Miller v Schlicht - [2021] VSCA 268

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0046

JAMES EDWARD MILLER	Applicant
v
ANTHONY THEODORE SCHLICHT	Respondent

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JUDGES:	NIALL and R OSBORN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 September 2021
DATE OF JUDGMENT:	23 September 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 268
JUDGMENT APPEALED FROM:	[2021] VSC 98 (Moore J)

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ADMINISTRATIVE LAW – Appeal on question of law – Whether judge erred in finding the applicant did not identify any errors of law in notice of appeal – Where evidence of trial not tendered into evidence – No error of law established – Appeal dismissed – Magistrates’ Court Act 1989 s 109.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Respondent	Mr S Buchanan	Simon Nixon & Associates

NIALL JA
R OSBORN JA:

The applicant (‘Mr Miller’) was the applicant in a proceeding in the Victorian Civil and Administrative Tribunal (‘VCAT’ or ‘the Tribunal’). He retained a firm of solicitors, Vasilaras & Co Pty Ltd (‘Vasilaras & Co’), to act for him in the proceeding. The solicitors briefed Mr Anthony Schlicht, a barrister in practice at the Victorian Bar, to appear on behalf of Mr Miller. The proceeding in VCAT was brought against a number of respondents and concerned title to a residential property in Moggs Creek, Victoria. The proceeding was hard fought and the final hearing ran for a number of days in February 2016.[1] Mr Miller was unsuccessful in the proceeding.
[1]Miller v Martin [2016] VCAT 854.

After the case was completed, Mr Schlicht contended that he was owed professional fees for acting on behalf of Mr Miller. Mr Schlicht had charged a total of $93,500, of which he received approximately $56,800, leaving on his case, $36,250 outstanding. He sued both Vasilaras & Co and Mr Miller in the Magistrates’ Court seeking to recover the outstanding fees.

In a statement of claim, appended to his complaint, Mr Schlicht alleged that on or about 24 February 2015, Vasilaras & Co had retained him to act on behalf of Mr Miller in relation to the VCAT proceeding. In a paragraph, to which Mr Miller drew attention in the present application, Mr Schlicht alleged:

Between 24 February 2015 and 15 April 2016 pursuant to Section 180(1)(c) of the [Legal Profession Uniform Law (Victoria)]^[[2]] the Plaintiff and the Defendants entered into a number of costs agreements within the meaning of the Act in relation to the work and/or the legal services carried out or to be carried out by the Plaintiff pursuant to the retainer (“the costs agreements”).

[2]Legal Profession Uniform Law Application Act 2014 (Vic) s 4, sch 1 referred to as ‘Legal Profession Uniform Law (Victoria)’.

By way of particulars to that allegation, Mr Schlicht said the costs agreements were in writing and were constituted by the ‘Backsheet’ provided by Vasilaras & Co when it briefed him.

Mr Schlicht pleaded that under the costs agreements he would charge $440 per hour,…

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 Miller v Schlicht

Details

AGLC: Miller v Schlicht [2021] VSCA 268
Case: [2021] VSCA 268
Decision Date: 23 September 2021

CaseChat Overview and Summary

In Miller v Schlicht, the appellant, Miller, sought to appeal a decision made by the Magistrates' Court. The central issue was whether the court below erred in determining that Miller had not identified any errors of law in the notice of appeal. This was compounded by the fact that Miller did not tender the evidence from the trial into evidence, which further complicated the identification of any alleged errors of law. The court was required to decide whether these circumstances amounted to an error of law on the part of the lower court.

The court considered the legal framework under which the appeal was brought, notably section 109 of the Magistrates’ Court Act 1989, which outlines the conditions for an appeal on a question of law. The court held that in order for an appeal to be valid, the appellant must demonstrate that there was an error of law in the decision of the lower court. Given that Miller failed to tender the evidence of the trial and did not identify any specific errors of law, the court found that Miller had not met the threshold for establishing an error of law. Consequently, the court determined that the lower court had not erred in dismissing the appeal.

As a result of the findings, the court dismissed the appeal. The court emphasised that without the evidence of the trial being tendered and without any specific identification of errors of law, it was not possible to ascertain whether the lower court had indeed erred. The court's decision was thus grounded in the procedural requirements outlined in the relevant statute, and it was concluded that the appeal did not meet the necessary criteria for success.

Orders