Kaczmarski v Victorian Legal Services Board
[2017] VSC 690
•16 November 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 01851
| EUGENE KACZMARSKI | Appellant |
| - and - | |
| VICTORIAN LEGAL SERVICES BOARD | First Respondent |
| MATTHEW CRITCHLEY | Second Respondent |
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 August 2017 |
DATE OF RULING: | 16 November 2017 |
CASE MAY BE CITED AS: | Kaczmarski v Victorian Legal Services Board & Anor |
MEDIUM NEUTRAL CITATION: | [2017] VSC 690 |
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JUDICIAL REVIEW AND APPEAL – Application to determine whether appeal brought within time – Whether matters alleged and orders sought are within jurisdiction of the Court – Appeal of decision of Victorian Legal Services Board to appoint external interveners for a law practice – Self-represented litigant – Legal Profession Uniform Law 2014, s 358.
PRACTICE AND PROCEDURE – Appeal of decision of Victorian Legal Services Board to appoint external interveners for a law practice – Whether appeal is ‘lodged’ with the Registry of the Supreme Court when it is sent to the Registry by email – Distinction between ‘lodged’ and ‘filed’ – Angus Fire Armour v Customs (1988) 83 ALR 449 – Hong Ye v Minister for Immigration and Multicultural Affairs (1998) 153 ALR 327 – Linfox Transport (Aust) Pty Ltd v Toohey Legal [2004] VSCA 122 – LegalProfession Uniform Law 2014, s 358 – Electronic Transactions (Victoria) Act 2000.
STATUTORY INTERPRETATION – Applicable Principles – Interpretation of Legislation Act 1984, s 35(a) – Colonial Range Pty Ltd v CES-Queen (Vic) Pty Ltd [2016] VSCA 328.
WORDS AND PHRASES – ‘Lodged’– ‘Filed’.
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APPEARANCES: | Counsel | Solicitors |
| The Appellant appeared in person | ||
| For the Respondents | Ms L Hannon | Colin Biggers & Paisley |
HER HONOUR:
Introduction
Mr Eugene Kaczmarski seeks to appeal the appointment of external managers to a law firm, Taylor Preston. He is a shareholder of the firm. His son, Mr Jeremy Williams, was its director. The external managers were appointed by the Victorian Legal Services Board (‘the VLSB’). Taylor Preston is now in liquidation.
The issues for determination in this ruling are as follows:
(a) What is the applicable time frame for Mr Kaczmarski to lodge his appeal?
(b) What is the meaning of ‘lodged’ in the context of s 358(3) of the Legal Profession Uniform Law 2014 (‘the Uniform Law’).[1]
(c) Did Mr Kaczmarski lodge his appeal on time?
(d) If so, is the relief Mr Kaczmarski seeks available to him pursuant to s 358(4) of the Uniform Law?
[1]The Legal Profession Uniform Law 2014 forms Schedule 1 to the Legal Profession Uniform Law Application Act 2014.
Background
Mr Kaczmarski is a former company director and secretary of Taylor Preston Lawyers Pty Ltd (In Liquidation) (‘Taylor Preston’).[2] He is the beneficial owner of the two ordinary shares issued by Taylor Preston and the father of the former director of Taylor Preston, Mr Jeremy Williams.[3]
[2]Exhibit ‘TTB-3’ to the affidavit of Thanh Thi Mai Bui sworn on 13 June 2017 ‘the first Bui affidavit’. Mr Kaczmarski ceased acting in the roles on 1 March 2016.
[3]Ibid.
On 3 December 2015, the VLSB, appointed Mr Shaun Marcus as a Manager to Taylor Preston. This appointment was followed by three respective appointments of Mr Matthew Critchley as manager to Taylor Preston on 5 July 2016, 28 October 2016 and 28 April 2017.[4]
[4]The first Bui affidavit [7] and Notice of Appeal filed 18 May 2017.
By way of a Notice of Appeal filed on 18 May 2017, Mr Kaczmarski is seeking to appeal all four appointments. He seeks relief including punitive damages for the actions of Mr Marcus and Mr Critchley during the course of their appointments, orders similar in nature to discovery of documents and interrogatories and orders seeking relief to the alleged criminal conduct of Mr Critchley.
On 14 June 2017, Ginnane J ordered the proceeding be listed before an Associate Judge:
(a) to determine whether the appeal was brought within time;
(b) if the Associate Justice considers it appropriate, to determine whether the matters alleged in the notice of appeal and the orders claimed in it are within the jurisdiction of the Court to determine or grant in an appeal under s 358(1) of the Legal Profession Uniform Law 2014; and
(c) to make such orders as the Associate Justice considers appropriate as a result of the determination of the matters described in paragraph 1(a) and (b), including, if necessary, relisting the proceeding before a Judge of the Court for further hearing.
Summary
The appeal is brought within time in respect of Mr Critchley’s third appointment on 28 April 2017. The appeal is beyond time in respect of the prior appointments of Mr Critchley and also the appointment of Mr Marcus.
The relief sought in paragraphs 5, 6, 8, 9 and 11 of the notice of appeal is beyond the jurisdiction of the Court to determine or grant in this proceeding, being an appeal under s 358(1) of the Uniform Law, and accordingly those paragraphs will be struck out.
The relief sought in the appeal be confined to Mr Critchley’s third appointment.
Turning now to the first issue.
What is the applicable time frame for Mr Kaczmarski to lodge his appeal?
It is common ground between the parties that the applicable time frame for lodgement of the appeal is seven days after service of the notice of appointment.
Section 358 of the Uniform Law, which is contained in Schedule 1 to the Legal Profession Uniform Law Application Act 2014 is applicable:
358 Right of appeal or review about appointment of external intervener
(1)An aggrieved person may, in accordance with applicable jurisdictional legislation, appeal to the designated tribunal against, or seek a review by that tribunal of, the appointment in this jurisdiction of an external intervener for a law practice.
(2)An ‘aggrieved person’ is—
(a)the law practice; or
(b)an associate of the law practice; or
(c)any person authorised to operate a trust account of the law practice; or
(d)a client of the law practice whose interests may be adversely affected by the appointment; or
(e)any other person whose interests may be adversely affected by the appointment.
(3)The appeal or application for review is to be lodged within 7 days after notice of the appointment is served on—
(a)the person who proposes to appeal or seek review; or
(b)the law practice, if a notice is not required to be served on the person who proposes to appeal or seek review.
(4)The designated tribunal may by order do any one or more of the following—
(a) confirm the appointment;
(b) set aside the appointment;
(c) impose or vary any conditions of the appointment;
(d) make any other orders it thinks fit.
(5)The appointment of an external intervener is not stayed by the making of an appeal or an application for review, and the external intervener may accordingly continue to exercise his or her powers and other functions as external intervener during the currency of the appeal or review except to the extent (if any) that the designated tribunal otherwise directs.
(6)To avoid doubt, this section has effect subject to section 325.
…
Section 325 of the Uniform Law relates to the operation of an external intervener in another participating jurisdiction and is not relevant to facts of this application.
Mr Kaczmarski relies on s 358(2)(e) and says that he is an ‘aggrieved person’ as his interests may be adversely affected by the appointment. Whether or not Mr Kaczmarski is an ‘aggrieved person’ is not the subject of this ruling.
What is the meaning of ‘lodged’ in the context of s 358(3) of the Uniform Law?
Mr Kaczmarski, who was self-represented, but assisted by his son Mr Williams (a former legal practitioner) did not make any particular submissions about the meaning of the term ‘lodged’.
The central submission made by the respondents on the meaning of the term ‘lodged’ in s 358(3) of the Uniform Law is that it should be taken to mean the appeal should be ‘commenced’ or ‘filed’, rather than the appeal papers simply being delivered to the registry but not yet accepted for filing.[5]
[5]Transcript of proceedings, Kaczmarski v Victorian Legal Services Board and Anor (Supreme Court of Victoria, S CI 2017 01851, Ierodiaconou AsJ, 23 August 2017), 46, (‘Transcript of Proceedings’).
The respondents submit that the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (‘the 2008 Rules’) do not make reference to an appeal being ‘lodged’ but rather ‘filed’ and an appeal is deemed to be filed when the Prothonotary has sealed and dated the originating process.[6]
[6]Outline of Submissions of First and Second Respondents (Referral to Associate Judge for determination of preliminary issues, pursuant to order of Ginnane J made 14 June 2017) dated 17 August 2017 (‘the Respondents’ Outline of Submissions’) [30]; Transcript of Proceedings, 46.
In Angus Fire Armour v Customs (‘Angus’),[7] the majority referred to the ordinary meaning of the word ‘lodged’ and held it meant the act of leaving documents with the court without the need for the documents to be stamped, accepted by the registry and placed on the court file. However Jenkinson J, dissenting, held the documents must be accepted for filing before the document is lodged. To use the words of the legislation, the documents must be received rather than just delivered; further steps are required for the documents to be deemed lodged.[8] The respondents rely upon this dissenting judgment.
[7](1988) 83 ALR 449.
[8]Ibid 463 (Jenkinson J).
The term ‘lodged’ is not defined in the Uniform Law, the 2008 Rules, the Supreme Court Act 1986 or the Interpretation of Legislation Act 1984 (‘the Interpretation Act’).
The Supreme Court (General Civil Procedure) Rules 2015 (‘2015 Rules’) uses both the terms ‘lodge’ and ‘filing’. For instance, r 64.01 indicates that for the purpose of that Order a document is filed only where it has been ‘lodged with the Registrar and accepted by the Registrar for filing; and sealed with the seal of the Court.’
Principles of statutory interpretation require close consideration of the text, context and purpose of statutory provisions. Section 35(a) of the Interpretation Act provides that:
a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object; …
The Court of Appeal in Colonial Range Pty Ltd v CES-Queen (Vic) Pty Ltd[9] outlined the principles of statutory interpretation as follows:
[9][2016] VSCA 328.
47The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.
48To enable the relevant provision to be properly construed, it is therefore necessary to identify the legislative purpose of the Act as a whole and whether the relevant provision can be interpreted in a manner harmoniously with that purpose. This process requires consideration of:
(a) the text of the relevant provision itself; and
(b)the whole of the instrument, and the provisions with which the relevant provision interacts. The context extends to the existing state of the law, the history of the legislative scheme and the mischief which the statute sought to remedy, and ‘imports all legitimate means by which the legislative intent may be ascertained’.
49When identifying the legislative purpose of the Act consideration may be given to extrinsic material, but such extrinsic material should be looked at after ‘exhausting the application of the ordinary rules of statutory construction’ and it ‘cannot be relied on to displace the clear meaning of the text’.
50Where the ordinary meaning of the text is consistent with the legislative purpose, the court will apply that as the legal meaning
51If the text permits more than one possible construction, s 35(a) of the Interpretation of Legislation Act 1984 requires that a construction which would promote the purpose or object of an Act be preferred to one that would not.
52A tension arises when the court considers that the ordinary meaning of the text is inconsistent with the legislative purpose. As the plurality in Project Blue Sky Inc v Australian Broadcasting Authority explained:
the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning…
…
54Recent statements of the High Court have emphasised the primacy of the text in the resolution of any perceived tension between the text and the legislative purpose of the Act. Such statements include the following:
(a)‘The words of the statute, not non-statutory words seeking to explain them, have paramount significance’.
(b)‘This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text itself ... The language which has actually been employed in the text of legislation is the surest guide to legislative intention’.
(c)‘A second and not unrelated danger that must be avoided in identifying a statute’s purpose is the making of some a priori assumption about its purpose. The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions’…[10]
[10]Colonial Range Pty Ltd v CES-Queen (Vic) Pty Ltd[2016] VSCA 328 [47]–[52] [54] citations omitted.
The legislative purpose of the Uniform Law is stated in s 3:
The objectives of this Law are to promote the administration of justice and an efficient and effective Australian legal profession, by—
(a)providing and promoting interjurisdictional consistency in the law applying to the Australian legal profession; and
(b)ensuring lawyers are competent and maintain high ethical and professional standards in the provision of legal services; and
(c)enhancing the protection of clients of law practices and the protection of the public generally; and
(d)empowering clients of law practices to make informed choices about the services they access and the costs involved; and
(e)promoting regulation of the legal profession that is efficient, effective, targeted and proportionate; and
(f)providing a co-regulatory framework within which an appropriate level of independence of the legal profession from the executive arm of government is maintained.
Section 323 of the Uniform Law provides specific objectives for Part 6 (which includes s 358):
The objectives of this Chapter are—
(a)to ensure that an appropriate range of options is available for intervention in the business and professional affairs of law practices for the purpose of protecting the interests of—
(i) the general public; and
(ii) clients; and
(iii)law practices and others, including the owners and employees of law practices, so far as their interests are not inconsistent with those of the general public and clients; and
(b)to ensure that there is an accountable and transparent process for the appointment of interveners and for the conduct of interventions.
The term ‘lodge’ is defined in the Shorter Oxford English Dictionary on Historical Principles and includes: ‘deposit in court or with an official a formal statement of (a complaint, objection, etc)’.[11]
[11]Shorter Oxford English Dictionary on Historical Principles (Oxford University Press, 6th ed, 2007).
Turning now to the relevant case law on the definition of ‘lodged’. As discussed above, the respondents rely on the dissenting judgment in Angus. In that case, the Full Court of the Federal Court considered the issue of whether a review application to the relevant tribunal had been ‘lodged’ within the prescribed time. The lodgement fee was not initially paid. By the time the documents were re-lodged, it was outside the prescribed lodgement time for the review application. Apart from the absence of the fee, the application met all requirements.
Sweeney J considered that the term ‘lodge’ was to be given its ordinary meaning, and noted that the Shorter Oxford Dictionary defined the concept as ‘to place, deposit,’ including the example ‘to deposit in court or with an official a formal statement of (an information, complaint, objection etc).’[12] Northrop J, agreeing , also adopted the Shorter Oxford Dictionary definition of ‘lodge.’ Northrop J held physical acceptance of a document is sufficient for the purpose of lodging. His Honour made the following observation:
Once an application has been lodged with the tribunal in the sense that it has been received by an officer of a registry, officers are required to determine whether the application is in the prescribed form and whether a fee is to be paid. If all is in order, internal procedures apply, for example, an identifying number is given to the application, and, under s 29(11) of the Act, the relevant officer is required to give notice in writing of the application to the person who made the decision. The procedures required for the determination of the application for review are thus set in motion. If the officer decides that the application is not in proper form or if the required fee has not been lodged, he is not required to set in motion the procedures just described.[13]
[12](1988) 83 ALR 449, 452.
[13]Ibid.
Jenkinson J’s dissenting judgment extends the concept of acceptance beyond that of mere physical acceptance to acceptance of the document and its contents in order for the document to be deemed ‘lodged’. That proposition is not supported by other authority.
In Hong Ye v Minister for Immigration and Multicultural Affairs (‘Hong Ye’),[14] the Full Court of the Federal Court held that an application to review will be ‘lodged’ with a registry of the court when the review application comes into the possession of a registry or the staff of a registry. In that case, it had been sent to the Registry by facsimile. It was held that the means by which possession is obtained does not matter.
[14](1998) 153 ALR 327.
The Full Court attributed the term ‘lodged’ with its natural, ordinary meaning and relied on the Oxford English Dictionary that outlines two meanings:
(a) Deposit in a specified place of custody or security.
(b)Deposit in court or with an official a formal statement of (a complaint, objection, etc); bring forward, allege, (an objection etc).
The Full Court agreed with the decision of the majority in Angus, provided that Northrop J intended that ‘acceptance’ is understood to mean that the registry had obtained possession of the document. The majority judgments in Angus support the proposition that lodging is the submission or deposit of a document and acceptance, in the sense of physical acceptance or acknowledgment of receipt.[15]
[15]See also: Hong Ye at 331; Ralph v Repatriation Commission (2015) 145 ALD 357 [58]; Gerblich v Adplan Pty Ltd (2012) 281 LSJS 175 [25]–[27].
In Hong Ye, the Full Court also considered Francis v City of Ringwood (‘Francis’).[16]The question in Francis was whether the act of posting a notice of appeal, as it had not been physically received within time, meant that the appeal had been ‘lodged.’ The Court held that a document is lodged when it comes into the hand of the registrar (or their staff) when it is received in the registry. Importantly, Burchett, Lehane and Finkelstein JJ specifically rejected Jenkinson J’s dissenting opinion and made the following observations:
Apart from the fact that this contention was not accepted by the majority in Angus Fire Armour we would in any event reject it for the following reasons. First, it does not conform to the ordinary meaning of the word ‘lodged’. Secondly, it ignores the distinction that has been made in the cases between ‘lodging’ a document which is an act of a party and ‘filing’ a document which is an act of the court. Thirdly, it assumes that a person delivering a document to a registry will be advised whether the document is accepted or not. Thus it has the potential to bring about a significant degree of uncertainty. Fourthly, for all practical purposes it will deny to an applicant the ability to post an application to review to a registry. If sent by post the applicant may not know for some time whether his or her application has been accepted in the sense explained by Jenkinson J. If the application is rejected because it is deficient in some respect the time within which an application must be lodged might have passed before an applicant could be aware of the fact that his or her application had not been accepted. Fifthly, for the same reasons it would deny an applicant the ability to lodge a document by facsimile transmission. Finally, it could result in the position that an application for review that is made in the manner specified by the rules and delivered to the registry within the time specified by s 478 but is wrongly rejected as being deficient (that is, not accepted by the registry staff) will not be regarded as having been lodged. A construction of the meaning of the word ‘lodged’ that would permit any of these results should be avoided.[17]
[16](1978) 54 LGRA 323.
[17]Hong Ye, 332.
I do not accept the respondents’ submission that the meaning of ‘lodged’ in Hong Ye should be distinguished on the basis that the Full Court of the Federal Court considered the definition in the context of the phrase ‘lodged with a Registry of the Federal Court’, and that s 358(3) of the Uniform Law does not refer to lodgement with the Court Registry. That is plainly what is anticipated by the section given that appeals pursuant to it lie with the Court.
In Linfox Transport (Aust) Pty Ltd v Toohey,[18] Batt JA in the Victorian Court of Appeal referred to the authorities above and held that:
The essence of the conception of lodgement for present purposes is the depositing in a court or government office or with some public officer or functionary.[19]
[18][2004] VSCA 122.
[19]Linfox Transport (Aust) Pty Ltd v Toohey [2004] VSCA 122 [5].
Most recently, the Australian Capital Territory Supreme Court in Kaney v Rushton has made the following observations and distinguished between the concept of ‘lodging’ and ‘filing’ a document:
Ordinarily, ‘filing’ means simply placing a document on the court file: Re Commercial Union Assurance Co (Ltd) (1899) 18 NZLR 585 at 588. There is a distinction between lodging a document at the court registry and filing the document: Angus Fire Armour (Australia) Pty Ltd v Collector of Customs (NSW) (1988) 19 FCR 477 at 487–9. Lodgement is the act of the party or other litigant; filing is the act of the staff of the Registry. It is clear from that decision that the steps between lodgement and filing are formal — whether the document is in the prescribed form, if any, whether any applicable fee has been paid and so on. It may also involve a check to see that the document is not one that should be rejected for any of the reasons set out in Div 6.3.3 of the Court Procedures Rules or otherwise. These matters, however, do not seem to me to imply that filing has any effect on the efficacy of the document or affects its effect.[20]
[20]Kaney v Rushton [2017] ACTSC 11 [51].
The dictionary definition of ‘lodged’, and the authorities above support the following proposition, which I shall apply. A document is ‘lodged’ if it is deposited with the Court Registry and physically accepted by it. It may be deposited and accepted either in person or electronically.[21]
[21]See also: Hong Ye at 331; Ralph v Repatriation Commission (2015) 145 ALD 357, [58]; Gerblich v Adplan Pty Ltd (2012) 281 LSJS 175, [25]–[27].
The time frame for lodgement of appeals is short: seven days. The Uniform Law does not provide for an mechanism for time to be extended. That is a strict regime. The above definition of ‘lodgement’ is consistent with the legislative objective in s 323(b) ‘to ensure that there is an accountable and transparent process for the appointment of interveners and for the conduct of interventions.’ To equate lodgement with filing, as contended by the respondents, would make a strict regime even more so, and would not be consistent with that objective.
Did Mr Kaczmarski lodge his appeal on time?
What was the deadline for lodging the appeal?
Mr Marcus was appointed as manager of Taylor Preston Lawyers on 3 December 2015 (‘the Marcus Appointment’).[22] Mr Critchley was appointed as manager on 5 July 2016 to 28 October 2016 (‘the First Critchley Appointment’). On 28 October 2016, Mr Critchley was reappointed as manager to 28 April 2017 (‘the Second Appointment’).[23] On 28 April 2017, Mr Critchley was further reappointed as manager to 15 December 2017 (‘the Third Critchley Appointment’).[24]
[22]The first Bui affidavit [7].
[23]Ibid.
[24]Ibid. The VLSB made the appointments pursuant to s 334 of the Uniform Law.
The VLSB wrote to inform Mr Kaczmarski of the above appointments by letters dated 3 December 2015, 28 October 2016 and 28 April 2017 respectively. The letters included copies of the respective Notices of Appointment of Mr Marcus and Mr Critchley to Taylor Preston.[25]
[25]The first Bui affidavit [9].
Mr Kaczmarski deposes that he received the letter informing him of the Marcus Appointment on 3 December 2015. Mr Kaczmarski does not depose as to when he received the letters informing him of the First and Second Critchley Appointments.
Mr Kaczmarski submits that he ought to have been given a week’s notice of the Third Critchley Appointment and informed of the duration of the appointment.[26] I do not accept that submission. It has no legal basis.
[26]Transcript of proceedings, 7-8.
Mr Kaczmarski deposes that he received the letter informing him of the Third Critchley Appointment on or about 10 May 2017 and made an appointment [with the Court] to lodge the documents objecting to the Critchley appointment on the same day.[27] He stated that his house is under construction and that there are contractors on site. Mr Kaczmarski said the postman leaves correspondence either in the letter box or the electrical meter box located at the front of the house.[28] Mr Kaczmarski submitted that he received the 28 April letter on 10 May 2017. Mr Kaczmarski said that his son Jeremy received an email from the VLSB a few days before 10 May 2017.[29] There is no evidence that Mr Kaczmarski checked his mail each day.
[27]Transcript of Proceedings, 12; the affidavit of Eugene Kaczmarski sworn on 2 June 2017 (‘the first Kaczmarski affidavit’).
[28]Transcript of Proceedings, 9, 10.
[29]Ibid.
In relation to the Third Critchley Appointment, the respondents submit the letter of notice of the appointment was dated 28 April 2017 and sent by post on 1 May 2017. The envelope enclosing the letter was stamped ‘Priority’.[30] Counsel submitted that Australia Post advertises that ‘Priority’ stamped letters posted within Metropolitan areas of capital cities have an estimated delivery time of one business day and that in the ordinary course, the envelope containing the letter and notice would have been delivered to Mr Kaczmarski’s address on 2 May 2017.[31]
[30]The Respondents’ Outline of Submissions [16]-[18]; the affidavit of Moohammad Mahmood affirmed on 19 July 2017.
[31]The Respondents’ Outline of Submissions [22]-[23] in reference to the affidavit of Thanh Thi Mai Bui sworn on 19 July 2017 (‘the second Bui affidavit’).
Mr Kaczmarski questioned the accuracy of the affidavit of Moohammad Mahmood of the VLSB, affirmed on 19 July 2017 (‘the Mahmood affidavit’).[32] In his affidavit, Mr Mahmood deposed as to the circumstances surrounding the service of the letter dated 28 April 2017 (‘the 28 April letter’) informing Mr Kaczmarski of the Third Critchley Appointment. Mr Kaczmarski inferred that it was unlikely the deponent remembered the exact day he sent the letter and further opined that Mr Mahmood was ‘pushed by the management to sign this affidavit in fear of losing his job.’[33] Mr Kaczmarski submitted that there is no record of the identity of the person from the courier company engaged to collect the 28 April letter and there is no record of the date on which the letter was sent to the post office. Mr Kaczmarski stated that ‘it [28 April letter] could even wait one week’.[34]
[32]Transcript of proceedings, 8.
[33]Ibid.
[34]Ibid 9.
I accept the Mahmood affidavit evidences that the notice was sent by post on 1 May 2017, and the envelope enclosing the letter was stamped ‘Priority’.[35] I do not accept Mr Kaczmarski’s challenge to the Mahmood affidavit. It is conjecture and without any evidentiary foundation.
[35]Ibid; the affidavit of Moohammad Mahmood affirmed on 19 July 2017 [4].
Section 445 of the Uniform Law provides :
TIME OF SERVICE
For the purpose of this Law, a notice or other document is taken to have been served on, or given to, a person or law practice— (a) in the case of delivery in person—at the time the document is delivered; or (b) in the case of posting—2 business days after the day on which the document was posted.
I accept the respondents’ submission that Mr Kaczmarski’s evidence of receipt as deposed in his two affidavits does not displace the effect of s 445 of the Uniform Law. I also rely on the Mahmood affidavit. The notice was posted on 1 May 2017. Applying s 445 of the Uniform Law, the notice was served on Wednesday 3 May 2017. Accordingly, Mr Kaczmarski was required to lodge his appeal in respect of the third Critchley appointment by 10 May 2017.
Did Mr Kaczmarski lodge his appeal on time in respect of the Marcus, First and Second Critchley Appointments?
In relation to the Marcus Appointment, the respondents submit that Mr Kaczmarski deposed in his affidavit receipt of the letter of service giving notice of the appointment on 3 December 2015 and that it can be presumed that the notice was served by at least 3 December 2015. Therefore to the extent the Notice of Appeal seeks to appeal against the Marcus Appointment, it was lodged out of time and must be dismissed.[36]
[36]The Respondents’ Outline of Submissions [12]–[13].
In relation to the First and Second Critchley Appointments, the respondents say the notices of appointment were served on Mr Kaczmarski by letters dated 6 July 2016 and 28 October 2017 respectively; and that Mr Kaczmarski has not adduced any evidence seeking to challenge the service of the notices of appointment on or about the dates of the letters of service.[37] Consequently the Notice of Appeal was lodged at least ten months after service of the notice of the First Critchley Appointment and at least six months after service of the notice of the Second Critchley Appointment.[38] Therefore, to the extent the Notice of Appeal seeks to appeal against the First and Second Critchley Appointments, it was lodged out of time and must be dismissed.
[37]Ibid [16]–[18].
[38]Ibid.
I agree. In respect of the Marcus Appointment, and the First and Second Critchley Appointments, Mr Kaczmarski lodged the appeal documents many months out of time and therefore the scope of the appeal is limited to the Third Critchley appointment.
Did Mr Kaczmarski lodge his appeal on time in respect of the Third Critchley Appointment?
After hours on 10 May 2017 (7.43pm), Mr Williams sent an email to the Court’s Judicial Review and Appeals List email address with appeal documents attached (’the 10 May 2017 email’). A copy of the email is on the Court record. It states, in part:
I refer to my discussions today and attendance with Shane Draper of the Supreme Court Today [sic]. Mr Draper advised Mr Kaczmarski and myself that an email needs to be sent to this email address advising the Supreme Court of an objection to an Appointment of a Manager to a law firm of Taylor Preston Lawyers, together with a request that your office provide both Mr Kaczmarski and myself with a hearing date. This email serves such a purpose.
I note that upon receipt of a date for a hearing, within 7 days of then, both Mr Kaczmarski and myself will file an Affidavit in support of this application.
Please find attached the following.
1.Judicial Review and Appeals List hearing Date Information Form – Eugene Kaczmarski;
…
4. Form 5G to be lodged and filed on behalf of Eugene Kaczmarski;
…
6.Notice of Appeal to be lodged and filed on behalf of Eugene Kaczmarski
…
On the morning of 11 May 2017, a Court Registry staff member responded on behalf of the Judicial Review and Appeals List to the email indicating the procedure that had to be followed. The email, stated in part:
I note your application for judicial review (Form 5G) or notice of appeal was to be issued within 7 days of receipt of the decision of the Legal Services Board (s 358(3) of the Legal Profession Uniform Law 2014 (LUPL)). I understand the letter advising of the decision was forwarded by email to you on 28 April. You may need to seek leave for an extension of time in which to file your review or appeal.
If you wish to pursue this matter, you will also need to decide which method of review you wish to undertake. Section 358(3) of the LUPL provides you may seek either review or appeal. If you seek to issue an originating motion seeking judicial review (Form 5G), you will need to file with that document an affidavit….
Once you have determined which method of review you will pursue, please forward your documentation (including the hearing date information form) to [email address].
…
Approximately two hours later, on 11 May 2017, Mr Williams emailed the same Notices of Appeal and Hearing Date Information Forms for both Mr Kaczmarski and himself. Mr Williams’ cover email, on the Court record states, in part:
Please note that I have attempted on Tuesday and Wednesday this week to file the Notice of Appeal, however it was refused to be accepted by the counter staff. On Tuesday the lady said that she spoke to you and that you said that they cannot accept the Notice of Appeal, and that a Form 5G is to be submitted instead of a Notice of Appeal. Yesterday, Shane advised that an email needed to be sent to you first with the Hearing Date Information Form before the Supreme Court can accept the documentation. Shane said that this email address needs to provide me with a date for a hearing, which we would like in early June 2017.
Please confirm that you accept these documents, given the urgency of the application.
Please advise if you would like me to additionally physically lodge these documents today with the registry so that a copy can be served on the Defendants.
Mr Kaczmarski deposes that he attended the Court Registry on 11 May 2017 to lodge the appeal documents and a fee waiver application.[39] He deposes he was informed that the fee waiver could not immediately be approved and would need to be assessed by another person, and that if it was approved, the notice of appeal would be backdated to 11 May 2017.[40] He deposes that he was asked to provide Registry with further documentation in relation to his fee waiver application on 12, 15, 16, 17 and 18 May 2017. He deposes that his fee waiver application was approved on 18 May 2017.[41]
[39]Affidavit of Eugene Kaczmarski sworn on 5 July 2017 [7] (‘the Second Kaczmarski affidavit’).
[40]Ibid.
[41]Ibid [8],[10].
Mr Kaczmarski submits that the Registry accepted the appeal documents on 11 May 2017. He says he relied on the information given to him by the registry staff member and that he was misled.[42] He says the approval of the fee waiver caused the delay in lodging the documents.[43] Mr Kaczmarski made submissions to the effect that he did everything that was possible and that was required of him under the Uniform Law to lodge the documents within 7 days.[44]
[42]Transcript of Proceedings, 14, 17, 18.
[43]Ibid 14.
[44]Transcript of Proceedings, 16.
Mr Kaczmarski’s evidence, which I accept, is that he attended the Registry on 11 May 2017. The Registry physically accepted the notice of appeal from him. I accept his evidence that the Court indicated that further information was then required in relation to his fee waiver. The Court record indicates, as he says, his fee waiver application was accepted on 18 May 2017. The notice of appeal is stamped as having being filed on that date.
Mr Kaczmarski did not take up the opportunity to provide submissions on the 10 May 2017 email.
The issue of whether Mr Kaczmarski lodged his appeal by way of the 10 May 2017 email is a critical one. The documents lodged on 11 May 2017 were out of time by one day. If the documents were lodged on 10 May 2017, they are not out of time in respect of the third Critchley appointment.
The respondents submit the appeal was not brought within time and the Uniform Law does not provide the Court with statutory power to extend the time for lodgement of any appeal or application for review.[45]
[45]The Respondents’ Outline of Submissions [8], [14], [19], [20], [29].
The respondents submit that the 10 May 2017 email did not constitute lodging of the appeal under s 358(3) of the Uniform Law.[46] They submit that Judicial Review and Appeals List Practice Note SC CL9 (‘the Practice Note’) and the 2015 Rules did not permit lodgement of an originating process by email. The Practice Note provides for filing electronically by CITEC, the Court’s authorised provider of filing services, or in person at the Registry. It is consistent with r 5.11(1.1) of the 2015 Rules. There is no evidence that Mr Kaczmarski attempted to file any originating process electronically. There is no rule that provides for filing of originating process by email. Rule 5.11(1.1) and r 28 of the 2015 Rules (which concern, amongst other things, filing electronically through CITEC) do not provide for it. The Practice Note provides that nothing in it is intended to derogate from any time limits or other applicable requirements of any Act or the Rules of the Court.
[46]Supplementary Submissions of Respondents dated 30 October 2017.
Whilst I agree that documents cannot be filed by email, as discussed above, filing and lodgement are not the same. Therefore, inferences about lodgement should not be drawn from the 2015 Rules and Practice Note concerning filing.
The respondents submit that an inference should be drawn that Mr Kaczmarski understood that he could not lodge an originating process by email because he presented at Registry the following day to attend to the processes associated with lodgement of his appeal documents. Mr Kaczmarski has deposed he attended Court on 11 May 2017 to lodge his notice of appeal and fee waiver form.[47]
[47]The Second Kaczmarski affidavit [6].
However, lodgement cannot be defined by reference to Mr Kaczmarski’s understanding or lack thereof. It is not a subjective test. What must be examined is whether the relevant conduct (the sending and receiving of the 10 May 2017 email) falls within the definition of ‘lodgement’.
The respondents submit that the documents that were sent by email on 10 May 2017 may be characterised as unsigned draft documents concerning two proposed appeals (one by Mr Kaczmarski, one by Mr Williams) for the purpose of obtaining pre-approval of a hearing date to enable them to be lodged subsequently with the Court. Mr Kaczmarski was directed by Court staff to email the initiating process to Court because, consistently with paragraph 6.1 of the Practice Note, parties filing via CITEC must first file a draft of certain documents to the court to obtain pre-approval of a hearing date. Similarly parties may email the initiating process to Court to obtain a hearing date prior to filing the originating process in person at Principal Registry thus expediting the filing process at Registry. This pre-approval process is, the respondents say, consistent with the words used in the 10 May 2017 email.
The Practice Note states, relevantly:
6.1Any document which requires the allocation of a first hearing date (e.g. Order 56 originating motion, summons, etc.) should be filed either:
i.By efiling via Citec: Pre-approval of a hearing date is required in order to file via Citec. In order to obtain a hearing date, the applicant should forward a completed “Judicial Review and Appeals List Hearing Date Information Form” (Schedule 2) together with a draft of the proposed document requiring a first hearing date via email to [email address]. The applicant will be advised by email of the return date. The document should be filed within 48 hours of this advice or the return date may not be guaranteed. A copy of the advice must be provided when filing.
or:
ii.In person at the Principal Registry: A party may obtain pre-approval of a hearing date by following the steps in (i) above. Alternatively, a document requiring allocation of a first hearing date may also be accepted for filing without pre-approval. Where pre-approval has not been sought, the initiating party will be required to complete the “Judicial Review and Appeals List Hearing Date Information Form” at the time of filing. A date for the first hearing will be allocated after review of the initiating party’s documents by a registry lawyer. If the documents are in order, copies of sealed documents for service will be ready to be returned to the initiating party on the following business day.
[emphasis added]
The 10 May 2017 email was sent in accordance with clause 6.1 of the Practice Note. The notice of appeal attached to the email could be characterised as a draft of the proposed notice of appeal. I do not agree with the respondents that the consequence of the email attaching the draft notice of appeal is that the notice of appeal was not actually lodged. True it is, that Mr Kaczmarski’s appeal notice attached to the 10 May 2017 email was unsigned and a pre-approved hearing date was sought. It was accompanied by an application form signed by Mr Kaczmarski. There is no substantive difference between the notice of appeal attached to the 10 May 2017 email and the notice of appeal accepted and filed on 18 May 2017. That is, the notice of appeal stamped with 18 May 2017 as the filing date. The content is the same, save for the date and signature. On the filed notice of appeal, there is a handwritten change to the date of 10 May 2017: ‘10’ is crossed out and ‘18’ is written above it. The filed notice of appeal has been signed by Mr Kaczmarski whereas the one attached to the 10 May 2017 email was unsigned.
The central issue is not answered by a comparison of the notice of appeal filed on 18 May 2017 and that attached to the 10 May 2017 email. Rather, it is whether the notice of appeal was ‘lodged’ by the 10 May 2017 email. Using the definition above, was it deposited with the Court Registry and accepted by it? This leads to the next question.
Could the appeal be lodged by email?
The appeal could be lodged by email for the following reasons. Firstly, in contradistinction to filing court documents, there are no Rules or relevant legislation on how the appeal under the Uniform Law could be lodged. Indeed, lodgement of the appeal by email is consistent with the pre-approval hearing date process in the Practice Note, discussed above. Secondly, the Electronic Transactions (Victoria) Act 2000 (‘the Electronic Act’) permits lodgement by email.
The Electronic Act is not excluded by the 2015 Rules. It appears to operate mutually with the 2015 Rules. For instance, the Note to r 6.07(1) refers to the Electronic Act as operable in terms of service of documents, including by facsimile and email.
Section 4 of the Electronic Act states the objects of the Act are to provide a regulatory framework that:
(a)recognises the importance of the information economy to the future economic and social prosperity of Australia; and
(b) facilitates the use of electronic transactions; and
(c)promotes business and community confidence in the use of electronic transactions; and
(d)enables business and the community to use electronic communications in their dealings with government.
Section 8 of the Electronic Act permits certain information required to be given in writing to be given by means of an electronic communication. It defines ‘giving information’ to include ‘making or lodging a claim’.[48]
[48]Section 8(5).
Section 8 of the Electronic Act provides:
Writing
(1)If, by or under a law of this jurisdiction, a person is required to give information in writing, that requirement is taken to have been met if the person gives the information by means of an electronic communication, where—
(a)at the time the information was given, it was reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference; and
(b)the person to whom the information is required to be given consents to the information being given by means of an electronic communication.
(2)If, by or under a law of this jurisdiction, a person is permitted to give information in writing, the person may give the information by means of an electronic communication, where—
(a)at the time the information was given, it was reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference; and
(b)the person to whom the information is permitted to be given consents to the information being given by means of an electronic communication.
(3)This section does not affect the operation of any other law of this jurisdiction that makes provision for or in relation to requiring or permitting information to be given, in accordance with particular information technology requirements—
(a)on a particular kind of data storage device; or
(b)by means of a particular kind of electronic communication.
(4)This section applies to a requirement or permission to give information, whether the expression "give", "send" or "serve", or any other expression, is used.
(5)For the purposes of this section, giving information includes, but is not limited to, the following—
(a)making an application;
(b)making or lodging a claim;
(c)giving, sending or serving a notification;
(d)lodging a return;
(e)making a request;
(f)making a declaration;
(g)lodging or issuing a certificate;
(h)making, varying or cancelling an election;
(i)lodging an objection;
(j)giving a statement of reasons.
The 10 May 2017 email, was in a condition ‘readily accessible so as to be useable for future reference’ within the meaning of s 8. That is, the email and attachments could be read by Court Registry staff.[49]
[49]On interpretation of s 8, see: Bellaire Pty Ltd v Roselink Enterprises Pty Ltd [2014] WASC 142; Singh v Legal Aid New South Wales [2014] NSWIRComm 1016 in relation to the equivalent New South Wales and Western Australian legislation.
The next question is whether there was consent within the meaning of s 8. Clause 8 of the Explanatory Memorandum provides that consent relates to the medium of communication, not the content or substance. Section 3(1) of the Electronics Act states consent ‘includes consent that can reasonably be inferred from the conduct of the person concerned, but does not include consent given subject to conditions unless the conditions are complied with’.
The 10 May 2017 correspondence indicates that, consistently with the Practice Note, Mr Williams had been directed to email the information concerning his and Mr Kaczmarski’s appeals to the Court’s Judicial Review and Appeals List.
The respondents contend that at no time did the Court consent to lodgement of the appeal by email. The Practice Note concerns, they contend, a pre-approval step prior to lodgement of the appeal. I do not agree that the pre-approved hearing date process necessarily occurs prior to the ‘lodgement’ of an appeal. It occurs prior to the filing of an appeal.
Although the Practice Note does not expressly provide for ‘lodgement’ by email, consent for lodgement by email may be inferred from it. Paragraph 6.1 of the Practice Note provides an email address for receipt of documents and sets out a process for obtaining a hearing date prior to filing. It requires the proposed documents (in this case, appeal documents) be attached. Paragraph 11.2 provides that communications with the Court are by email and provides an email address.
It may be inferred that the Court consents to the lodgement of originating processes in the Judicial Review and Appeals List by email.
When was the appeal lodged?
The 10 May 2017 email was received by the Court on that date at 7.43pm and it must be taken to be lodged at that time, for the following reasons.
The Uniform Act does not provide a definition of ‘day’, nor does the Interpretation Act. The references to ‘time’ in s 44 of the latter Act does not assist. ‘Day’ should be given its ordinary and natural meaning. That is ’the period of twenty four hours as a unit of time, esp. from midnight to midnight’.[50]
[50]Shorter Oxford English Dictionary on Historical Principles (Oxford University Press, 6th ed, 2007) 609.
Section 13A of the Electronic Act states:
Time of receipt
(1)For the purposes of a law of this jurisdiction, unless otherwise agreed between the originator and the addressee of an electronic communication—
(a)the time of receipt of the electronic communication is the time when the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee; or
(b)the time of receipt of the electronic communication at another electronic address of the addressee is the time when both—
(i)the electronic communication has become capable of being retrieved by the addressee at that address; and
(ii)the addressee has become aware that the electronic communication has been sent to that address.
(2)For the purposes of subsection (1), unless otherwise agreed between the originator and the addressee of the electronic communication, it is to be assumed that the electronic communication is capable of being retrieved by the addressee when it reaches the addressee's electronic address.
(3)Subsection (1) applies even though the place where the information system supporting an electronic address is located may be different from the place where the electronic communication is taken to have been received under section 13B.
Applying s 13A, the Court received the 10 May email at 7.43pm. At that time it was capable of being retrieved by the Court. This means it was accepted by the Court at that time and date. The appeal was accordingly lodged then.
The respondents’ contention that s 8(3) of the Electronics Act does not apply because it would affect the operation of r 5.11 and r 28 is rejected because those rules relate to filing, not lodgement. The respondents also referred to, r 3.09, which provides the hours of the office of the Court are from 9.30am to 4.00pm. This rule is not applicable as there is no requirement that the lodgement occur during these hours, or that lodgement be physically done at Registry. As discussed above, lodgement could occur electronically.
Is the relief Mr Kaczmarski seeks available to him pursuant to s 358(4) of the Uniform Law?
The Notice of Appeal filed on 18 May 2017 seeks the following orders:
1. The appeal be allowed.
2. The appointment of Mr Matthew Critchley as Manager be set aside.
3.The respondent pay to the appellant all fees, costs and expenses payable by the appellant arising out of the appointment of Mr Matthew Critchley as Manager.
4.The respondent pay the costs of this appeal.
5.The respondent pay to the appellant punitive damages, pecuniary damages, salaries, and damages as a result of the files of Taylor Preston Lawyers being sold to Advice Line Injury Lawyers (Holding Redlich) and Robinson Gill.
6.The respondent pay the appellant the total legal fees recovered as a result of the sale or dispossession of approximately 30,000 clients, over 2 billion in assets, 100 lawyers in 3 states and millions of dollars in Westpac bank and trust accounts in Commonwealth bank.
7.The respondent issue a notice on its website that it erred in relation to the appointment of a manager.
8.The respondent Mr. Matthew Critchley is charged criminally and takes a mental assessment by an independent psychiatrist doctor from another state.
9.The respondent Mr. Matthew Critchley stop sending police to the appellants doorstep and to stop similar harassing behaviours towards the appellant.
10.The respondent cease to have any Westpac bank access authority related to me and my businesses, including cease access to Westpac bank and for the respondent to cease withdrawing money from Taylor Preston Lawyers and my other businesses.
11.The respondent Mr Critchley and his associate stop physically assaulting myself including in the city area as previously occurred on or around 8 August 2016 outside the office of 45 William Street, Melbourne, and stealing my personal belongings by violence, aggressive behaviour, and force.
12.The respondent allow access and return my personal and documentations that were located at Level 5, 45 William Street, Melbourne VIC 3000.
13.The respondent provide the appellant with an update in relation to the previous management of Taylor Preston Lawyers, including responses to the appellants previous letters which have been unrespondeded [sic].
14.The respondent return to the appellant its personal belongings, mail, email accounts, including in relation to the appellant, its other businesses Allan Hamilton, Parker Singleton, Taylor Preston Accountants, Taylor Preston Real Estate, plus any other records, including returning artwork, cash left on premises and my other assets and documents that were located at L5, 45 William Street, Melbourne VIC 3000.
15.The respondent and Mr. Matthew Critchley provide the appellant written reasons why they cut access to the appellants email address, access to banking, access to the appellants mail and other access that it cut including access to the premises.
16.The respondent to provide the appellant with its complete records in relation to the appellant, and Taylor Preston Lawyers, including the following:
a.records and file notes, emails, text records, electronic and other documentation.
b.Mr. Michael McGarvies records and communications with Holding Redlich and Advice line injury lawyers in relation to the sale of Taylor Preston Lawyers files to Holding Redlich;
c.Copies of text messages, file notes, call logs, letters, and emails of Holding Redlich Lawyers to Mr. Matthew Critchley, Mr. Michael McGarvie, family and associates of Michael McGarvie, the Respondent, in relation to the purchase of files and clients of Taylor Preston Lawyers or any other compensation payments made by Holding Redlich to Mr. Michael McGarvie or friends or associates of Mr. Michael McGarvie;
d.Copies of letters that were sent to all of the clients of Taylor Preston Lawyers in or around August 2016 advising about an inadequacy of service and professionalism against senior lawyers Kathryn Footner and Carolyn McInnes who have a combined experience of approximately 30 years in personal injury.
17.The respondent Mr. Matthew Critchley tarnishing the reputation of Taylor Preston Lawyers by contradicting the previous manager Mr. Shaun Marcus’ position that the files of Taylor Preston Lawyers were aduately [sic] handled.
18.The respondent Mr. Matthew Critchley provide further information about a breach of undertaking to Elias Hanna, a senior family lawyer with over 17 years of experience in solely family law, about promising to pay him his fees and wages owed of approximately $50,000, and then deciding not to proceed with the undertaking.
19.Such further or other relief as the Court deems appropriate.
Mr Kaczmarski relies on s 358 of the Uniform Law in seeking the above orders. Section 358(4)(d) grants the Court power to ‘make any other orders it thinks fit’. Mr Kaczmarski submitted that Mr Critchley took everything he had in the office including his personal belongings. Mr Kaczmarski submitted that he called the police on several occasions but was told by the police that they could not talk to him and to leave the property. Mr Kaczmarski said that the VLSB did not ‘answer his question(s) or any letter’.[51] He further questioned how this could happen in this country. There were numerous further factual assertions that Mr Kaczmarski made. However, the legal issue to be determined is whether or not Mr Kaczmarski can rely upon s 358(4)(d) of the Uniform Law.
[51]Transcript of Proceedings, 25.
As conceded by the respondents, paragraphs 1-4 and 19 of the Notice of Appeal should be allowed. The respondents submit paragraphs 5-18 of the relief sought by Mr Kaczmarski lie beyond the jurisdiction of the Court in this appeal.[52] They seek those paragraphs be struck out in order to limit the scope of the appeal to the decision(s) to appoint a manager to the relevant entity.[53]
[52]The Respondents’ Outline Submissions [43]–[44].
[53]Ibid [51].
The respondents submit that the decision for the Court to consider on appeal is the decision of the VLSB to appoint or reappoint a manger to Taylor Preston. This decision must be considered in the context of Chapter 6 of the Uniform Law, particularly (a) the objectives of the Chapter (s 323); (b) the prescribed circumstances warranting external intervention (s 326); the power of the VLSB to make a determination to initiate external intervention (s 327); and (d) the scope of the appointment (s 328).[54]
[54]Ibid [45].
They submit that an appeal under s 358 of the Uniform Law is not the proper means for a broad enquiry into the management of Taylor Preston under the Appointments of Mr Marcus and Mr Critchley. Civil proceedings seeking damages by way of writ and statement of claim and criminal proceedings cannot form part of this proceeding.[55]
[55]Ibid [49].
Further, the respondents submit that it would be burdensome for the respondents to be compelled to respond on oath to the broad and serious allegations made about them by Mr Kaczmarski in the context of an appeal.[56]
[56]Ibid [50].
I accept Mr Kaczmarski’s submission that s 358(4)(d) of the Uniform Law is applicable and grants the Court power to make any other orders it thinks fit. However, I agree with the respondents’ submission that the orders that the Court may make under s 358(4)(d) must be confined to the scope of an appeal under s 358 of the Uniform Law. Consequently, consideration must be given to Chapter 6 of the Uniform Law. In particular, s 232 providing the objectives of the Chapter, s 326 providing the circumstances warranting external intervention, s 327 granting the first respondent power to make a determination to initiate external intervention and s 328 providing the scope of the appointment.
Paragraph 5 of the Notice of Appeal seeks punitive damages, pecuniary damages, salaries and damages as a result of the sale of particular files (owned by Taylor Preston) to Advice Line Injury Lawyers (Holding Redlich) and Robinson Gill. Paragraph 6 of the Notice of Appeal seeks legal fees recovered as a result of the sale or dispossession of clients, assets, lawyers and millions of dollars in several bank accounts. The claims are broad and include serious allegations, the determination of which requires an in-depth analysis of the management of Taylor Preston by the appointed external managers and further evidence of particular claims and damages sought. I do not consider an appeal under s 358 of the Uniform Law to be an appropriate mechanism to determine the claims.
Accordingly, paragraphs 5 and 6 of the Notice of Appeal will be struck out.
Paragraphs 8, 9 and 11 relate to alleged criminal matters and/or communications with Victoria Police. The Uniform Law is civil legislation. This is reinforced in the objectives of the Law. Those objectives have been outlined above.
The Uniform Law refers to criminal penalties in s 451. The section provides:
451 Criminal Penalties
(1)A subsection of a section of this Law, or a section of this Law that is not divided into subsections, creates a criminal offence if the word ‘penalty’ is set out at the foot of the subsection or section and is not proceeded by the word ‘civil’.
(2)An offence referred to in subsection (1) is punishable by a penalty not exceeding the penalty set out at the foot of the subsection or section.
(3)Proceedings for an offence referred to in subsection (1) against this Law as applied in this jurisdiction are to be dealt with in accordance with jurisdictional law.
The above section must be read in conjunction with s 154 of the Legal Profession Uniform Law Application Act 2014 enumerating the bodies with powers to prosecute offences under the Uniform Law namely the VLSB, a police officer or the Director of Public Prosecutions.
Paragraph 8 of the Notice of Appeal seeks that Mr Critchley be criminally charged. Mr Kaczmarski does not have standing to prosecute alleged criminal offences nor is the relief sought within the jurisdiction of the Court pursuant to s 358 of the Uniform Law. Accordingly paragraph 8 of the Notice of Appeal will be struck out.
Section 447 of the Uniform Law refers to injunctions to restrain contraventions of Law or Uniform Rules. It provides:
447 Injunctions to restrain contraventions of Law or Uniform Rules
(1)This section applies if a person has contravened, is contravening, or is likely to contravene this Law or the Uniform Rules.
(2)The designated local regulatory authority may apply to the Supreme Court for an injunction. (…)
Section 6 of the Uniform Law defines designated local regulatory authorities as follows:
designated local regulatory authority means a person or body specified or described in a law of this jurisdiction for the purposes of a provision, or part of a provision, of this Law.
Paragraph 9 of the Notice of Appeal seeks that Mr Critchley refrain from sending police to the Mr Kaczmarski’s residence and refrain from harassing him. Paragraph 11 of the Notice of Appeal seeks that Mr Critchley refrain from physically assaulting Mr Kaczmarski. Although paragraphs 9 and 11 of the Notice of Appeal appear to be seeking injunctive relief, Mr Kaczmarski does not have standing under s 447 of the Uniform Law to seek an injunction. Accordingly paragraphs 9 and 11 of the Notice of Appeal will be struck out. For clarity, this ruling does not bear on any other avenues that Mr Kaczmarski seeks to traverse concerning injunctive relief by way of other proceedings. The ruling is limited to relief sought pursuant to s 358(4) of the Uniform Law.
Paragraph 16 seeks disclosure of a broad range of documents. There is no express power in s 358(4) of the Uniform Law to make such orders giving relief in the form of document disclosure. The disclosure of documents may fall within the ‘other orders’ the trial judge may make pursuant to s 358(4)(d) of the Uniform Law. Accordingly, paragraph 16 of the Notice of Appeal will not be struck out. However, as discussed below, the relief sought must be confined to the Third Critchley Appointment.
A similar analysis applies to paragraphs 13, 15 and 18. The respondents say they are akin to interrogatories. It is a matter for the trial judge as to whether these matters fall within the ‘other orders’ that may be made pursuant to s 358(4)(d) of the Uniform Law. Accordingly, paragraphs 13, 15 and 18 will not be struck out. The relief sought in those paragraphs must be confined to the Third Critchley Appointment.
As to the respondents’ submission in relation to some of the paragraphs seeking relief in the Notice of Appeal being incomprehensible, such as paragraph 17; Mr Kaczmarski is a self-represented litigant. Having read the paragraphs, it is clear what relief he is seeking. Whether or not the Court sees fit to make those orders pursuant to s 358(4)(d) of the Uniform Law is a matter for the trial judge. I do not agree with the respondents’ submission, unsupported by evidence, that requiring it to respond to those paragraphs would be burdensome. Paragraph 17 will not be struck out.
Finally, as a consequence of this application, the appeal will be confined to the Third Critchley Appointment. All the relief sought by Mr Kaczmarski will need to be confined to that.
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