JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 May 2017
DATE OF JUDGMENT:	21 June 2017
CASE MAY BE CITED AS:	Kuek v Phillips
MEDIUM NEUTRAL CITATION:	[2017] VSC 332

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APPEAL – Appeal from decision of Magistrate under s 109 Magistrates Court Act 1989 (Vic) - No error of law disclosed - Subject matter jurisdiction - Magistrates Court General Civil Procedure Rules 2010 (Vic) – Pleadings – Function of Pleadings - Whether case was outside the pleadings – No procedural error – Alleged failure to indorse statement of claim – Apprehended bias application – Obligation of counsel on making apprehended bias application – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P G Adami	Access Lawyers
For the Respondent	Mr D Harrison	Arnold Thomas & Becker

HIS HONOUR:

Introduction

Julie Phillips is a law clerk who, from time to time, was engaged by Gabriel Kuek, a solicitor, to work on files handled by his legal practice. This appeal from a Magistrate’s decision concerns the work performed by Ms Phillips on two such files. Mr Kuek recovered his fees for costs in respect of these files, including work done by Ms Phillips; but he has refused to pay her anything, saying the arrangement between them was such that any payment for work performed by Ms Phillips was entirely at his discretion.

In December 2016, a Magistrate rejected Mr Kuek’s account and found that Ms Phillips:

(a) was an employee of Mr Kuek; and

(b) was entitled to nearly $20,000 for the work and labour she had performed on the files and for which Mr Kuek had received payment.

Mr Kuek now appeals the Magistrate’s decision. The grounds of appeal are, in the main, without foundation and for the reasons that I now set out the appeal will be dismissed.

Events preceding the hearing in the Magistrates’ Court

Ms Phillips issued her complaint on 19 December 2013.

The pleaded claim was for work and labour done in relation to two matters in which Mr Kuek (who practiced under the name Access Law) acted for Mr Stefan Benic in discrimination claims.

Ms Phillips alleged that she was an employee of Mr Kuek and performed a total of just under 150 hours of work in relation to those two cases, for which she was owed $19,537.70.

Mr Kuek was served with the claim on 13 January 2014.

On 1 May 2015, the proceeding was dismissed pursuant to Rule 21.11 of the Magistrates’ Court General Civil Procedure Rules 2010 (Vic) (‘the Rules’), which reads as follows:

(1)A complaint stands dismissed as against any defendant at the expiration of three months after the period of the validity for service of the complaint, or, if that period has been extended, after the expiration of any extension of the period,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kuek v Phillips

Details

AGLC: Kuek v Phillips [2017] VSC 332
Case: [2017] VSC 332
Decision Date: 21 June 2017

CaseChat Overview and Summary

The case of Kuek v Phillips involves an appeal by the respondent, Phillips, against a decision made by a Magistrate. The primary dispute pertains to whether there was an error in the lower court's handling of procedural matters, including the pleadings and the handling of an apprehended bias application. The appeal was lodged under section 109 of the Magistrates Court Act 1989 (Vic), and the matter was heard in the Supreme Court of Victoria. The respondent, Phillips, sought to challenge the decision on grounds of procedural errors and alleged bias.

The court was required to determine if the lower court had correctly applied the Magistrates Court General Civil Procedure Rules 2010 (Vic) in managing the pleadings and if there was any procedural error in the handling of the apprehended bias application. A key issue was whether the case ventured beyond the scope of the pleadings, which is critical in determining the subject matter jurisdiction of the court. Additionally, the court needed to consider whether there was a failure to properly indorse the statement of claim and whether the respondent's obligations were met in making the apprehended bias application.

The Supreme Court found no error of law in the lower court's decision. The court held that the pleadings were adequately managed and that the case did not exceed the scope of what was pleaded. The court also confirmed that there was no procedural error in handling the apprehended bias application. Furthermore, the court noted that the respondent's obligations were met when making the apprehended bias application, and thus, there was no ground for bias. Consequently, the appeal was dismissed with no findings of error.

The final orders of the court were that the appeal was dismissed, and the decision of the lower court was upheld. The respondent was ordered to pay the appellant's costs of the appeal.

Orders