Skabaw Pty Ltd v Morphett - [2011] VSC 489

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2011 02620

SKABAW PTY LTD (t/as Detailed Homes) (ACN 006 056 524)	Appellant
v
ANTHONY DONALD MORPHETT & ORS (According to the schedule attached)	Respondent

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JUDGE:	HARGRAVE J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 September 2011
DATE OF JUDGMENT:	27 September 2011
CASE MAY BE CITED AS:	Skabaw Pty Ltd v Morphett & Ors
MEDIUM NEUTRAL CITATION:	[2011] VSC 489

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COSTS – Victorian Civil and Administrative Tribunal – Unrepresented party became represented during course of hearing – Hearing adjourned – Whether natural justice required legal practitioner for previously unrepresented party to be given a reasonable opportunity to review materials and take instructions before being required to make submissions as to whether any costs thrown away and, if so, their extent – So held - No reasonable opportunity provided – Costs orders set aside in part.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R Andrew	Rodriguez Lawyers
For the First and Second Respondents	Mr R Fink	Taylor Splatt & Partners Lawyers
For the Third Respondent	No appearance

HIS HONOUR:

Anthony and Janet Morphett engaged Skabaw Pty Ltd to build a house on their land. Skabaw is a company controlled by Tony Barbagello. Disputes arose between the parties and the building contract was terminated. Mr and Mrs Morphett sued Skabaw in the Victorian Civil and Administrative Tribunal, claiming damages exceeding $700,000.

Skabaw engaged solicitors and counsel to defend the proceeding through most of the interlocutory stages. However, following a dispute with its lawyers in February this year, a decision was made to terminate the solicitor's retainer and for Mr Barbagello to represent the company as, in effect, a litigant in person. No objection was taken to that course by the tribunal.

The final hearing of the proceeding commenced on Monday 2 May 2011. At the outset, Mr Barbagello applied to strike out the claims. The strike out application was refused, but an order was made in his favour for the production of some relevant documents. Mr Barbagello applied for an adjournment, which was refused. The hearing of Mr and Mrs Morphett’s claim then commenced and was heard on 2 and 3 May.

Early in the hearing, it became clear that Mr Barbagello was out of his depth. In these circumstances the tribunal member properly brought to his attention the desirability of seeking legal representation.

Following an opening by counsel for Mr and Mrs Morphett, the first defendant's evidence-in-chief and some cross-examination, there was a lay day in the hearing on 4 May, and then a compulsory conference on 5 May in an endeavour to compromise the proceeding. That endeavour was unsuccessful.

The matter came on for hearing again on Friday, 6 May. By this time Mr Barbagello, on behalf of Skabaw, had secured legal representation for the company. Mr Powell appeared. He applied for an adjournment to enable Skabaw to be effectively represented during the course of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Skabaw Pty Ltd v Morphett

Details

AGLC: Skabaw Pty Ltd v Morphett [2011] VSC 489
Case: [2011] VSC 489
Decision Date: 27 September 2011

CaseChat Overview and Summary

Skabaw Pty Ltd, the appellant, brought proceedings against Morphett, the respondent, in the Victorian Civil and Administrative Tribunal. The dispute centred on whether the tribunal was correct in its decision to award costs to Morphett. During the course of the hearing, Skabaw transitioned from being unrepresented to being represented by legal counsel. The tribunal adjourned the hearing to allow Skabaw's legal representative to review the materials and take instructions. Upon reconvening, the tribunal required Skabaw's counsel to make submissions regarding the costs thrown away and their extent. Skabaw argued that the tribunal failed to afford its legal counsel a reasonable opportunity to review the materials and take instructions, thereby breaching the principles of natural justice.

The primary legal issue before the court was whether the tribunal's decision to require Skabaw's legal counsel to make submissions without providing a reasonable opportunity to review materials and take instructions contravened the principles of natural justice. The court examined the circumstances under which Skabaw became represented, the timing of the adjournment, and whether the tribunal's actions were fair and just. The court also considered whether Skabaw's legal counsel was given a fair chance to respond to the tribunal's decision on costs.

The court found that the tribunal did not provide Skabaw's legal counsel with a reasonable opportunity to review the materials and take instructions before making the submissions on costs. The adjournment did not allow for adequate preparation, and the tribunal's requirement for immediate submissions was unjust. Consequently, the court held that the tribunal's decision breached the principles of natural justice. The court set aside the costs orders in part, as the tribunal had not acted fairly and justly in its decision-making process.

Orders