Miller v Schlicht
[2021] VSCA 268
•23 September 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2021 0046
| JAMES EDWARD MILLER | Applicant |
| v | |
| ANTHONY THEODORE SCHLICHT | Respondent |
---
| 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) |
---
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.
---
| 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, and $4,400 per day. He alleged that between 24 February 2015 and 16 April 2016, he had carried out work as instructed and requested by the defendants, rendered bills of costs, and that $36,250 remained outstanding. He alleged that no request for an itemised bill of costs had been given to him and that no application for assessment had been made. The complaint was accompanied by an overarching obligations certificate[3] and a proper basis certificate.[4]
[3]Civil Procedure Act 2010 s 41.
[4]Civil Procedure Act 2010 s 42.
We note that the judge had before him a copy of the complaint with certain handwritten amendments. The amendments comprise the addition of the following:
16.Alternatively, the plaintiff claims the sum $36,250 pursuant to s 3.4.19 of the Legal Profession Act 2004 (Vic).
17.Alternatively, the plaintiff claims the sum of $36,250 upon a quantum meruit.
Mr Miller filed a notice of defence on 31 July 2017, an amended notice of defence on 17 August 2017, and a ‘further amended defence’ on 12 February 2019. In his further amended defence, Mr Miller denied that he owed Mr Schlicht the amount sought on the following bases:
(a) Mr Schlicht had not produced any of the costs agreements entered into with him;
(b) an appeal on the jurisdiction of VCAT was ongoing; and
(c) that on 15 or 16 February 2016, it was agreed between Mr Miller and Mr Schlicht that:
(i) the remaining fees would be capped at $20,000;
(ii) $10,000 would be invoiced immediately, with another invoice following a ‘limited hearing’ in VCAT; and
(iii) that Mr Schlicht would raise certain issues in VCAT and limit his cross examination.
(d) that in breach of this agreement, Mr Schlicht did not limit his questioning, ‘failed to seek a miscarriage of justice’, and ran the hearing for six days.
The proceeding as against Vasilaras & Co resolved with a consent order, made on 16 July 2019, dismissing the proceeding against the solicitors with no order as to costs. The proceeding against Mr Miller continued.
The Magistrates’ Court proceeding was heard over three days in August 2019. The following summary taken from the primary judge, sets out the magistrate’s reasons:
(e) The magistrate recounted that two witnesses gave evidence on behalf of Mr Schlicht: Mr Schlicht himself and Mr Pinto, a partner with Vasilaras & Co. Mr Miller also gave evidence.
(f) The magistrate referred to Mr Schlicht’s claim for payment of $36,250, being the balance of fees owing, as being set out in a statement from Mr Schlicht’s clerk dated 14 August 2019, which was an exhibit in the proceeding. The statement showed that Mr Schlicht rendered a total of $93,050 in fees, with an amount of approximately $56,800 being paid. The magistrate was satisfied that the statement from Mr Schlicht’s clerk was accurate.
(g) On the basis of certain email communications and conversations between Mr Miller and Mr Schlicht, the magistrate found that there was a ‘direct relationship’ and ‘direct agreement’ between them.
(h) The magistrate was satisfied that there was appropriate cost disclosure of Mr Schlicht’s fees and identified Mr Schlicht’s agreed daily fee.
(i) The magistrate stated that Mr Miller resisted Mr Schlicht’s claim for payment of his outstanding fees, mainly on the basis there was not an agreement, and secondly, that counsel should have made an application to strike out a witness statement, thereby reducing the length of the VCAT hearing.
(j) The first issue was referred to by the magistrate as the ‘fixed fee or costs cap argument’. In relation to that issue, the transcript of the magistrate’s reads as follows:
Mr Miller essentially asserts that if he paid $20,000, $10,000 immediately on or about 25/01 and another $10,000 after the hearing than that would be the end of the liability that he had to the plaintiff that is contested by the plaintiff. I find that as a question of fact that after looking at all of the evidence and submissions, that Exhibit P8 accurately reflects what was discussed between plaintiff and Miller. I also note, looking at Exhibit P7, two payments were made by Miller of approximately $20,000 (indistinct) the commencement of the VCAT hearing. I also note that Miller did not challenge the context of Exhibit P8 until the filing of his second amended defence, nor after the last of the plaintiff’s clerk’s (indistinct words) to Miller.[5]
[5]Errors in the transcription of the magistrate’s reasons or errors in the applicant’s submissions have, where quoted, not been corrected and are as in the original.
(k) The second issue was that ‘at the VCAT hearing where a witness gave evidence, that being a Mr [Brabham], the plaintiff should have either acted on Mr Miller’s instructions, or alternatively not proceeded with the hearing, but made an immediate application for summary dismissal and/or have the proceeding struck out by an order of the President of VCAT’. The magistrate noted that it was accepted by both parties that Mr Brabham’s[6] witness statement was inaccurate, in particular where it made reference to certain share transactions which were the central issue in the VCAT proceeding. The magistrate continued:
[6]It was not controversial that the reference in the magistrate’s reasons to ‘Mr Braddiman’ was in error and that those references were in fact to Mr Brabham who gave evidence in the VCAT proceeding.
However, I do not accept that Mr Miller gave any instructions to make any such applications to the President of VCAT, or for summary dismissal, or alternatively if instructions were given, then the plaintiff should have proceeded to do so in the event.
(l) The magistrate referred to Mr Schlicht and Mr Pinto as having denied that Mr Miller gave any such instructions. The magistrate also referred to Mr Miller as being ‘well content with the running of the case’ by Mr Schlicht when Mr Brabham gave evidence and that he only agitated this defence well after being pressed for payment for outstanding fees. The magistrate also stated that he seriously doubted the prudence of seeking to strike out or stay the VCAT proceeding for the reasons given by Mr Schlicht in his evidence.
(m) The magistrate then referred to the principle of advocate’s immunity. He stated that he could ‘find no fault on the part of [Mr Schlicht] in the way that the case was run by him, but even if I did, which I do not, the immunity in my view would apply’.
(n) The magistrate found for Mr Schlicht on the amount claimed ‘on the balance of probabilities, after hearing and considering all of the evidence and the submissions by both parties’.[7]
[7]Miller v Schlicht [2021] VSC 98, [16] (Moore J) (‘Reasons’).
In the result, the magistrate gave judgment on the claim in favour of Mr Schlicht.
Appeal to the Supreme Court
From the order of the magistrate, Mr Miller appealed to the Supreme Court under s 109 of the Magistrates’ Court Act1989. An appeal under s 109 is an appeal on a question of law.[8]
[8]Magistrates’ Court Act 1989 s 109(1).
In his notice of appeal to the Trial Division, Mr Miller set out 13 questions of law, and grounds of appeal that corresponded to those questions. Those questions are set out in full in the reasons of the judge.[9] It is not necessary to set them out here. Each of them starts with the words, ‘Did Mr Schlicht err in law’ and then follows with a complaint about Mr Schlicht’s conduct. Plainly, that semantic device is not sufficient to identify a question of law. Further, any question of law has to arise from the decision of the magistrate, and the issue is whether the magistrate, not a party, made an error of law.
[9]Reasons [19].
Putting those issues to one side, the proposed questions, and their cognate grounds of appeal, can be thematically grouped as follows:
(o) Whether Mr Schlicht and Mr Miller had agreed to cap the fees. In that respect, ground 1 contained the following:
1.3 On 22 January 2016 (in VCAT matter BP144/2015), Mr Schlicht wrote to Nelson Pinto (Vasilaras & Co), in regard to a meeting on 21 January 2016, which included the Appellants revised Witness Statement in Reply, which included newspaper Mining Share Listings, for Buddha Gold Mines (“BGM”) shares and options, including the first day of trading, 6 November 1980, to the last day of trading 12 June 1982.
1.4 The 22 January 2016 letter, also listed the following “going forward” costs as follows:
– 17,000 be paid immediately (outstanding fees on the Appellants witness statement dated 22 December 2015)
– $8,800 – Cap fees to two days for the witness statement in reply
– $10,000 for preparation for Trial (“I would expect to be paid a further $10k for this preparation and the trial itself”)
– $10,000 for Trial itself
– Total $45,800
1.5 By cheque number 1007, I paid $15,800, as agreed, which included $10,000 for preparation. By cheque number 1008, I paid the $10,000, being the agreed amount for trial.
1.6 On 11 February 2019, I provided a Further Amended Defence, which at paragraph 25 reads:
‘In breach of our agreement, Mr Schlicht invoiced another $56,250 rather than the $20,000 as agreed, and now seeks $36,250 plus interest.’
(p) Whether Mr Schlicht had failed to act properly or reasonably in the VCAT proceeding by:
(i) diverting from the applicant’s points of claim;[10]
[10]Questions 2 and 3.
(ii) failing to address the falsity of the respondents’ case or pursue admissions;[11]
[11]Questions 4 and 5.
(iii) permitting the respondents to adduce certain evidence;[12]
[12]Questions 6 and 7.
(iv) failing to correct false and misleading information or evidence adduced by the respondents;[13]
[13]Questions 8 and 10.
(v) not properly addressing the Tribunal about a loan on the property in dispute or presenting s 234C of the Property Law Act1958 in relation to jurisdiction;[14]
[14]Questions 9 and 11.
(vi) allowing the Tribunal to draw an inference by not recalling Mr Miller to give evidence;[15] and
(vii) failing to give reasons in respect of the applicant’s claim to the property on the basis of a constructive trust.[16]
[15]Question 12.
[16]Question 13.
The judge’s reasons
After setting out some matters of background and Mr Miller’s questions of law, the judge addressed the principles that apply to an appeal on a question of law under s 109 of the Magistrates’ Court Act. In that respect, the judge noted that a question of law is the subject matter of the proceeding and an appellant must show an error of law on the part of the magistrate. His Honour observed the clear and essential distinction between an error of law and an error of fact, stating that ordinarily, a determination of fact will not give rise to an error of law, ‘unless it is shown that the fact-finding tribunal arrived at a finding that was simply not open to it’.[17]
[17]Reasons [22] citing Ericsson (Australia) Pty Ltd v Popovski (2000) 1 VR 260, 265 [14].
Based on those principles, which are not in doubt, the judge said that the appeal must fail for three reasons:
(q) Mr Miller had failed to identify any error of law on the part of the magistrate in relation to the final order;
(r) Mr Miller had not tendered into evidence in the Supreme Court a transcript or record of the evidence before the magistrate nor had he proven the documents that were in evidence in the Magistrates’ Court. In the absence of that material, Mr Miller was unable to show any findings of fact that were not open to the magistrate;[18] and
(s) none of the grounds had merit.
[18]Nikolic v Schultz (Unreported, Supreme Court of Victoria, Phillips J, 22 October 1991); Indevelco Pty Ltd v Betts [2002] VSC 537, [37]-[39] (Williams J).
Notwithstanding that the proceeding failed at the threshold for the first two reasons mentioned, the judge addressed the individual questions of law and grounds and found that none of them were established.
In relation to ground 1, which concerned the allegation that the fees were capped, the judge noted that the magistrate had rejected that contention. In the absence of the evidence before the magistrate, Mr Miller was not able to impugn that finding.
In relation to grounds 2 to 13, the judge held that:
(t) there was no evidence that all of the complaints comprehended by the grounds were made to the magistrate and only the subject matter of grounds 6, 8 and 10 appeared in the magistrate’s reasons;
(u) the complaints comprehended by grounds 6, 8 and 10 were rejected by the magistrate and in the absence of knowing the material which was before the magistrate, it was impossible to conclude that this finding was not open, such that any such error was an error of law; and
(v) even if any of the complaints underpinning grounds 2 to13 were established, the judge found no error in the magistrate’s conclusion that the principle of advocate’s immunity would apply. Any of the alleged failures would not relieve Mr Miller from the obligation to pay Mr Schlicht the amount of his unpaid fees as ordered below, on the basis that Mr Miller in effect asserted an offset based on negligence.
The judge then addressed, and rejected, a miscellany of further complaints by Mr Miller. They were: the amended statement of claim was not initialled; a fresh overarching obligations certificate and proper basis certificate, or an affidavit explaining the amendments, was not provided in support of the amended statement of claim; the amended statement of claim was misleading because it listed Vasilaras & Co as a party when the firm was no longer an active party; and the settlement should have included the claim against Mr Miller. Each of these matters was considered and rejected by the judge.
Finally, the judge considered a submission of Mr Miller that he was not given a cost agreement, trust ledger or record, or invoices indicating that he owed money to Mr Schlicht. Mr Miller claimed that one of his legal representatives was obliged to provide him with these documents under the Legal Profession Uniform Law (Victoria). The judge rejected the submission because the magistrate found that ‘there was an appropriate cost disclosure despite that matter being raised as a defence by Mr Miller on the basis of a letter from Vasilaras & Co to Mr Miller dated 3 August 2015 and exhibit P14.’[19] The judge noted that this exhibit was not identified by evidence or submissions before him. The judge concluded that Mr Miller had not shown that the magistrate’s finding was not open. The appeal was dismissed. Mr Miller applied for leave to appeal the judge’s order.
[19]Reasons [49].
Proposed grounds of appeal
Mr Miller’s notice of appeal and written case in this Court do not clearly set out his proposed grounds of appeal. In his written case, he identifies nine ‘primary facts’ which form the centrepiece of his written submissions. The nine primary facts are:
(w) the retainer between Mr Schlicht and Mr Miller was confined to the period 24 February 2015 and 22 January 2016 9 (’the first primary fact’);
(x) from 22 January 2016, there was a ‘direct relationship’ and/or ‘direct agreement’ between Mr Schlicht and Mr Miller (’the second primary fact’);
(y) on 13 May 2016, Mr Schlicht confirmed the agreement when he wrote to Mr Miller saying ‘that upon the payment of some of my fees, I was prepared to wait until the conclusion of the hearing for the balance to ensure you had legal representation for the whole trial’ (’the third primary fact’);
(z) the statement of account dated 14 August 2019, from Mr Schlicht’s clerk recorded only four payments: one from Vasilaras & Co of $11,000 on 15 January 2016 and three from J E and V Miller being $20,000 (19 January), $15,800 (19 February), and $10,000 (23 March) (’the fourth primary fact’);
(aa) the notice of hearing in the Magistrates’ Court listed the matter on 15 August 2019 and referred to the complaint against Vasilaras & Co but did not mention Mr Miller and ‘failed to disclose any path of reasoning for excluding’ Mr Miller from the hearing (’the fifth primary fact’);
(bb) on 16 July 2019, Mr Schlicht ‘dismissed the proceeding against [Vasilaras & Co]’ and a consent order was made to that effect (’the sixth primary fact’);
(cc) the Magistrates’ Court court book that was filed in the appeal, had been relied on by Mr Miller in the Magistrates’ Court (’the seventh primary fact’);
(dd) Mr Miller was denied natural justice in the Magistrates’ Court hearing on 15 August 2019 because Mr Schlicht relied on an undated Amended Complaint/Statement of Claim that had not been served, and Mr Miller was not provided with 21 days to provide a notice of defence (’the eighth primary fact’); and
(ee) Mr Miller was denied natural justice in the Magistrates’ Court hearing on 15 August 2019 because the hearing scheduled for that day was the proceeding against Vasilaras & Co and not the complaint against Mr Miller (’the ninth primary fact’).
Mr Miller submits that the judge erred by failing to find the facts alleged in these paragraphs.
In this Court, Mr Miller focused his oral submissions on his argument that the retainer with Mr Schlicht ended on 22 January 2016 and thereafter no agreement existed or, if it did, the only agreement was one that capped the fees at $35,800 and that these had been paid. Further, he submitted, the further (and direct) agreement or arrangement between Mr Schlicht and Mr Miller after 22 January 2016 was unenforceable because Mr Schlicht had not complied with his disclosure obligations, including giving an estimate of legal costs under the Legal Profession Uniform Law (Victoria).
Mr Miller referred to the defence filed in the Magistrates’ Court by Vasilaras & Co, in which that firm had pleaded that on a date after 22 January 2016, Mr Schlicht had entered into an agreement with Mr Miller for the payment of his fees, which the defence called ‘the True Retainer’. Mr Miller also referred to headings in the court book filed in the Trial Division, which referred to ‘Part A – “9 June 2017 Complaint, Statement of Claim, The Retainer” – 24 February 2015 to 22 January 2016’ and ‘Part B “Going Forward Agreement/the True Retainer” – 22 February 2016 to 18 April 2016’.
In a further written submission dated 25 August 2021, which was provided to the Court with accompanying documents, Mr Miller submitted that Mr Schlicht had sued on a single retainer covering the period 24 February 2015 to 16 April 2016 but that that retainer had come to an end on 22 January 2016.[20] He said that he had received a costs estimate from Vasilaras & Co on 3 August 2015, by which time Mr Schlicht had charged $4,730. The costs estimate predicted further costs for Mr Schlicht ranging from $22,440 for a three-day hearing to $40,700 for a five-day hearing, which included preparation of witness statements ranging between $2,200 to $4,400.
[20]These documents were provided after the appeal book index was settled by the registrar.
Mr Miller referred to three emails which were contained in the Magistrates’ Court court book. It is convenient to set them out.
First, on 22 January Mr Schlicht sent an email to his instructing solicitor at Vasilaras & Co, Nelson Pinto:
Thank you for your time yesterday.
I am genuinely sympathetic to Jim’s position but we need to keep things as commercial as possible. Going forward I would propose that the outstanding fee of approx. $17,000 be paid immediately ie today. I will cap my fees for the reply to 2 days which is far less than I have already spent on it including our half day conference. This needs to be paid upon sending of this account.
I will also cap my further preparation to only 2 days for the trial even though I will spend much further time preparing.
I would expect to be paid a further $10k for this preparation and the trial itself but am prepared to wait for payment of the rest of my fees until after the conclusion of the hearing. I am not sure how long the trial will go but if it is 5 days then there will be a reasonable amount of fees still outstanding which I am prepared to wait for. However Jim needs to pay the outstanding fee immediately and the fee for the Reply witness statement when delivered.
I feel this is genuinely trying to accommodate Jim’s financial situation but there needs to be reciprocity. It is also, as you are aware, a clear departure from my normal terms of engagement.
On the same day, Mr Pinto wrote to Mr Miller saying:
I have discussed the recent issues with Mr Schilicht over the past few days and I can summaries his position as follows:·
l. He is genuinely sympathetic to your position.
2. The $17,000 (or so) invoice is already discounted from the actual time he has spent. The Invoice already includes trial and cross examination preparation.
3. Going forward he proposes:-
a. that the outstanding fee of (approx.) $17,000 be paid immediately.
b. He will cap his fees for the Reply to 2 days which is far less than what he has already spent, including the conference. This will need to be paid upon sending of the account.
c. He will also cap his further preparation for the trial to only 2 days, even though he expects to be spending much further time preparing.
d. Upon payment of a further $10,000 he is prepared to wait for payment of the rest of his fees until after the conclusion of the hearing.
Have a think about this proposal and tell me if you are agreeable or whether you have a counter proposal.
On 25 January 2016, Mr Schlicht emailed Mr Miller directly:
Hi Jim,
I confirm our recent conversation and confirm that the following payments will be made by you in respect of my fees:
1. $20,000 immediately;
2. The balance of $15,800 by no later than 19 February 2016;
3. The balance after the completion of the hearing of the VCAT matter.
He also referred to a statement of account from Mr Schlicht’s clerk setting out the fees invoiced and the amounts received. It appears from that statement that fees were first rendered on 12 March 2015 for work done in February 2015 and the last invoice was rendered in April 2016. According to the statement, up until 28 January 2016 the fees were paid by Vasilaras & Co. Thereafter, it records fees were paid by cheque from J E and V Miller.
Analysis and conclusion
The magistrate found: there was a ‘direct agreement’ between Mr Schlicht and Mr Miller for the payment of fees; that there had been appropriate costs disclosure; that fees were agreed in the sum of $4,400 per day; and he rejected Mr Miller’s claim that there was an agreement to cap fees at $20,000.
Those findings involved mixed questions of fact and law. Mr Miller submitted to the judge that they involved error and he has repeated that submission in this Court.
As the judge correctly observed, in order to overturn the findings made by the magistrate as to the existence of the agreement, the adequacy of costs disclosure, and the rejection of the claim that there was an agreement to cap the fees, Mr Miller was required to establish the material that was before the magistrate. He did not do so.
Importantly, as the magistrate’s reasons record, the matter was heard over three days with Mr Schlicht, Mr Pinto and Mr Miller each giving evidence. Further, although a bundle of documents described as the court book in the Magistrates’ Court was before the judge, Mr Miller did not establish that these documents were admitted into evidence in the Magistrates’ Court. In the absence of evidence or agreement, there was no error in the judge declining to treat the court book as being in evidence before the magistrate. It is notable that the magistrate referred in his reasons, to exhibits P8, P12 and P6 as being a ‘direct exchange of emails between Mr Schlicht and Mr Miller’. The material before the judge did not identify these exhibits. Further, the fact that individual emails were marked as exhibits tends against an inference that the whole court book was admitted into evidence.
Unless Mr Miller proved what was before the magistrate, he could not establish that the findings made by the magistrate which he now impugns were not open to be made on the material.[21] For that reason, the appeal under s 109 of the Magistrates’ Court Act could not succeed on any of the grounds advanced.
[21]St Kilda City Council v Perplat Investments Pty Ltd (1990) 72 LGRA 378, 379 (Young CJ).
Even if it could be inferred that all of the documents in the court book and to which Mr Miller referred in argument were before the magistrate, that would not avail the applicant. First, the oral evidence would still be unknown. And the documents do not support Mr Miller’s case.
It is convenient to commence by noting some matters of common ground. First, in February 2015, Vasilaras & Co retained Mr Schlicht to act on Mr Miller’s behalf in an upcoming VCAT proceeding. Mr Schlicht provided legal services including by preparing and appearing for Mr Miller in VCAT, in a hearing that ran for seven days. Mr Schlicht had advised Mr Miller of his hourly and daily rate, and Mr Miller had paid some of the fees invoiced by Mr Schlicht on the basis of those rates. The court book contained ten backsheets in the VCAT matter in the name of Vasilaras & Co sent to Mr Schlicht, including one dated 16 February 2016, recording a brief to appear at the hearing to commence on 22 February 2016 with an estimate of five days.
In that context, the email exchanges of 22 January and 25 January set out above, are fatal to the applicant’s arguments. In his 22 January email, Mr Pinto advised Mr Miller that Mr Schlicht would cap his fees for the Reply (2 days) and preparation (2 days). No suggestion or offer was made that Mr Schlicht would cap his total fees or would not charge for his appearances at the hearing. Indeed, such an understanding would be inconsistent with the Mr Pinto email, in which it was said that Mr Schlicht would be ‘prepared to wait for payment of the rest of his fees until after the conclusion of the hearing.’ Mr Schlicht’s email of 25 January confirmed discussions with Mr Miller, that $20,000 would be paid immediately, $15,800 by no later than 19 February, and the balance after the completion of the hearing.
There is no room in the documents to conclude that Mr Schlicht had capped his fees in the manner contended for by Mr Miller. They are flatly inconsistent with that submission.
For similar reasons, there is no proper basis to impugn the magistrate’s finding that there had been proper costs disclosure. As the judge found, Mr Miller failed to show that the finding of the magistrate was not open. It must fail for the following additional reasons.
First, Mr Miller’s notice of appeal from the Magistrates’ Court under s 109 of the Magistrates’ Court Act did not raise the adequacy of costs disclosure as an issue. Nor did he raise it in his proposed notice of appeal in this Court.
Second, the magistrate said that there had been disclosure of Mr Schlicht’s fees in a letter from Vasilaras & Co of 3 August 2015. A letter of that date is in the court book and provided an estimate of the fees payable to Mr Schlicht for various stages of the proceeding, including a hearing of an estimated duration of three to five days. It was open to the magistrate to find that there had been proper disclosure.
Third, Mr Miller’s argument proceeds from a misconception. It was open to the magistrate to be satisfied that there was an ongoing retainer between Mr Schlicht and Vasilaras & Co from February 2015 to April 2016, but that from 22 January 2016 Mr Miller had agreed with Mr Schlicht to be directly responsible for the payment of Mr Schlicht’s fees. Those two things are not mutually inconsistent, incompatible or uncommon. On the basis it was open to the magistrate to determine that there was a continuing retainer with Vasilaras & Co, Mr Schlicht’s disclosure obligations were governed by s 175 of the Legal Profession Uniform Law (Victoria) and there was no evidence that they were not complied with.[22]
[22]Petselis v Tatarka (2019) 57 VR 375 (Keogh J).
It follows that the central contentions advance by Mr Miller must be rejected. There was no error on the part of the judge in dismissing the appeal.
Finally, there was no error by the judge in relation to any of the ‘nine primary facts’ relied on by Mr Miller.
The first four facts relate to the question of whether the retainer had come to an end on 22 January 2016. What we have said above deals with this matter.
The fifth fact relates to whether the notice of hearing given to Mr Miller in the Magistrates’ Court was defective, in that, it referred to Vasilaras & Co but not him. The hearing proceeded before the magistrate over three days and Mr Miller gave evidence. There is no basis to contend that Mr Miller did not have adequate notice of the hearing or was prejudiced by the form in which the notice was given. The form of notice did not affect the orders made by the magistrate. It does not give rise to any question or error of law in relation to the orders of the magistrate. Similarly, the dismissal of the proceeding as against Vasilaras & Co, which is the subject matter of the sixth fact, is immaterial to the orders made against Mr Miller. The magistrate was satisfied of an agreement between Mr Miller and Mr Schlicht in relation to the payment for services provided by the latter.
In this respect, the judge was correct when he said:
It is trite that parties to a dispute can settle the matter themselves on terms that they find mutually agreeable. Mr Schlicht was not obliged to settle the proceeding with Mr Miller simply because he settled with Vasilaras & Co. That Mr Schlicht and Vasilaras & Co settled their dispute did not suggest that Mr Schlicht’s claim against Mr Miller was false or improper. The statement of claim and the amended statement of claim did not make any distinction between the liability of the defendants. Moreover, that Mr Miller misunderstood the meaning of the listing in the Magistrates’ Court does not, in and of itself, provide a basis to set aside the Magistrate’s decision. There is no evidence that Mr Miller sought an adjournment or objected to the trial proceeding on that basis that he was caught by surprise and not ready to run his case.[23]
[23]Reasons [48].
The seventh fact concerns the Magistrates’ Court court book. The judge’s finding that Mr Miller had not proved the material before the magistrate was open to him. There is no basis for this Court to overturn it. In any event, for the reasons we have given above, the documents in the Magistrates’ Court court book do not help Mr Miller in his central contentions and are irrelevant to his other complaints.
The eighth and ninth facts can be dealt with together. An allegation of denial of procedural fairness was not raised clearly before the judge. For that reason it cannot be run in this Court. In any event, there is no evidentiary basis to conclude that Mr Miller was denied procedural fairness in the Magistrates’ Court.
Conclusion
The application for leave to appeal must be refused.
---
0
2
0