the two appeals which were irrelevant, and for which there were no reasonable grounds;  and

(c)               the applicant made other allegations and advanced submissions that were without merit and which were clearly bound to fail.

1. In response, the applicant has submitted that in the circumstances the respondent is disentitled to an order for costs and that the applicant should be entitled to an order for payment of his disbursements in the two appeals.  In support of that submission, the applicant has contended that the respondent engaged in ‘disentitling conduct’.  It would seem that the principal element of such conduct constituted an (alleged) refusal by the respondent to negotiate the issue of costs in good faith.  In addition, the applicant has noted that he was not ‘properly advised’ in respect of the appeals, because he could not afford legal representation.  Further, he has submitted that the orders made by this Court, on the extension of time application, failed to take into account his ‘dire financial and personal circumstances’, the respondent’s ‘stonewalling and obstructionist conduct’, and the history of the proceedings and ‘indications of alleged judicial bias’. 

1. It is convenient first to deal with the matters raised by the applicant.  Each of them are clearly without substance.  First, although the applicant may not have had legal advice, however, he was admitted to legal practice in 2002 and practised as a legal practitioner for several years. 

1. Secondly, having reviewed the correspondence between the parties, we consider the respondent engaged sufficiently and quite appropriately with the applicant on the question of costs.  In a letter dated 14 September 2021, the respondent’s solicitors proposed that the applicant pay the respondent’s costs on an indemnity basis.  The letter set out, in six points, the reasons why such a costs order was sought.  The applicant then responded by email in which he asked sixteen questions of the respondent, each of which were entirely irrelevant to the issue.  Understandably, the respondent’s solicitor responded by email refusing to answer those questions.  The applicant then sent a further email proposing a Zoom or WebEx conference to discuss those matters.  In response, the solicitor for the respondent sent an email to the applicant stating that, in his opinion, the applicant was not engaging in a manner contemplated by the Court’s directions, and that the questions and Zoom conference proposed by him did not relate to the issue of costs.  Further emails passed between the parties in which the applicant accused the solicitor for the respondent of refusing to engage in a bona fide discussion.  It concluded with the solicitor for the respondent sending an email to the applicant stating that the issue of costs would proceed on the basis that the parties had made no agreement. 

1. As the solicitor for the respondent made plain in his correspondence, the sixteen questions posed by the applicant were irrelevant to the issue of the costs of the two appeal matters.  In his initial email, the solicitor for the respondent set out, in clear terms, the basis upon which the respondent sought indemnity costs.  In our view, it is clear that it was the applicant, not the respondent, who failed to engage properly in negotiations concerning that matter.  We therefore reject the proposition advanced by the applicant that there was any disentitling conduct by the respondent.

1. In his submissions, the applicant has sought, in effect, to reagitate a number of the issues argued on the substantive applications for leave, on which he wholly failed.  In doing so, he has repeated a number of the allegations made by him which, in our reasons, we found were without any substance.

1. Accordingly, the applicant has failed to advance any valid reason why he should not pay the costs of the respondent of each of the two appeal matters. 

1. Further, we are persuaded that, in this case, the applicant should pay those costs on an indemnity basis. 

1. While the applicant was self-represented, nevertheless, he was admitted to practise as a legal practitioner, and he has practised as a legal practitioner for a number of years.  It is a matter of particular concern that, as we pointed out in our substantive judgments, the applicant made a number of very serious allegations, which were wholly unsupported and were without any evidentiary or other foundation, including allegations of fraud, dishonesty and falsification of documents that had been lodged with VCAT.  In our reasons in the first appeal, we noted that a significant number of allegations and propositions, advanced by the applicant, were wholly lacking in any evidentiary support, and we concluded that a number of the bases, upon which the applicant had sought leave to appeal, were quite hopeless.[3]  Further, the application for an extension of time and the application for the stay were entirely without merit. 

   [3]See, eg, Beling v Victorian Legal Services Commissioner [2021] VSCA 256, [63], [65], [71], [86], [91], [93], [100], [105], [111], [125], [131], [140], [144]–[148], [152]–[154], [156]–[159]. See also Beling v Victorian Legal Services Commissioner [2021] VSCA 257, [20]–[21], [32], [39], [43].

1. As a legal practitioner, the applicant ought to have known, and been acutely aware of, his obligation not to advance propositions in court which allege dishonesty, fraud or the like without an appropriate and sound factual foundation, and of his obligation not to advance submissions to the Court which were so devoid of merit. 

1. In those circumstances, it is appropriate that the Court should order that the applicant pay the respondent’s costs in each matter on an indemnity basis. 

1. Accordingly, in the first appeal, it will be ordered that the applicant pay the respondent’s costs of the application for an extension of time to file an application for leave to appeal against the judgments and orders of Judge Cosgrave, of the application for leave to appeal against the judgment and orders of Judge Ryan, and of the application for a stay of the orders of Judge Cosgrave and Judge Ryan, on an indemnity basis. 

1. In the second appeal, it will be ordered that the applicant pay the respondent’s costs of the application for leave to appeal against the judgment and orders of Ginnane J on an indemnity basis.

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