Kuek v Victoria Legal Aid & Anor
[2008] VSCA 131
•25 July 2008
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 3794 of 2008
| GABRIEL KUEK | |
| Applicant | |
| v | |
| VICTORIA LEGAL AID | Respondents |
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APPLICATION ON SUMMONS
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JUDGES: | BUCHANAN JA and MANDIE AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 25 July 2008 | |
DATE OF JUDGMENT: | 25 July 2008 | |
MEDIUM NEUTRAL CITATION: | [2008] VSCA 131 | |
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Practice and procedure – Discovery – Proceedings for judicial review – Order for discovery made by master – Appeal – Affidavit of documents served – Application to extend the time to apply for leave to appeal against costs order – Principal issue moot – Application dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Perkins with Mr D Hancock | Access Law |
| For the First Respondent | Ms D S Mortimer SC with Mr R J Harris | Victoria Legal Aid |
BUCHANAN JA:
The appellant is a solicitor who acted for one Ming Fai Kwan in defending a charge of trafficking in a large commercial quantity of cocaine. Kwan applied to the first-named respondent (‘VLA’) for legal aid. VLA advised Kwan that it intended to grant him legal aid by allocating the matter to the criminal division of VLA or a firm on the panel of VLA solicitors. The appellant was not on the panel. Kwan sought to review the decision by an independent reviewer pursuant to s 34 of the Legal Aid Act 1978. There followed a series of reviews, the last one being conducted by the second-named respondent. He confirmed VLA's original decision.
The appellant brought proceedings for judicial review of the second-named respondent's decision pursuant to the provisions of O. 56 of the Rules of Court. The appellant sought orders quashing the decision of the second-named respondent and compelling VLA to refer the matter to another independent reviewer. The principal relief sought was an order quashing the decision that 'determined that the grant of legal assistance to Ming Fai Kwan by a panel practitioner was correct'.
By summons dated 21 November 2007, VLA sought discovery by the appellant of certain categories of documents. In a proceeding commenced by originating motion, discovery of documents can only be obtained by order of the court: see r. 29.07(2).
On 23 November 2007, a master ordered that by 10 December 2007 the appellant discover all documents contained in the terms of his retainer by Kwan, documents recording the costs incurred by Kwan, requests for payment of fees by the appellant to Kwan, and documents recording payment of fees by Kwan. The master also ordered the appellant to pay 75% of the costs of VLA of the summons.
The appellant appealed from the master's decision to a judge in the trial division. On the eve of the hearing of the appeal, the appellant served upon VLA an affidavit of documents complying with the order of the master. At the hearing of the appeal, counsel for the appellant submitted that an order for discovery in a proceeding other than one commenced by writ was only to be made if special circumstances were established and that 'there were no special circumstances that justified the order made by Master Daly'. Counsel for VLA, on the other hand, submitted that the fact that VLA sought discovery with respect to a deposition by the appellant that he held a retainer and had not been paid constituted a special circumstance. That was the extent of the submissions made with respect to the correctness of the decisions by the master.
Both counsel for the appellant and for VLA appeared to treat the substance of the appeal as one concerned only with the order for costs made by the master. At the conclusion of the argument, counsel for VLA told the trial judge that there was a written outline of VLA's submissions but said that she was loath to hand it up because it might provoke a response from the appellant. The trial judge then said that he thought that counsel for the appellant 'really only touched upon the matter [which I interpret to be whether an order for discovery should have been made], as a matter of context, I think'. Counsel for the appellant made no demur. His Honour dismissed the appeal and held:
The seeking by VLA of the named classes of documents was wholly justified. The plaintiff's affidavit in support of the originating motion referred to the terms of his retainer and to non-payment. If the plaintiff wishes to fail in his obligation of discovery and then come good at the last minute, he should bear the costs of the wasteful exercise.
The appellant has applied for leave to appeal and an extension of time within which to seek leave. The parties have agreed that it is appropriate for the Court as presently constituted to dispose of the appeal. In order to accommodate that wish, the President has determined, pursuant to s 11(1A) of the Supreme Court Act 1986, that in this case two judges of appeal constitute the Court of Appeal.
With respect to the application to extend time, the application should have been made on 8 May 2008 but was not made until 27 days later. It appears the appellant waited for revised reasons for the decision to become available. Revised reasons were published on 22 May 2008, about two weeks before the application for leave to appeal was made. The respondent contends that it is prejudiced because there will be delay in disposing of the proceeding for judicial review. That delay is attributable to the appeal itself rather than the appellant's tardiness in making application for leave to appeal.
Ordinarily, in circumstances such as these, I would favour extending the time within which to apply for leave to appeal. The present case, however, is one where I think the merits of the appeal are to be taken into account in determining whether to extend time. The delivery of the affidavit of documents did not necessarily dispose of the appeal. The possibility remained that the order for costs could be attacked by establishing that the order for discovery should not have been made. On the other hand, the determination of the substance of the appeal simply to resolve the question of costs might properly have been refused.
In the present case, I am of the opinion that the latter was the appropriate course. Neither counsel advanced any argument to demonstrate whether or not the order for discovery should have been made, apart from the bare assertion that there were or were not special circumstances. Neither counsel appeared to think that the judge should pause to consider an outline of argument dealing with the merits of the appeal. This was a case where the appeal should have been simply dismissed on the basis that the principal issue had become moot, and the question of costs was not of sufficient significance to warrant a determination of that otherwise irrelevant issue. For that reason, I would refuse the application to extend time, just as I would refuse the application for leave to appeal.
MANDIE AJA:
I agree.
BUCHANAN JA:
The order of the Court will be that the application by the appellant to extend time within which to seek leave to appeal is refused.
(Discussion ensued.)
BUCHANAN JA:
In our opinion, the appropriate order for costs to be made in the light of the letter dated 17 June 2008, sent by the solicitor for the first-named respondent to the applicant, is that the applicant pay the costs of the first-named respondent of and incidental to the application to extend time within which to apply for leave to appeal and of the application for leave to appeal on a party-party basis up to 24 June 2008, and thereafter as between solicitor and client.
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