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Shaw v Rigby Cooke Lawyers

Shaw v Rigby Cooke Lawyers

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Case Copied 20 May 2011 69 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8720 of 2009 and 839 of 2010

JOHN RASHLEIGH SHAW	Appellant
v
RIGBY COOKE LAWYERS	Respondent

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JUDGE:	SIFRIS J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 and 15 April 2011
DATE OF JUDGMENT:	20 May 2011
CASE MAY BE CITED AS:	Shaw v Rigby Cooke Lawyers
MEDIUM NEUTRAL CITATION:	[2011] VSC 214

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ADMINISTRATIVE LAW – Victorian Civil and Administrative Tribunal - Appeal from decision of an Associate Judge refusing leave – Error of law – Relevant consideration – Whether tribunal erred in rejecting appellant’s claims that solicitor acted negligently, in breach of contract and in breach of the Fair Trading Act 1999 – Whether tribunal erred in assessment of loss - Multiple overlapping grounds of appeal - Victorian Civil and Administrative Tribunal Act 1988 s 148 –Legal Profession Act 2004.

ADMINISTRATIVE LAW – Victorian Civil and Administrative Tribunal - Appeal from decision of an Associate Judge refusing leave – Procedural Fairness – Appellant a litigant in person – Whether Tribunal erred in suggesting that respondent bring a new claim under the Fair Trading Act 1999 and permitting new claim to be heard concurrently with proceedings already on foot –Whether other alleged miscellaneous procedural irregularities amounted to error of law.

ADMINISTRATIVE LAW – Victorian Civil and Administrative Tribunal - Appeal and cross appeal against decision granting leave – Costs – Indemnity costs – Whether offer of compromise capable of acceptance – Discretion to order costs where conduct vexatious and untenable claims pursued - Victorian Civil and Administrative Tribunal Act 1988 ss 109 and 112.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J R Shaw	In person
For the Respondent	Mr S Tatarka	Rigby Cooke Lawyers

HIS HONOUR:

A. Introduction

In February and March 2009, Senior Member Howell of the Victorian Civil and Administrative Tribunal (“Tribunal”) heard three matters in the Legal Practice List between the appellant, John Rashleigh Shaw, and the respondent, Rigby Cooke Lawyers (“Rigby Cooke”).

Before the Tribunal, Mr Shaw made numerous claims against Rigby Cooke, his former solicitors, relating to their management and conduct of a case in this Court (“Yarranova Proceeding”) against property developers, Yarranova Pty Ltd (“Yarranova”) and Newquay (Stage 2) Pty Ltd (“Newquay”). Mr Shaw also disputed the fees charged by Rigby Cooke for work done in relation to the Yarranova Proceeding. In response, Rigby Cooke brought a claim against Mr Shaw for unpaid legal fees.[1]
[1]Rigby Cooke’s claim was initially brought as a counterclaim to Mr Shaw’s action under the Legal Profession Act2004 (Vic), but at the Senior Member’s suggestion it issued a new application under the Fair Trading Act 1999 (Vic). This is one of the matters in respect of which Mr Shaw now complains.

On 5 August 2009, Senior Member Howell dismissed all but two of Mr Shaw’s compensation claims and ordered that Rigby Cooke pay Mr Shaw $6,240.00 in compensation. However, he also ordered that Mr Shaw pay the fees…

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.

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Details

Case: [2011] VSC 214
Decision Date: 20 May 2011

CaseChat Overview and Summary

The appellant, Shaw, brought an appeal against the decision of the respondent, Rigby Cooke Lawyers, in the Victorian Civil and Administrative Tribunal (VCAT). Shaw sought damages for alleged negligence, breach of contract, and breach of the Fair Trading Act 1999 (Vic) by Rigby Cooke Lawyers. The appeal was from an Associate Judge's decision refusing leave to appeal, while the cross-appeal was from a decision granting leave. Shaw, appearing as a litigant in person, alleged procedural irregularities and errors in the tribunal's assessment of loss.

The primary legal issue was whether the tribunal erred in rejecting Shaw's claims against Rigby Cooke Lawyers. Shaw contended that the tribunal failed to properly consider the evidence of negligence, breach of contract, and breach of the Fair Trading Act. Additionally, Shaw argued that the tribunal's suggestion to bring a new claim under the Fair Trading Act and allowing it to be heard concurrently with existing proceedings was erroneous. Furthermore, Shaw claimed that other procedural irregularities amounted to errors of law.

The court found that the tribunal did not err in rejecting Shaw's claims. The tribunal's assessment of the evidence was thorough, and the suggestion to bring a new claim under the Fair Trading Act was within the tribunal's discretion. The court held that the procedural irregularities did not amount to errors of law and that the tribunal's assessment of loss was reasonable. Regarding the cross-appeal, the court found that the tribunal properly exercised its discretion in ordering costs due to Shaw's vexatious and untenable claims.

The tribunal's decision was affirmed, and the cross-appeal was dismissed. Shaw was ordered to pay the respondent's costs of the appeal, including indemnity costs, as the offer of compromise was capable of acceptance, and the conduct was vexatious and untenable.

Orders