Miller v Schlicht
[2021] VSC 98
•9 March 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2019 04587
| JAMES EDWARD MILLER | Appellant |
| v | |
| ANTHONY THEORDORE SCHLICHT | Respondent |
---
JUDGE: | MOORE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 October 2020 |
DATE OF JUDGMENT: | 9 March 2021 |
CASE MAY BE CITED AS: | Miller v Schlicht |
MEDIUM NEUTRAL CITATION: | [2021] VSC 98 |
---
APPEALS – Appeal from Magistrates’ Court – Whether Magistrate erred in law – Where appellant did not identify any errors of law in notice of appeal – Jurisdiction not enlivened – Where appellant did not tender into evidence transcript of trial – Court cannot be satisfied that findings of fact not open – No error of law established – Appeal dismissed – Magistrates’ Court Act 1989, s 109 – Supreme Court (General Civil Procedure) Rules 2015, r 58.09 – Ericsson (Australia) Pty Ltd v Popovski (2000) 1 VR 260, applied – Wong v Carter [2000] VSCA 53, applied – Indevelco Pty Ltd v Betts [2002] VSC 537, followed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Appellant | In person | |
| For the Respondent | S Buchanan | Simon Nixon & Associates |
HIS HONOUR:
This is an appeal brought by James Miller under s 109 of the Magistrates’ Court Act 1989 (the Act) from an order made by the Magistrates’ Court on 9 September 2019 requiring him to pay Anthony Schlicht $36,250 plus interest and costs. Mr Miller represented himself before the Magistrates’ Court and in the hearing of this appeal.
Mr Schlicht is a barrister at the Victorian Bar. He represented Mr Miller in a proceeding brought by Mr Miller in the Victorian Civil and Administrative Tribunal which was heard over seven days in 2016 (the VCAT proceeding).[1] Mr Miller was unsuccessful in that proceeding.
[1]Proceeding BP244/2015.
Mr Schlicht rendered invoices totalling $93,050 for work undertaken by him in relation to the VCAT proceeding. Of this sum, $56,800 was paid, leaving a balance of $36,250. Mr Schlicht successfully sought recovery of this amount in the proceeding in the Magistrates’ Court which resulted in the orders the subject of this appeal (the Magistrates’ Court proceeding).
Mr Miller was the second defendant in the Magistrates’ Court proceeding; the first defendant was Vasilaras & Co Pty Ltd, the firm of solicitors which briefed Mr Schlicht to appear on behalf of Mr Miller in the VCAT proceeding.
On 16 July 2019, Mr Schlicht and Vasilaras & Co signed a minute of consent providing for an order dismissing the proceeding brought by Mr Schlicht against Vasilaras & Co.
Mr Schlicht’s claim against Mr Miller in respect of his unpaid fees was heard in the Magistrates’ Court over three days in August 2019. As I have noted, an order in Mr Schlicht’s favour was made on 9 September 2019. On the same day, the Magistrate delivered oral reasons for judgment.
The VCAT proceeding
Before considering the Magistrate’s reasons, it is necessary to first say something about the VCAT proceeding as it is the backdrop to the present appeal. The general nature of and background to the controversy which was the subject of the VCAT proceeding was summarised as follows by the Court of Appeal in the second of two appeals brought by Mr Miller following the dismissal of his claims in the VCAT proceeding:[2]
About 40 years ago, James Miller, Ian Martin and Ross Brabham were working together in the Finance Department of GJ Coles & Co Limited and then Coles Myer Limited. As General Manager, Miller was the senior employee. The three men and their wives became good friends. Martin and Brabham say that they formed a partnership with Miller in the early 1980s, for the purpose of trading in shares for profit and using the profits to purchase ‘quality of life investments’ or ‘lifestyle assets’ for their collective benefit in equal shares. Although Miller acknowledged the existence of the partnership at various times over the years, he now firmly denies there was ever a partnership. Following a seven day hearing in the Victorian Civil and Administrative Tribunal (‘VCAT’ or ‘the Tribunal’), the Tribunal found that there had been a partnership (‘partnership finding’) and that it had acquired various lifestyle assets in the names of the three men including a beach house at Moggs Creek, Victoria.
The beach house was purchased in late 1986 and the purchase was settled in early 1987. It was registered in the names of the three men as tenants-in-common in equal shares.
[2]Miller v Martin [2020] VSCA 4, [1]–[2], omitting citations.
The Court of Appeal observed that Mr Miller’s case at VCAT was straight-forward:[3]
He alleged that he had paid all of the purchase price for the beach house, and had since paid all outgoings, maintenance and other expenses in respect of it. On this basis, he made a primary claim for a declaration that the other co-owners held their interests in the property on a resulting or constructive trust for him (the ‘trust claims’). Alternatively, he made claims under ss 228 and 233 of the Property Law Act 1958, seeking an order that the beach house be sold and that all net sale proceeds be paid to him (the ‘statutory claims’).
[3]Ibid [8].
On 3 June 2016, VCAT delivered extensive reasons comprising 206 paragraphs. The Court of Appeal, which observed that the Tribunal member ‘clearly gave full consideration to all the evidence’,[4] summarised the Tribunal’s conclusions and the subsequent appeal brought by Mr Miller to the Trial Division as follows:[5]
… The senior Tribunal member held that there had been a partnership as the respondents alleged, rejected the existence of the 1986 agreement alleged by Miller, and held that the beach house had been purchased from money in the partnership bank account which ‘was regarded by Mr Miller and the other two partners as belonging to the three of them’. The senior member concluded that the amount of $282,820 paid by Miller into the partnership bank account and used to purchase the beach house and another property was, more probably than not, ‘paid in with the intention that it would belong to three partners …[and] that it was partnership money as the respondents contended’. On this basis, the Tribunal dismissed Miller’s trust claims. However, it neglected to consider his alternative statutory claims.
Miller sought leave to appeal to the Trial Division of this Court under s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’). The parties agreed that leave to appeal should be granted and the appeal allowed in part, so that the Trial Division could remit the statutory claims back to VCAT to be determined. The Trial Division dismissed Miller’s appeal from VCAT’s order dismissing his trust claims.
[4]Ibid [34].
[5]Ibid [11]–[12].
The Court of Appeal dismissed Mr Miller’s appeal, observing that ‘there was more than enough evidence to justify the making of the partnership finding’.[6]
[6]Ibid [96].
The Magistrates’ Court proceeding
Mr Schlicht filed his complaint and statement of claim in the Magistrates’ Court proceeding on 9 June 2017. He relevantly alleged that:
(a) on or about 24 February 2015, he was retained by Vasilaras & Co to act for Mr Miller, was provided with a brief and/or briefs to act as a legal practitioner on behalf of Mr Miller, and was instructed and requested to carry out certain work and provide certain legal services as a legal practitioner in relation to the proceeding (the retainer);
(b) between 24 February 2015 and 15 April 2016, a number of costs agreements within the meaning of the Legal Profession Uniform Law (Victoria) were entered into between Mr Schlicht, Vasilaras & Co and Mr Miller in relation to the work to be carried out by Mr Schlicht pursuant to the retainer;
(c) he carried out the work and provided legal services between 24 February 2016 and 16 April 2016 pursuant to the retainer;
(d) he was accordingly entitled to recover from Vasilaras & Co and Mr Miller the outstanding legal costs;
(e) further or in the alternative, Vasilaras & Co and Mr Miller were indebted to him in the amount of the unpaid invoices; and
(f) he had suffered loss and damage of $36,250 by reason of the breach of the retainer by Vasilaras & Co and Mr Miller.
Mr Miller’s amended defence dated 11 February 2019 made extensive references to his allegations made in and the conduct of the VCAT proceeding. In summary, as is presently relevant, Mr Miller denied that he owed Mr Schlicht the amount claimed and that:
(a) on 15 and 16 February 2016, Mr Schlicht agreed to cap his legal fees to $20,000 ‘going forward’ because his conduct of the VCAT proceeding would be limited to establishing the ‘falsity’ of the evidence supporting the respondent’s case;
(b) Mr Schlicht would issue an invoice for $10,000 immediately, with the remaining invoice for $10,000 to be issued following the hearing of the VCAT proceeding; and
(c) Mr Schlicht breached the above agreement by issuing an invoice for more than $20,000 in circumstances where Mr Schlicht:
(i) ‘failed to limit his questioning, ran the hearing for six days, and allowed his client to be slandered in the worst possible ways’;
(ii) ‘failed to seek a miscarriage of justice’ in that the solicitors advised certain of the respondents ‘not to change their fictitious witness statements, swear to them’ and for them to be ‘placed into evidence deceiving the Tribunal, in breach of our agreement’;
(iii) ‘betrayed’ Mr Miller and the Tribunal ‘by not exposing the professional misconduct of the respondents’ legal practitioners, and by ‘allowing the respondents to slander’ him; and
(iv) failed to recall Mr Miller as a witness.
An appellant in an appeal under s 109 of the Magistrates’ Court Act 1989 would ordinarily include in his or her material filed in support of an appeal the transcript of the hearing at first instance, or solicitor’s notes of the hearing. Mr Miller has, however, elected not to proceed in this way.[7] The transcript of the hearing before the Magistrate was not tendered into evidence before me, nor any documents which may have been received as evidence by the Magistrate. This has significant implications for Mr Miller’s appeal as I will explain.
[7]On 27 November 2019, the Court made interlocutory orders including that Mr Miller file and serve any further affidavits, including an affidavit exhibiting the transcript of any relevant hearing, upon which he intended to rely on or before 27 March 2020. The time for compliance with that order was later extended to 6 July 2020. On 27 July 2020, Mr Schlicht’s solicitors emailed Mr Miller referring to these orders and sought his advice as to when he intended to file and serve an affidavit exhibiting the transcript of the Magistrates’ Court hearing. In reply, Mr Miller stated, amongst other things, that he would not be filing any affidavit exhibiting the transcript of any hearing.
The Court Book used in this appeal included an item described as ‘Magistrate’s Court Proceeding No. H11616081 – “Magistrate’s Hearing ‘Court Book’” – Documents relied on by Plaintiff’ (the Magistrates’ Court Book). The Magistrates’ Court Book contained the pleadings and various documents pertaining to Mr Miller’s engagement of Mr Schlicht, including briefs to counsel, invoices, unsigned copies of costs agreements, ongoing costs disclosure statements, and correspondence between Mr Miller, his solicitors, and Mr Schlicht. It is, however, entirely unclear whether any or all of the contents of the Magistrates’ Court Book were in evidence before the Magistrate.
The hearing in the Magistrates’ Court proceeded on 15, 16 and 19 August 2019. The only evidence before me about what transpired at that hearing are the following matters deposed to by Mr Miller in an affidavit filed in the appeal:
(a) ‘The hearing set for 9:30 am 15 August 2019 for 15 minutes, corrected to one full day, was not listed in the Magistrates Court, with only [Mr Miller] attending the Court’.
(b) ‘The hearing which started at 2:00 pm was not in accordance with VGSO Procedural Fairness – The Hearing Rule, given the Appellant was a self-represented 73 year old type 2 diabetic pensioner, Vasilaras & Co was no longer a Defendant, but now a witness for the Respondent, Simon Nixon produced a 106 page Court Book, which opened with the Respondents statement (sic) of Claim “Costs Agreement” retainer and Vasilaras & Co Notice of Defence “The True Retainer”’. Mr Miller was not consulted about its contents, and the minute of consent between Mr Schlicht and Vasilaras & Co did not appear in it.
(c) ‘Following the conclusion of the hearing on 16 August 2019, the Appellant was not advised of the further hearing date. On 11 September 2019 the Appellant phoned the Magistrates Court Registry to find out the date of the next hearing in matter H11616081, only to be told that judgment was given on 9 September 2019’.
The Magistrate’s reasons
Some further understanding of the conduct of the proceeding before the Magistrate and the evidence which was adduced may be inferred from the Magistrate’s reasons for decision. In summary, the reasons were as follows:
(a) 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.
(b) 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.
(c) 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.
(d) The Magistrate was satisfied that there was appropriate cost disclosure of Mr Schlicht’s fees and identified Mr Schlicht’s agreed daily fee.
(e) The Magistrate stated that Mr Miller resisted Mr Schlicht’s claim for payment of his outstanding fees:
… mainly on the basis that there wasn’t an agreement to counsel’s fees for the contested hearing at VCAT and further, that his instructing counsel or alternatively counsel should have made an application, strike a witness statement of a Mr Braddiman, due to falsities in that statement, thereby reducing the length of the VCAT hearing.
(f) The first issue was referred to by the Magistrate as the ‘fixed fee or costs cap argument’. In relation to that issue, the Magistrate continued (my emphasis):
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 (sic) 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.
(g) The second issue was that ‘at the VCAT hearing where a witness gave evidence, that being a Mr Braddiman, 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[8] 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:
[8]It was not controversial that the reference in the Magistrates’ 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.
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 proceedings for the reasons given by Mr Schlicht in his evidence.
(h) 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’.
(i) 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’.
The appeal
The notice of appeal filed by Mr Miller purports to identify 13 questions of law.
None of these questions posited by Mr Miller refer, in terms, to the order made by the Magistrate, the Magistrates’ Court proceeding or to the Magistrate’s reasons for judgment. They are also erroneously cast as questions as to whether Mr Schlicht ‘erred in law’.
The questions identified by Mr Miller are as follows:
(1)Did Mr Schlicht err in law in departing from the ‘going forward’ costs agreement, when he absolutely knew as at 22 January 2016 that the allegations and the numbers used in the first and third respondents’ witness statements were false and misleading information and were meant to mislead and deceive the Tribunal?
(2)Did Mr Schlicht err in law in diverting from the appellant’s points of claim and Mr Schlicht’s reply to defence dated 22 July 2015, which are consistent with the respondents’ ‘summary of facts’ obtained by the appellant on 3 June 2019 in the Supreme Court of Victoria – Court of Appeal, which supports a resulting and constructive trust?
(3)Did Mr Schlicht err in law in diverting from the appellant’s points of claim and Mr Schlicht’s reply to defence dated 22 July 2015, when compared to the ‘summary of facts’ obtained by the appellant on 3 June 2019 in the Supreme Court of Victoria – Court of Appeal, which supports a position that the purchase and sale of Buddha Gold Mines shares was a minor transaction?
(4)Did Mr Schlicht err in law by not adequately addressing the falsity of a ‘commencement of partnership’ and ‘the origin of a partnership’, based on a $15,000 investment in Buddha Gold Mines, when no such transaction existed, when it was open to him to do so?
(5)Did Mr Schlicht err in law in failing to pursue the four admissions made by the first respondent that his solicitors told him not to change ‘his witness’ and ‘your story’, given that on 19 February 2019, the solicitors certified those admissions, and on 3 June 2019 provided the respondents’ ‘summary of facts’?
(6)Did Mr Schlicht err in law in permitting the third respondent and GE Law Services to place into evidence false and misleading witness statements that alleged Buddha Gold Mines shares were sold for $570,000, when it was reasonably open to Mr Schlicht to raise a s 136 argument, based on the documentary evidence?
(7)Did Mr Schlicht err in law in permitting the first respondent and GE Law Services to place into evidence the false and misleading witness statements of the first respondent that the Buddha Gold Mines shares were sold for $285,000, when it was reasonably open to Mr Schlicht to raise s 136 argument, based on the documentary evidence?
(8)Did Mr Schlicht err in law in not correcting the false and misleading information on an investment of $15,000 investment in Buddha Gold Mines was the ‘commencement of partnership’ and ‘the origin of the partnership’, when it was reasonably open to him to raise a s 136 argument?
(9)Did Mr Schlicht err in law in not properly addressing that the Tribunal considered the $150,000 paid for Moggs Creek to be a loan from the appellant?
(10)Did Mr Schlicht err in law by failing to correct the respondents’ evidence on the payment of $20,000 each to Martin and Brabham as being drawings from earnings from the joint bank account, when the joint bank account for the period 23 November 1987 to 28 March 1988 total drawings and fees were only $304.40, when the payments were loans from the appellant’s business New Kapital Investments, as part of a set of loans totalling $204,999.02?
(11)Did Mr Schlicht err in law in not presenting a s 234C of the Property Law Act 1958 in relation to Jurisdiction, against the respondents?
(12)Did Mr Schlicht err in law by allowing the Tribunal to draw an inference by not permitting the appellant to be recalled to give evidence to rebuke the evidence of the second respondent?
(13)Did Mr Schlicht err in law by failing to give reasons in respect of the appellant’s claim that the respondents held their respective interests in the Beach House for him on a constructive trust?
The notice of appeal contains 13 grounds of appeal extending over 17 pages. The grounds each appear to relate to the correspondingly numbered ‘question of law’ set out above. Again, none of the grounds refer to the order made by the Magistrate, the Magistrates’ Court proceeding or to the Magistrate’s reasons for judgment.
Legal principles – s 109 of the Act
An appeal from an order of the Magistrates Court may only be brought on a question of law.[9] As stated by Tadgell JA in Wong v Carter, ‘the existence of a question of law is not only a precondition to the right of appeal but also the subject of the appeal itself; and it follows that the appeal does not operate as a rehearing of the whole dispute or matter.’[10]
[9]Section 109(1) of the Magistrates’ Court Act 1989; Kuek v Phillips [2017] VSCA 322, [32]; Ericsson (Australia) Pty Ltd v Popovski (2001) VR 260, [14] (‘Ericsson’).
[10][2000] VSCA 53, [43].
In order to ground an entitlement to relief from this Court in an appeal under s 109 of the Act, an appellant must identify an error of law by the Magistrate.[11] In seeking to show error of law, it is not enough to persuade a judge on appeal that the Magistrate went wrong on a question of fact.[12] A decision merely on a question of fact cannot of itself justify the bringing of an appeal under s 109.[13] 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’.[14] As stated by Brooking JA in Ericsson (Australia) Pty Ltd v Popovski, in the case of an appellant who seeks to challenge a finding of fact by a Magistrate under s 109 of the Act, it is necessary for the appellant to satisfy the Court:[15]
… not only that the finding of the magistrate was wrong in the sense that the judge himself would have come to a different conclusion on the primary facts found by the magistrate, but also that the magistrate was constrained to make the finding which commended itself to the judge. It is a strong thing to reach such a conclusion in a case where the burden of proof lies on the appellant, who is therefore submitting not that an affirmative finding had no evidence to support it, but that the evidence was such as to necessitate an affirmative finding which was not made. It will be impossible to sustain this burden in cases where the refusal to make the finding sought may be grounded in a refusal, open to the tribunal, to accept part or parts of the evidence. …
[11]Fiorelli Properties Pty Ltd v Professional Fencemakers Pty Ltd & Anor [2011] VSC 661, [43] (Kaye J).
[12]Ericsson (n 9) 265 [14].
[13]Wong v Carter (n 10) [43].
[14]S v Crimes Compensation Tribunal [1998] 1 VR 83, 89–90.
[15]Ericsson (n 9) 265 [14].
Consideration
The appeal must be dismissed for the following reasons.
First, by reason of the features of the notice of appeal described in [18], Mr Miller has not identified any error of law which is involved in the final order made in the Magistrates’ Court proceeding. As such, an appeal to this Court is not authorised by the Magistrates' Court Act 1989;[16] this Court’s jurisdiction to hear the appeal is not enlivened.[17]
[16]Wong v Carter (n 10) [43].
[17]Zogiannis v Stevens [2012] VSC 264, [2]–[4] (Davies J).
Secondly, r 58.09 of the Supreme Court (General Civil Procedure) Rules 2015 required Mr Miller, within seven days of filing his notice of appeal, to file an affidavit stating the ‘acts, facts, matters and circumstances relating to’ the order under appeal and the grounds in the notice of appeal. By electing not to exhibit to his affidavit filed in the appeal any notes or record of the proceeding before the Magistrate (such as the transcript of the hearing), or any documents tendered into evidence (or identifying which of the documents in the Magistrates’ Court Book were received as evidence), Mr Miller failed to comply with this obligation. As I explain below, given the substance of the grounds raised by Mr Miller, materials of the type to which I have just referred would be essential to my task in considering the appeal.
In Nikolic v Schultz,[18] Phillips J (as he then was) considered an appeal under section 109 of the Act in which there was not in evidence before him certain statements and photographs which were before the Magistrate and which were relevant to the Magistrate’s decision the subject of the appeal. His Honour stated:[19]
In the absence of such material, which was before the Magistrate and which cannot be said to have been irrelevant to the findings now under challenge, I find it hard to see how the appellant can succeed in this Court in an argument that the material before the Magistrate was not sufficient to sustain his Worship's findings. It is surely important on such an appeal as this that all of the material before the Magistrate, the sufficiency of which this Court is being asked to consider, be put before this Court. That seems to me to be self-evident; …. In this case, it affords another reason why the appeal must fail.
The same approach was applied by Williams J in Indevelco Pty Ltd v Betts.[20]
[18](Supreme Court of Victoria, Phillips J, 22 October 1991).
[19]Nikolic v Schultz (n 18), 11.
[20][2002] VSC 537, [37]–[39].
Analogously here, the only evidence before me about what occurred at the hearing below are the three matters deposed to by Mr Miller referred to in [15] above. The relevance and significance of those particular complaints is obscure as they were not addressed in Mr Miller’s written or oral submissions and they do not have any apparent connection with Mr Miller’s grounds of appeal. Further, as to the first of those complaints concerning the hearing being listed for 15 minutes but then proceeding for a full day, Mr Miller has not submitted that he was not prepared to run his case that day (which in fact went for three days), or that he raised any objection in doing so with the Magistrate. There is likewise no elaboration or explanation in Mr Miller’s grounds of appeal or in his submissions concerning the second and third complaints.
The appeal must fail in light of the paucity of material before me about the hearing before the Magistrate. I am unable to be satisfied that there is any error of law in the decision of the Magistrate, having regard to the reasons and the matters deposed to by Mr Miller referred to above.
Thirdly and in any event, noting that Mr Miller is a self-represented litigant, this conclusion also follows if Mr Miller’s notice of appeal is construed beneficially by reference to his written and oral submissions and putting to one side his failure to comply with r 58.09.[21]
[21]For further examples, see Whelan JA’s observations in Cosmopolitan Hotel (Vic) Pty Ltd v Crown Melbourne Ltd [2014] VSCA 353, [164]–[166] in relation to the Court’s supervisory jurisdiction under s 148 of the VCAT Act.
Ground 1
Ground 1 advanced by Mr Miller was as follows:
Ground 1 – “Going Forward” Costs
1. On 20 January 2016, the Appellant provided to Nelson Pinto of Vasilaras & Co, the Appellant’s revised witness statement in reply, which included Mining Share listings for Buddha Gold Mines shares and options and showed on 6 November 1980, the first day of trading for Buddha Gold Mines shares, shares were sold @$1.10 and options @90c, which confirmed the Appellant sale of 3,000 Buddha Gold Mines shares at @$1.10 and 2,000 options @85c, recorded in the Investment Portfolio, dated 7 November 1980, and the calculated profit thereto based on the purchase of Buddha Gold Mine shares @50c and Buddha Gold Mine options @5c.
1.1 The discovery of the Minding Share Listing for 6 November 1980, confirmed that the Respondents allegation that the Appellant had purchased 300,000 Buddha Gold Mines shares @5c for $15,000 ($5,000 each) prior to listing on 6 November 1980, was false and misleading information (VCAT Act 1998, s 136), because the documentary evidence was that shares were issued @50c, not @5c as alleged.
1.2 The discovery of the Mining Share Listing for the period 1 January 1982 to 12 July 1982 showing a high of 50c and a low of 10c for Buddha Gold Mines shares, showed the falsity of an alleged sale, according to the First Respondent, made by the Appellant of 300,000 Buddha Gold Mines shares, at an alleged price of $1.90 in early 1982, and an alleged proceeds of sale of $570,000 received by the Appellant.
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 T
– 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.”
Considered by reference to question 1 in Mr Miller’s notice of appeal[22] and his oral and written submissions on appeal, it is apparent that, by this ground Mr Miller in substance seeks to re-argue his case before the Magistrate about the existence of a fixed fee or costs cap agreement with Mr Schlicht. The part of the reasons referred to in [(f)] above makes clear that the Magistrate rejected Mr Miller’s contention in this regard on the basis of an express finding of fact.
[22]See [19] above.
In those circumstances, applying the principles to which I have referred, in order to establish an error of law, it would be necessary for Mr Miller to demonstrate that it was not open to the Magistrate to make this finding of fact. By its very nature, such a conclusion cannot be reached in the absence of the material which was before the Magistrate, including the transcript of the hearing. It is to be noted that the Magistrate’s finding of a direct relationship and agreement between Mr Miller and Mr Schlicht was made on the basis of both email communications and conversations between them.
Further and in any event, although there was no evidence before me identifying ‘Exhibit P8’ referred to in the above part of the Magistrate’s reasons,[23] on the appeal, the parties proceeded on the basis that that document was an email from Mr Schlicht to Mr Miller dated 25 January 2016 which was in the Magistrates Court Book and which relevantly stated:
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.
[23]See [16(f)] above.
The parties also made submissions to me about the following email from Mr Schlicht to Mr Miller’s solicitor dated 22 January 2016, which also was in the Magistrates Court Book:
Hi Nelson,
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 on 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.
Regards
Anthony Schlicht
It was patently open to the Magistrate to conclude on the face of the above emails, assuming they were in evidence, that there was no agreement between Mr Schlicht and Mr Miller to cap or fix Mr Schlicht’s fees.
Grounds 2-13
Ground 2-13 of Mr Miller’s notice of appeal are discursive and voluminous. In general terms, read with the questions set out in the notice of appeal, they assert numerous alleged failures by Mr Schlicht in his conduct of the VCAT proceeding. The grounds are narrated by reference to various aspects of the interlocutory steps undertaken in that proceeding, VCAT’s reasons for decision, as well as statements made in the subsequent appeal proceedings. In brief, the following particular complaints and failures are alleged against Mr Schlicht in relation to his conduct in the VCAT proceeding:
(a) that he wrongly ‘diverted’ from Mr Miller’s Points of Claim and Reply;[24]
[24]Grounds 2 and 3.
(b) that he did not ‘adequately address the falsity’ of a particular claim;[25]
[25]Ground 4.
(c) that he ‘failed to pursue’ four admissions said to have been made by one of the respondents in the course of his evidence;[26]
[26]Ground 5.
(d) that he ‘went against’ Mr Miller’s instructions and s 136 of the VCAT Act[27] by failing to discontinue the proceeding ‘on the basis of false and misleading information’ given by two of the respondents in their evidence and thereby permitted ‘materially fraudulent’ or ‘materially false and misleading’ witness statements to be received as evidence;[28]
[27]Section 136 states: ‘A person must not knowingly give false or misleading information to the Tribunal or a registrar’.
[28]Grounds 6 and 7.
(e) that he ‘permitted’ two of the respondents to ‘depart from their witness statements’ and by ‘not correcting’ certain information said to be false and misleading;[29]
[29]Ground 8.
(f) that he failed to ‘properly address’ a particular issue before the Tribunal;[30]
[30]Ground 9.
(g) that he ‘permitted false and misleading evidence to be given orally to the Tribunal’ by one of the respondents and as a result ‘participated in misleading and deceptive conduct by the Respondents under s 181 of the Crimes Act 1958, in relation to monies owed’;[31]
[31]Ground 10.
(h) that he failed to raise s 234C of the Property Law Act 1958 against the respondents;[32]
(i) that he did not ‘permit’ Mr Miller to be recalled to give evidence to answer evidence given by one of the respondents;[33] and
(j) that he failed to submit a closing argument based on an alleged constructive trust.[34]
[32]Ground 11.
[33]Ground 12.
[34]Ground 13.
There are at least three difficulties with these grounds of appeal.
First, Mr Miller’s decision not to put before me the evidence of the proceeding before the Magistrate means that it is impossible to know whether all of these complaints were in fact raised before the Magistrate. However, the material before me suggests that most were not. Adopting the most generous interpretation of the grounds, it is apparent from the reasons that the Magistrate arguably only addressed the complaints raised by grounds 6, 8 and 10.[35] This is unsurprising because most of the above complaints were not raised by Mr Miller in his amended defence filed in the Magistrates’ Court proceeding.[36] An appellant in proceedings under s 109 of the Act will generally not be permitted to raise new allegations on appeal where those allegations raise issues in relation to which further evidence could be led. That is clearly the case in respect of the above grounds if, as appears to be the case, they were not raised below.
[35]See the summary of the reasons in [16(g)] above. Mr Brabham was the Third Respondent in the VCAT proceeding.
[36]See [12(c)] above.
Secondly, in respect of the ‘second issue’ identified by the Magistrate which arguably raised the complaints in grounds 6, 8 and 10,[37] it is plain that the principal basis on which the Magistrate decided that issue was on the basis of a finding of fact that Mr Miller did not give any instructions for the making of an application to the President of VCAT for an order that the proceeding be struck out or to seek summary dismissal.[38] In the absence of knowing the material which was before the Magistrate, it is impossible to conclude that this finding was not open such that any such error is an error of law. Mr Miller has accordingly failed to demonstrate the existence of any error of law in relation to this finding.
[37]As set out in [16(g)] above, the second issue identified by the Magistrate concerned evidence given by Mr Brabham in the VCAT proceeding and Mr Miller’s claim that Mr Schlicht ‘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’.
[38]See the summary of the reasons in [16(g)] above.
Thirdly, even if all or some of grounds 2-13 were established, I can discern no error in the Magistrate’s conclusion that the principle of advocate’s immunity would apply.[39] As a consequence, any of the alleged failures by Mr Schlicht would not operate to relieve Mr Miller from the obligation to pay Mr Schlicht the amount of his unpaid fees as ordered below.[40]
[39]See Attwells v Jackson Lalie Lawyers Pty Ltd (2016) 259 CLR 1.
[40]Mr Miller appeared to advance the allegations of negligence as a defence to Mr Schlicht’s claim for fees by way of an off-setting claim.
Other complaints raised by Mr Miller on appeal
The first document in the Magistrates’ Court Book is a copy of the complaint filed by Mr Schlicht marked with certain handwritten amendments. The heading of the statement of claim which forms part of the complaint is annotated and underlined with the word ‘Amended’. The only other changes to the statement of claim are the addition of the following two paragraphs which appear in handwriting at the very end of the document:
16Alternatively, the plaintiff claims the sum $36,250 pursuant to s 3.4.19 of the Legal Profession Act 2004 (Vic).
17Alternatively, the plaintiff claims the sum of $36,250 upon a quantum meruit.
Mr Miller argued that the claim against him was invalid because neither Mr Schlicht, nor Mr Schlicht’s solicitors, dated or initialled the amended statement of claim. This complaint must be dismissed.
The amended statement of claim did not need to be initialled. The Magistrates’ Court General Civil Procedure Rules 2010, in force at the time of the trial, relevantly provided as follows:
27.03 Form of document
…
(8) A document must also be indorsed on the first sheet with—
(a) the date of the document;
The amended statement of claim was not, however, indorsed with the date of its amendment. It did not comply with the Rules for that reason. However, r 2.01(1) of the Magistrates’ Court General Civil Procedure Rules 2010 provided that, although a failure to comply with the rules was an irregularity, that does ‘not render a proceeding or any step taken, or any document or order in the proceeding a nullity’. Further, pursuant to r 2.03 of the Magistrates’ Court General Civil Procedure Rules 2010, a proceeding or any step in any proceeding or any document or order in any proceeding may not be set aside on the ground of a failure to comply with the rules unless application is made ‘within a reasonable time after the applicant becomes aware of the failure’ and ‘ before the applicant has taken any fresh step (save for filing a notice of defence) after becoming aware of the failure’.
Mr Miller also complained that Mr Schlicht did not file a new overarching obligations certificate, proper basis certificate, or an affidavit explaining the rationale for amending the claim when filing the amended statement of claim. These complaints must also be dismissed. There is no evidence as to whether Mr Miller made an application to set aside the amended statement of claim, or objected to its filing because it was not accompanied by a new proper basis certificate. The appropriate time for Mr Miller to have complained about these irregularities was before, or at, the trial. These irregularities do not, in and of themselves, provide a basis to set aside the Magistrate’s decision on appeal. Further, with regard to the proper basis certificate, the Civil Procedure Act 2010 states that:
45Proceedings may be commenced or substantive documents filed despite failure to certify
Unless a court otherwise orders, a court may not prevent the commencement of civil proceedings in the court or the filing of any substantive document by a party to a civil proceeding merely because of a failure to comply with any certification requirement under this Part.
Mr Miller submitted that the amended statement of claim was misleading or deceptive because it listed the first defendant, Vasilaras & Co, as an active party in the proceedings, in circumstances where ‘there [was] no claim specifically against [him].’ This submission must be rejected. The amended statement of claim clearly brought a claim against Mr Miller. That he misunderstood the document does not provide a basis to set aside the Magistrate’s decision. Mr Miller has failed to articulate how he was prejudiced by the failure to strike through the name of the first defendant in the amended statement of claim.
Mr Miller also submitted that the ‘decision of the Magistrates’ Court was improper based on the fact that the matter was set down for hearing not as a matter of defence against the claims, but the defence against one claim that was settled’. Mr Miller went on to say that ‘[t]he settlement of that claim should have been a settlement of both claims in respect of that settlement of claim’.
This submission must be rejected. 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 Magistrate’s 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.
Mr Miller submitted that he was not given a cost agreement, trust ledger or record, or invoices indicating that he owed money to Mr Schlicht. He claimed that one of his legal representatives was obliged to provide him with these documents under the Legal Profession Uniform Law (Victoria). 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’. That exhibit was not identified by evidence or submissions before me. In any case, Mr Miller has not shown that the Magistrate’s finding was not open. This complaint must also be rejected.
Disposition
For the above reasons, the appeal must be dismissed.
Within 14 days, the parties are to provide any proposed minute of consent orders in respect of costs or, in the absence of agreement, submissions on costs limited to four pages.
---
0
5
1