Sherman v Watson
[2002] VSC 496
•11 November 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
No. 6871 of 2002
| PETER SHERMAN | Appellant |
| v | |
| DIANA WATSON | Respondent |
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JUDGE: | BEACH J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 11 NOVEMBER 2002 | |
DATE OF JUDGMENT: | 11 NOVEMBER 2002 | |
CASE MAY BE CITED AS: | SHERMAN v. WATSON | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 496 | |
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APPEARANCES: | Counsel | Solicitors |
| For the Apellant | In Person | |
| For the Respondent | Mr. J. McDougall | Clayton Utz |
HIS HONOUR:
On 31 January 2002 the appellant, Peter Sherman, filed a claim in the Victorian Civil & Administrative Tribunal whereby he sought to recover the sum of $11,167 from the respondent, Diana Watson. That claim was later amended by increasing the amount claimed to $12,647.
The claim came before the Tribunal on 20 May 2002 and on 17 July 2002 the Tribunal dismissed the claim. The Tribunal delivered written reasons for its ruling on 17 July. The reasons contain the following paragraphs:
"9. The respondent alleged that a week before her divorce settlement the applicant requested $7,500 as payment for his work, the sum being a percentage commission of the respondent's matrimonial settlement.
10. Whilst all communications were oral concerning payment of the applicant's work, it was conceded by the applicant that the respondent had paid the applicant $4,750, $4,000 being a cheque given by the respondent's solicitor to the applicant. She asserted that she had paid the applicant further sums in cash totalling $2,000 for which receipts were not given.
11. The applicant did not produce any documentation, nor did he tell the Tribunal of any documents that he had prepared for the respondent for which the applicant could claim payment. The applicant said that the respondent had removed all her files without his consent and that he had not retained any copies."
I should interpolate that the applicant described his occupation to the Tribunal as an auditor, not a legal adviser.
"12. The Tribunal accepted that the applicant had done work for the respondent in her matrimonial dispute, for which the respondent paid $4,750 as acknowledged by the applicant in correspondence with the respondent. Without evidence from the applicant of any entitlement to further moneys, the Tribunal dismisses the applicant's claim as not being proved."
I should perhaps have earlier referred to the history of the dispute between the parties outlined by the appellant in his application to the Tribunal:
"On January 28th 2001, the respondent engaged the services of the applicant in exchange for payment of fees equal to ten percent of the respondent's share of the value of the matrimonial assets on the then final orders by the Family Court of Australia (net of the balance of mortgage plus GST). On March 14th 2001 the respondent extended the applicant's engagement at a rate (weekly) equal to one 44th of that amount. The respondent threatens to have the applicant killed if an attempt is made to recover the balance of fees."
At all events, the Tribunal dismissed the claim for the reasons I have stated.
On 20 August 2002 the appellant filed an originating motion in the Court whereby he sought leave from the Court to appeal from the orders of the Tribunal. The questions of law he said were raised by the Tribunal's decision were stated in his proposed notice of appeal in the following terms:
"1.Was it reasonably open to the Member to conclude (on the basis of the statements made to the Tribunal or otherwise) as she did that -
A. the appellant did not produce any documentation;
B.the appellant did not tell the Tribunal of any documents that he had prepared for the respondent;
C.there was no evidence from the appellant of his entitlement to the unpaid balance of remuneration agreed to be paid to him by the respondent for the work agreed to be done by him for the respondent.
2.Whether the Tribunal was constituted conformably with statutory requirements for prescribed proceedings under its own and under the enabling enactment in an action requiring (amongst other things) declarations of unlawful activity by the respondent.
3.Whether as a matter of law the documents subpoenaed by the appellant -
A. were of a privileged nature and
B. could not be produced to the Tribunal."
The application for leave to appeal came before a Master of the Court on 15 October 2002 and was dismissed by him. In his reasons the Master said:
"The Tribunal in this case ruled that the plaintiff had not proved his case. The onus was on him to do so and in all the circumstances, despite the informality of proceedings before the Tribunal, no question of law has been demonstrated."
On 24 October 2002 the appellant filed a notice of appeal in the Court against the Master's decision.
On the face of the notice of appeal, the appeal was out of time. The appellant's explanation for that is that he did not receive a copy of the Master's written reasons until 23 October 2002, and that statement is confirmed by the envelope sent to him enclosing the Master's reasons, which in fact is postmarked "23 Oct. '02". If the appellant were otherwise entitled to the order he now seeks in the matter, I would have waived his non-compliance with the provisions of the rules relating to the notice of appeal.
However, having considered this matter, it is my opinion that it cannot be argued that the Tribunal made an error of law in the matter. The Tribunal dismissed the appellant's claim before it on the footing that the appellant had simply not proved his case, and it explained in its reasons why it came to that conclusion. I can see no error of law in the findings of the Tribunal to that effect. In other words, it was simply not satisfied that the appellant was entitled to recover any further moneys from the respondent.
As to the proposed ground relating to the constitution of the Tribunal, there is no material before me which suggests in any way that the Tribunal was not properly constituted in accordance with the provisions of the Civil & Administrative Tribunal Act.
As to the third proposed ground of appeal, that relates to a subpoena, or a summons to appear, that was served on a firm of solicitors, Joseph Rose Lawyers and Consultants. It would appear that that firm had acted for the respondent in matrimonial proceedings. The summons to appear required the firm to produce the entire contents of all files in the Diana Watson matrimonial matter and property settlement, as well as partnership matters. Mr Rose appeared before the Tribunal and declined to produce the documentation in question on the ground that the documents were privileged. The Tribunal accepted that they were privileged and made no order against Joseph Rose Lawyers and Consultants in relation to the matter.
I think it is strongly arguable that the documentation was privileged, but, whether that be so or not, as the Master pointed out in his reasons for his decision, the subpoena is far too wide and on that ground alone the Tribunal was justified in not requiring it to be met.
I agree with that view, and if the matter had originally come before me I would have struck out the summons to appear.
At all events, as I have previously indicated, I am not satisfied that it is arguable that the Tribunal made any error of law in arriving at the decision it did in the matter, and it follows from that conclusion that the appellant's appeal to a judge of the Court must be dismissed.
I order that the appeal be dismissed.
I order that the appellant pay the respondent's costs of the appeal.
(Discussion ensued.)
HIS HONOUR: I order that within seven days of this date the appellant file in the Court a notice disclosing to the Court his residential address.
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