Kuek

Case [2012] FCA 494

FEDERAL COURT OF AUSTRALIA

Kuek [2012] FCA 494

Citation: Kuek [2012] FCA 494
Appeal from: Application for leave to appeal Modra v State of Victoria [2012] FCA 240
Party: GABRIEL KUEK
File number: VID 283 of 2012
Judge: JESSUP J
Date of judgment: 16 May 2012
Catchwords: PRACTICE AND PROCEDURE – Leave to appeal – Whether sufficient doubt as to correctness of judgment below to warrant attention of Full Court – Costs ordered to be paid by legal practitioner – Whether there was serious dereliction of duty – Sufficiency of pleading – Whether engagement of counsel relevant – Whether clients’ refusal to waive privilege over communications relevant – Whether practitioner certifying pleading retained ultimate responsibility – Whether injustice would arise if leave to appeal not granted.
Legislation: Access to Justice (Civil Litigation Reforms) Amendment Act 2009 (Cth)
Federal Court of Australia Act 1976 (Cth) ss 24(1A), 43(3)(f)
Supreme Court Act 1981 (UK) s 51
Cases cited: Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Cement Australia Pty Ltd v Australian Competition and Consumer (2010) 187 FCR 261
Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Hogan v Australian Crime Commission (2010) 240 CLR 651
House v R (1936) 55 CLR 499
Medcalf v Mardell [2003] 1 AC 120
Stewart v Deputy Commissioner of Taxation (2010) 267 ALR 637
White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169
Date of hearing: 24 April 2012
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 32
Counsel for the Applicant: Mr G Nash QC with Mr J Brett
Solicitor for the Applicant: Access Law

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 283 of 2012
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
IN THE MATTER OF:

GABRIEL KUEK
Applicant

JUDGE:

JESSUP J

DATE OF ORDER:

16 MAY 2012

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

Note:    Entry of orders is dealt with in rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 283 of 2012
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
IN THE MATTER OF:

GABRIEL KUEK
Applicant

JUDGE:

JESSUP J

DATE:

16 MAY 2012

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. This is an application for leave to appeal from a judgment delivered by Gray J on 19 March 2012, in which his Honour ordered the applicant, Gabriel Kuek of “Access Law”, personally to pay the costs which his then client, Luke Modra (“Modra”) (by his next friend, Ellen Modra) had been ordered to pay in a proceeding commenced by him against the State of Victoria, in which unlawful discrimination under the Disability Discrimination Act 1992 (Cth) had been alleged. Leave is required because s 24(1A) of the Federal Court of Australia Act 1976 (Cth) provides that an appeal shall not be brought from an interlocutory judgment unless the…

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AGLC
Kuek [2012] FCA 494
Case
[2012] FCA 494
Decision Date

CaseChat Overview and Summary

The applicant, Mr Kuek, applied for leave to appeal a decision of the Federal Circuit Court that dismissed his claim against his legal practitioner, Mr Tan. Mr Kuek contended that the practitioner had failed to properly represent him, leading to the dismissal of his case, and sought leave to appeal the decision. The application was heard in the Full Court of the Federal Court of Australia.

The legal issues before the court included whether there was a sufficient doubt as to the correctness of the judgment below to warrant the attention of the Full Court, whether there was serious dereliction of duty on the part of the practitioner, the sufficiency of the pleadings, whether the engagement of counsel was relevant, whether the clients' refusal to waive privilege over communications was relevant, whether the practitioner certifying the pleading retained ultimate responsibility, and whether an injustice would arise if leave to appeal was not granted. The court needed to determine whether the applicant had demonstrated that the case was suitable for appeal and that there was a real prospect of success on appeal.

The court held that the applicant had not established a sufficient doubt as to the correctness of the judgment below to warrant the attention of the Full Court. The court found that there was no serious dereliction of duty on the part of the practitioner, and that the sufficiency of the pleadings was not a relevant consideration. The court also held that the engagement of counsel and the clients' refusal to waive privilege over communications were not relevant to the application. The practitioner had retained ultimate responsibility for the conduct of the case, and the court found that no injustice would arise if leave to appeal was not granted. The application for leave to appeal was dismissed, and the applicant was ordered to pay the costs of the respondent.

The court ordered that the application for leave to appeal be dismissed, and that the applicant pay the costs of the respondent. The orders were made under rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The application for leave to appeal be dismissed.

Note: Entry of orders is dealt with in rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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