V v Elringtons Pty Ltd
[2018] ACAT 23
•19 March 2018
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
V v ELRINGTONS PTY LTD (Appeal) [2018] ACAT 23
AA 40/2017 (XD 323/2017)
Catchwords: APPEAL – civil dispute – client ordered to pay lawyers’ fees, plus interest and filing fee – client’s counterclaim allowed in part for a small amount – appeal conducted as a review of decision of Original Tribunal – use of fresh evidence on appeal – role of Appeal Tribunal
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 82
Subordinate
Legislation cited: Court Procedures Rules 2006 sch 2Cases cited: Allesch v Maunz (2000) 203 CLR 172
Coal and Allied Operations Pty Limited v AustralianIndustrial Relations Commission (2000) 203 CLR 194
Connelly v Allan [2011] ACTSC 170
Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4
Fedorow v Fedorow [2011] ACTCA 10
Fox v Percy (2003) 214 CLR 118
Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275
House v R (1936) 55 CLR 499
Lukatela v Birch [2008] ACTSC 99
Sarbandi v Sharif [2017] ACAT 57The Tenant v Commissioner for Social Housing [2016] ACAT 49
Tribunal: President G Neate AM
Date of Orders: 19 March 2018
Date of Reasons for Decision: 19 March 2018
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 40/2017
BETWEEN:
V
Appellant
AND:
ELRINGTONS PTY LTD
Respondent
TRIBUNAL:President G Neate AM
DATE:19 March 2018
ORDER
The Tribunal orders that:
1.The appeal is dismissed.
………………………………..
President G Neate AM
REASONS FOR DECISION
1.The appellant (V or Mr V[1]) engaged Elringtons Pty Ltd (Elringtons), an incorporated firm of solicitors, to act for him in Family Law proceedings involving his young daughter. Carlos Turini, a director of Elringtons and an accredited specialist in Family Law, represented Mr V at a proceeding in the Federal Circuit Court (the Court) in April 2016. The Court made orders on the understanding that they were made by consent of the parties. Mr V contended, however, that he was unhappy with at least one of the orders and with an aspect or aspects of the way in which Mr Turini conducted the matter in the Court. In July 2016, Elringtons sent Mr V an invoice in the sum of $5,500.00 (later amended to $5,475.00) for their services. Mr V did not pay it.
[1] The name of the appellant is not used because these reasons for decision include details from Family Law proceedings in the Federal Circuit Court
2.After repeated requests for payment, Elringtons commenced proceedings in the ACT Civil and Administrative Tribunal (the Tribunal) to recover that money. Mr V filed a counterclaim for $3,900.00 and set out his grievances with respect to his legal representation. After some delays, the matter came before a senior member of the Tribunal (the Original Tribunal) for hearing on 18 September 2017.
3.In a decision delivered orally with reasons on 4 October 2017, the Original Tribunal ordered, in summary, that:
(a)Mr V pay Elringtons the sum of $5,810.38 (consisting of unpaid legal fees of $5,475.00, contractual interest of $351.87, and the Tribunal filing fee of $290.00); and
(b)Elringtons pay Mr V the sum of $67.55 on the counterclaim, such sum to be credited against the sum owing by Mr V to Elringtons.
4.On 3 November 2017, the total amount set out in the first order was corrected so that “$5,810.38” was replaced with “$6,116.87.”
5.Mr V has appealed against the decision of the Original Tribunal. After directions with which the parties generally complied, the appeal was heard by the Tribunal as presently constituted (the Appeal Tribunal). Mr V appeared on his own behalf. Ms Aidman appeared for Elringtons.
The decision of the Original Tribunal
6.The oral reasons for decision of the Original Tribunal are recorded in a transcript.
7.The Original Tribunal noted that Mr V had paid the first two invoices from Elringtons (totalling $5,566.00) but did not pay the final invoice for $5,500.00. Mr V claimed not only that he was not liable to pay the final invoice, but he was also entitled to a refund of $3,900.00 of the amount he had already paid because Mr Turini failed to provide professional services with reasonable care and skill, and failed to follow Mr V’s instructions. Mr V alleged three specific occasions on which Mr Turini failed in that regard:
(a)Mr Turini suggested the appointment of a particular clinical psychologist, rather than another clinical psychologist;
(b)while representing Mr V in the Court on 15 April 2016, Mr Turini:
(i) consented on Mr V’s behalf (but against his instructions) to orders that Mr V’s contact with his daughter be supervised by Ohana Family Services (Ohana), a contact supervision service in Canberra;
(ii) did not tell Mr V that Ohana would charge him a fee for this service before the consent orders were made; and
(iii) failed to raise with the Court allegations of violence by his estranged wife, the daughter’s mother, against the daughter;
(c)Elringtons failed to pass on to Mr V information from the mother’s solicitor that his daughter would be absent from Ohana due to illness on 25 May 2016 and, as a consequence, he wasted a trip to Ohana to visit his daughter.
8.The Original Tribunal considered Mr V’s counterclaim in terms of contract, negligence and the Australian Consumer Law.
9.The Original Tribunal found:
(a)that Mr Turini exercised appropriate care and skill in recommending a particular clinical psychologist and discharged his professional duties to Mr V;
(b)in relation to the “cluster of allegations about what happened” at the Court on 15 April 2016, that Mr Turini acted in accordance with Mr V’s instructions on that day;
(c)that because the email message sent to Mr Turini’s direct email address at 4.53pm on 24 May 2016 was not conveyed to Mr V before he travelled to the Ohana centre in the early afternoon of 25 May 2016, Elringtons did not exercise due care and skill (but stressed that this was an isolated and relatively minor lapse in the context of generally competent and careful service), and hence awarded Mr V the sum of $67.55 for his inconvenience, loss of time and travel expenses.
10.As a consequence of those findings the Original Tribunal upheld the claim by Elringtons for the unpaid legal fees. The Original Tribunal also awarded the amount of the filing fee in the Tribunal and the sum of $351.87 in interest calculated by reference to the Court Procedures Rules rate. In awarding interest on the amount owed by Mr V, the Original Tribunal noted that clause 4.9 of the costs agreement between Elringtons and Mr V allowed interest to be charged to the client from 30 days after the client received the invoice.
The grounds of appeal
11.Mr V lodged his application for appeal on 1 November 2017. He set out in detail his concerns, identified questions of law involved, listed additional items of evidence he wished to introduce, and sought that:
(a)the order made by the Original Tribunal on 4 October 2017 be set aside;
(b)there be orders that he is not liable to pay the amounts claimed by Elringtons (including interest and Tribunal filing fee);
(c)he be refunded $3,900.00 he paid to Elringtons; and
(d)Elringtons pay him for wasted trips and economic loss incurred on 25 May 2016 and 11 July 2017, his Tribunal filing fee and Tribunal appeal fee.
12.In accordance with directions made by a Presidential Member of the Tribunal on 20 November 2017, Mr V filed and served a revised application for appeal which included “Amended grounds of appeal and further written submissions in support of the appeal”. At the hearing of the appeal, Mr V confirmed that he was relying on the latter document.
13.As part of his revised application, Mr V included amended orders seeking that:
(a)he is not liable to pay the $5,500.00[2] claimed by Elringtons, the amount of $351.87 interest associated with that, and the Tribunal filing fee of $290.00; and
(b)Elringtons pay him a total of $5,485.41 comprising the refund to him of the fees he paid to Elringtons after 15 April 2016 ($3,566.00), a sum for his wasted trip and economic loss incurred on 25 May 2016 ($400.00), a sum for his wasted trip and economic loss incurred on 11 July 2017 ($400.00), the Tribunal fee he paid for his counterclaim ($145.00), the appeal lodgement fee ($538.00), the fee for a transcript of the Court hearing on 15 April 2016 ($196.15) and the fee for the transcript of the Original Tribunal decision hearing on 4 October 2017 ($240.26).
[2] That amount was later adjusted to $5,475.00 because subpoena conduct fees of $25.00 were returned to the trust account in August 2017
14.For the purpose of preparing submissions in reply, Elringtons distilled Mr V’s submissions into the following points:
(a)that the Original Tribunal erred in preferring Mr Turini’s evidence in relation to conduct at the Family Law hearing and therefore in finding that Mr Turini did not act negligently or against the client’s instructions at Court on 15 April 2016;[3]
[3] See amended grounds of appeal and further written submissions in support of the appeal, paragraphs 1-6, 8-11
(b)that the Original Tribunal erred by not giving reasons on the question of whether Mr Turini raised allegations of violence by the mother against his child with the Court;[4]
(c)that the Original Tribunal erred in not regarding evidence in relation to Mr V’s hourly rate in calculating the value of his time;[5]
(d)that the Original Tribunal erred in finding that Mr Turini’s email was a “personal email”;[6] and
(e)that the Original Tribunal erred in calculating interest beyond 11 July 2017.[7]
Fresh evidence on review
[4] See amended grounds of appeal and further written submissions in support of the appeal, paragraphs 11-14
[5] See amended grounds of appeal and further written submissions in support of the appeal, paragraph 18
[6] See amended grounds of appeal and further written submissions in support of the appeal, paragraph 21
[7] See amended grounds of appeal and further written submissions in support of the appeal, paragraph 22
15.Included in the directions made on 20 November 2017 was a direction that the appeal would proceed as a review.[8] However there was also a direction that Mr V file and serve his written submissions in support of his application for fresh evidence to be admitted on the hearing of the appeal.
[8] That is a ‘review of all or part of the original decision’ rather than ‘as a new application’ – see ACT Civil and Administrative Tribunal Act 2008 s 82
16.Mr V filed and served a one page document headed “Fresh Evidence List” which described seven categories of documents in addition to the written transcript of the Original Tribunal’s oral reasons for decision dated for October 2017.
17.At the commencement of the appeal hearing, the Appeal Tribunal ruled that the following documents be admitted into evidence:
(a)transcript of the proceeding at the Court on 15 April 2016;
(b)email instructions from Mr V to Elringtons on 15 April 2016;
(c)Notice of Risk filed at the Court on 13 April 2016.
18.The Appeal Tribunal refused the tender of the following documents on the basis that they were not relevant to the appeal, or related to matters that were already in evidence before the Original Tribunal, or are not in dispute:
(a)invoices of payments to Ohana;
(b)emails and invoices showing the amounts Mr V is paid for his services as an interpreter;
(c)different versions of a final invoice from Elringtons;
(d)Mr Turini’s business card.
19.Mr V’s further written submissions in support of the appeal highlight the extent to which he sought to rely on fresh evidence. That document states, in summary, that:
(a)the decisions appealed against were based on the evidence before the Original Tribunal, including an incomplete chain of emails;
(b)in the absence of a transcript of the Family Law proceedings, the Original Tribunal made the first order based on Elringtons’ description of how the hearing before the Court was run on 15 April 2016;
(c)the Original Tribunal erred by not weighing the facts before her and not covering the complete issues of the case;
(d)consequently, the decisions of the Original Tribunal were erroneous;
(e)the grounds of appeal are “largely based on fresh facts” and Mr V wants the Appeal Tribunal to “make decisions based on fresh facts” (by which I understand him to mean “fresh evidence” in relation to events or actions that were referred to in the proceedings before the Original Tribunal)[9]; and
(f)the fresh evidence available to the Appeal Tribunal (which was not available to the Original Tribunal) would support his appeal by showing that Elringtons’ description of the Family Law hearing was “intentionally misrepresentation.”
[9] In his oral submission at the appeal hearing Mr V referred to the additional evidence as “complete evidence” rather than ‘fresh’ evidence, transcript of proceedings before Appeal Tribunal page 32
20.Because the Appeal Tribunal had the benefit of some additional written material that was not available to the Original Tribunal, it is useful to set out the role of the Appeal Tribunal in hearing and deciding such an appeal.
21.The starting point is the statement by High Court of Australia in House v R:[10]
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
[10] House v R [1936] HCA 40; (1936) 55 CLR 499. See the discussion of the implications of this statement in subsequent decisions of courts and the Tribunal in The Tenant v Commissioner for Social Housing [2016] ACAT 49 at [12]-[15]
22.The following passage from the judgment of the majority of the High Court in Fox v Percy[11] is also relevant:
The “rehearing” does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. ...
The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to “give the judgement which in its opinion ought to have been given in the first instance”. On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derived from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole. (Citations omitted)
[11] Fox v Percy (2003) 214 CLR 118 at [22]-[23], (Gleeson CJ, Gummow and Kirby JJ); see also Fedorow v Fedorow [2011] ACTCA 10 at [7]-[9], Gray P, Penfold J, Nield AJ
23.In Excel Intelligent Pty Ltd v Thomson,[12] the Tribunal considered the judicial authorities discussing the role of an appeal court or tribunal. It is not necessary to repeat the full discussion in that decision. However, it is relevant to note the following propositions drawn from judgments about the nature of a rehearing:
(a)An appeal court (or an appeal tribunal) must determine whether the decision appealed against is wrong because the court at first instance (or an original tribunal) fell into an error of law, made a finding of fact that is clearly wrong or exercised a discretion on a wrong principle or in a way that is clearly wrong.[13]
(b)Ordinarily, if there has been no further evidence admitted or no relevant change in law, a court in entertaining an appeal by way of rehearing (or an appeal tribunal) can exercise its appellate powers only if satisfied that there was an error on the part of the court below[14] (or an original tribunal).
(c)The appellate court (or an appeal tribunal) will give proper allowance to the advantage of the court of first instance (or an original tribunal) who saw and heard the witnesses, so that, ordinarily, facts found based on the assessment of witnesses will not lightly be overturned.[15]
(d)The appellate court (or an appeal tribunal) is obliged to conduct a real review of the trial and the reasons of the court of first instance (or an original tribunal).[16]
(e)In an appeal by way of rehearing, once error below has been found (after making proper allowance for the advantages of the trial judge or original tribunal), the appellate court (or appeal tribunal) can substitute its own decision based on the facts and the law as they now stand.[17]
[12] Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4 at [46] – [55]
[13] Connelly v Allan [2011] ACTSC 170 at [12], Refshauge J
[14] Lukatela v Birch [2008] ACTSC 99 at [22], Rares J citing Coal and Allied Operations Pty Limited v AustralianIndustrial Relations Commission (2000) 203 CLR 194, 203 at [14], Gleeson CJ, Gaudron and Hayne JJ
[15] Connelly v Allan [2011] ACTSC 170 at [12], Refshauge J. See also Sarbandi v Sharif [2017] ACAT 57 at [67]-[71]
[16] Connelly v Allan [2011] ACTSC 170 at [13], Refshauge J
[17] Allesch v Maunz (2000) 203 CLR 172, 180-1 at [23], 187 [44]; Lukatela v Birch [2008] ACTSC 99 at [18], [21], Rares J
24.It is also appropriate to note the observations about an internal Tribunal appeal made by Refshauge J in Giusida Pty Limited v Commissioner for ACT Revenue:
... careful thought and a consideration of the purpose and meaning of an internal appeal strengthens my view that a wider and general power is intended and not one which restricts the original decisions from proper scrutiny.
Thus, while error needs to be shown before the ACAT on appeal will set aside the original decision on the application from which the appeal is taken, it is not required that the error be “manifest”, “obvious” or other than an error discernible by a proper assessment of the evidence and the law. ...
A final comment is necessary. The proceedings before the ACAT on appeal and before me refer at times to the common reference in appellate discourse as to what is “open” to a first instance decision-maker. It seems to me that this is a wide term that needs careful consideration. It also needs to be clear that, if there is an error of fact or law in a finding of the ACAT, then it is not open to it to make such a finding unless the error is not a material one.
The evidence that permits a decision maker to draw a conclusion must have a character of reliability and reasonable substance; it must not be mere evidence, that it is simply what is put before the tribunal.[18]
Submissions
[18] Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275 at [37]-[40]
25.At the hearing of the appeal, Mr V relied on and spoke to his “Amended grounds of appeal and further written submissions in support of the appeal.”
26.In his written submissions, Mr V makes serious allegations about Elringtons. He contends that Elringtons “lied or twisted the facts in all materials particular to the Tribunal” and “intentionally misrepresents critical facts” to the Original Tribunal.
27.In particular, he submits that Mr Turini:
(a)was negligent in failing to raise with the Court allegations of violence by the mother against the daughter;
(b)lied to the Original Tribunal about the situation at the Court hearing, and his description of what happened was “totally false;”
(c)at the hearing by the Original Tribunal, made false statements under oath that he knew to be false in relation to what he told the Court on 15 April 2016; and
(d)gave evidence to the Original Tribunal that was “mere deception” about advising Mr V about the cost of the Ohana service.
28.Mr V describes himself as the victim[19] of Mr Turini’s misconduct, negligence and unsatisfactory conduct.
[19] Mr V asserts that, since Mr Turini acted for him, he has suffered from depression and anxiety, sleeping disorder and low self esteem
29.Mr V submits that the Original Tribunal erred by making findings based on incomplete evidence (that is, only part of the email exchange between Mr Turini and Mr V) and false oral testimony from Mr Turini.
30.Ms Aidman for Elringtons relied on and spoke to the written submissions provided to Mr V and the Tribunal. It is convenient to deal with the issues in the order listed in [14]. I note that the issue about the appropriate psychologist referred to at [7](a) was not a subject of the appeal.
Mr Turini’s actions at Family Law proceedings on 15 April 2016
31.Mr V submits that the Original Tribunal erred in preferring Mr Turini’s evidence in relation to conduct at the Family Law hearing and therefore erred in finding that Mr Turini did not act negligently or against Mr V’s instructions at Court on 15 April 2016.
32.Mr V also submits that the Original Tribunal erred by not giving reasons on the question of whether Mr Turini raised allegations of violence by the mother against the child with the Court.
33.In support of those submissions, Mr V contends that:
(a)Elringtons acted against his instructions when requesting orders that his contact with his daughter occur at the supervised Ohana family centre, and Elringtons did not inform him that Ohana was a fee charging service;
(b)Elringtons failed to inform the Court of allegations of violence by the mother against his daughter, and failed to raise with the Court that the mother should not apply corporal punishment when disciplining the child (something which Mr Turini promised he would do and confirmed that by email to Mr V); and
(c)the Original Tribunal did not comment on Mr Turini’s failure to raise with the Court the allegations of violence by the mother against their daughter.
34.There are two components of this part of Mr V’s case:
(a)whether the evidence before the Appeal Tribunal (some of which was not before the Original Tribunal) establishes that Mr Turini did not act on Mr V’s instructions in relation to supervised access by Mr V to his daughter, and did not advise the Court about allegations of violence by the mother against the child or about the corporal punishment issue; and
(b)whether, if Mr Turini did not act on instructions in relation to supervised access and did not advise the Court about the violence allegations and corporal punishment issue, the Original Tribunal made errors of fact and, as a consequence, Mr V’s appeal should succeed.
35.In assessing the evidence and its implications it is appropriate to bear in mind that, as Ms Aikman said to the Original Tribunal, the proceeding on 15 April 2016 before the Court was a first mention of the matter, not a “hearing,”[20] and was for an application by Elringtons on behalf of Mr V for an ‘Airport Watch List’ order.[21] At the hearing of the appeal, Mr V said the key purpose of that proceeding that day was to put his child’s name on the Airport Watch List to prohibit her from going abroad with her mother.[22]
[20] Transcript of proceedings before Original Tribunal page 9
[21] Transcript of proceedings before Original Tribunal page 10
[22] Transcript of proceedings before Appeal Tribunal page 36
36.I note also that on 29 March 2016, about two weeks before the proceeding in the Court, Mr V’s wife lodged an ‘Application for a Domestic Violence Order’ in the Magistrates Court of the ACT seeking orders that Mr V be prohibited from being within 100 metres of her and their daughter, except in certain restricted circumstances including in accordance with an order made pursuant to the Family Law Act 1975 (Cth). It was not clear from the oral or written evidence before the Original Tribunal whether the Domestic Violence Order had been made,[23] but the Original Tribunal proceeded on the basis that, at the time of the mention before the Court on 15 April 2016, Mr V could not have contact with his daughter. At the hearing of the appeal, Mr V said that Elringtons were involved in non-legal work after the Court proceeding as he could not speak directly to the other party because of the Domestic Violence Order.[24]
[23] See the witness statement of Carlos Turini affirmed 27 June 2017 and attachment A to it, transcript of proceedings before Original Tribunal pages 13-15
[24] Transcript of proceedings before Appeal Tribunal page 35
37.I commence by dealing separately with the evidence in relation to issues about supervised access, corporal punishment and alleged violence.
Supervised access
38.At the hearing before the Original Tribunal, Mr Turini referred to an email that he sent to Mr V at 8:51am on 15 April 2016, the day the matter came before the Court. That email described how the matter was listed urgently before a particular judge, the steps taken to ensure that Mr V’s wife was served with notice, and Mr Turini’s expectation that the judge would make orders to restrain Mr V’s wife from taking their daughter out of Australia (“the most urgent thing”). Mr Turini wrote that the Court could not make any findings that day about matters that were in dispute in the evidence between Mr V and his wife. The email referred to serious allegations that each party had made about the other in relation to their daughter, and continued:
… the court will not make orders today that you spend unsupervised time with [daughter]. The Judge may make orders that you have supervised time but then we need to arrange for this to happen. We will need an appropriate supervisor to undertake to the Court that he/she will assume the responsibility of the role as supervisor.
39.At 9.47am that day, Mr V replied to Mr Turini by email stating that he understood the judge “will make safe decisions today but a father should maintain his right to see her (sic) daughter.” Having summarised the extent of his contact with his daughter in 2015 and 2016, Mr V wrote:
Add up all those facts together, how come that I need to nominate a supervisor? Meet in public place is the minimum, I am entitled to spend time with [daughter] over the weekend at home.
40.Mr Turini gave evidence to the Original Tribunal that, at the judge’s suggestion, he discussed the application for contact with the daughter with Ms Hiles, the lawyer representing Mr V’s estranged wife. According to Mr Turini, his negotiations with Ms Hiles were conducted:[25]
on instructions from [Mr V]. And [Mr V] knew, at all times, that we were negotiating supervised visits and the suggestion that was then (indistinct) suggested a place called Ohana Services … that provides these type of services. My priority and my advice to [Mr V] was that he should begin to have time with his child urgently, immediately under whatever conditions and I understood that my instructions are - were to proceed with that. And the suggestion that I acted without instructions is false.
[25] Transcript of proceedings before Original Tribunal page 13
41.At the hearing before the Original Tribunal, when being examined by Mr V, Mr Turini said that on 15 April 2016 he explained to Mr V the type of services provided by Ohana.[26] He continued:[27]
There were negotiations outside the court, there were negotiations on instructions and I went back and forth to [Mr V] to get more instructions. And he did say, for the first time ever, that I recall, he did say can they contact me in a public place instead and I think he mentioned Queanbeyan shops or whatever. And I did put that to the other side and the other side said no, and in a way I can understand why, because there were existing domestic violence orders between the parties and there were very serious allegations against [Mr V] regarding the child. That was the first time - and that was only in the context of saying no, the only place available is Ohana Services which is a professional centre that provides this service for a fee.
[26] Transcript of proceedings before Original Tribunal page 26
[27] Transcript of proceedings before Original Tribunal page 27
42.Later in the hearing, Mr Turini said that he had a “clear recollection” that the parties and their lawyers negotiated outside the Court. He and Ms Hiles were “walking back and forth” obtaining instructions. Ms Hiles suggested that the contact take place at Ohana Services. According to Mr Turini:[28]
We had no alternative for supervised contact. My email of the morning of the 15th, was to suggest to [Mr V] to come up with alternatives. We had no other alternative and it was then that [Mr V] mentioned possibly a public place and I put that to – to Ms Hiles and that was rejected.
[28] Transcript of proceedings before Original Tribunal pages 34-35
43.Mr Turini said that he explained to Mr V that Ohana was a private organisation that works for a fee and that Mr V should make “some enquiries ASAP about how it all exactly works.” Mr Turini thought they may have rung Ohana during the negotiation to find out about availability the next day.[29]
[29] Transcript of proceedings before Original Tribunal page 35
44.Earlier in the Original Tribunal hearing Mr Turini described how they “spent some time outside negotiating” and that Mr V was outside and “kept going back and forth talking to Sally Hiles … and she went back to her client and came back to and – and then we told the court what the result was…. Which was an agreement for supervised time at Ohana Services.”[30]
[30] Transcript of proceedings before Original Tribunal pages 15-16
45.Mr Turini provided to the Original Tribunal the context of the proceedings at the Court on 15 April 2016. He explained that the Judge listed the matter for consideration two days after it was filed (which was “quite remarkable”)[31] and the Judge was careful about the time he was going to spend on the matter other than in relation to the application to restrain the mother from leaving the country. Mr Turini stated that there was “very little that the judge otherwise wanted to hear” with the judge dealing with the matter on the papers. Mr Turini thought that “we obtained a very good outcome in the circumstances” and that, in his view, “it was not harmful and it was appropriate that the thing should be allowed to happen. Otherwise I would object to it.”[32]
[31] Transcript of proceedings before Original Tribunal page 11
[32] Transcript of proceedings before Original Tribunal pages 17-18
46.Mr V took issue with some of the chronology provided by Mr Turini, contending that Mr Turini spoke to the other lawyer before the hearing (but not during the hearing) and that he did not know what the lawyers were talking about.[33] Mr V told the Original Tribunal that he was at the hearing in the Court on 15 April 2016 and spoke with Mr Turini 15 minutes before the hearing was to start. They also had email communications.[34]
[33] Transcript of proceedings before Original Tribunal page 16
[34] Transcript of proceedings before Original Tribunal page 8
47.According to Mr V:
(a)Mr Turini did not tell him the “choice he would make;”[35] and
(b)he had instructed Mr Turini that he did not want to agree to supervised visits with his daughter.[36]
[35] Transcript of proceedings before Original Tribunal page 8
[36] Transcript of proceedings before Original Tribunal pages 8-9
48.However, Mr V also told the Original Tribunal that there was no problem with supervised access, but referred to supervision in different ways. For example, he referred to a meeting at McDonald’s that might be supervised because it is in a public place. There was a difference between that and a third party being paid for supervising time.[37] He said that, about an hour before the proceedings in the Court, he “made it very clear there is no paid supervised meeting”. Mr V said that he was “happy to be supervise meeting anywhere but not paid because I observe so many cases, once these paid supervising (indistinct).”[38] He repeated that he said that he wanted “certain time” not “full time” with the child in a public place (such as McDonald’s or a supermarket) because there he would not be able to act improperly to the child as had been claimed. According to Mr V, Mr Turini “never ever, ever mention the paid supervision visit.”[39]
[37] Transcript of proceedings before Original Tribunal page 18
[38] Transcript of proceedings before Original Tribunal page 19
[39] Transcript of proceedings before Original Tribunal page 20
49.In response to questions from the Original Tribunal in relation to the first email from Mr Turini on 15 April 2016, Mr V agreed that Mr Turini clearly stated that the Judge was only going to make an order for supervised contact (if he made an order at all). However, Mr Turini did not say that Mr V would have to pay for the service. Mr V described that as “the significant difference” and “a fundamental difference”, and noted that he expressed his displeasure in an email to Mr Turini on 17 April 2016.[40]
[40] Transcript of proceedings before Original Tribunal pages 73-75
50.Mr V suggested to the Original Tribunal that he consented to supervised contact at the Ohana Centre but did not understand (because it was not communicated to him) that he would have to pay a fee.[41]
[41] Transcript of proceedings before Original Tribunal page 75
51.Toward the end of the hearing, Mr V told the Original Tribunal that he remembered Mr Turini telephoning someone “during the process but he never told me the result.” He continued, “If he find out Ohana Centre is a paid centre, he should tell me it’s a paid before the hearing.”[42]
[42] Transcript of proceedings before Original Tribunal page 76
52.Having received conflicting accounts of what happened in the proceeding before the Court, the Original Tribunal asked Mr Turini and Mr V to make an oath or affirmation. Each made an affirmation and confirmed that the evidence they had given previously was true and correct,[43] and continued to give additional evidence.
[43] Transcript of proceedings before Original Tribunal page 23
53.It is significant that the transcript of the proceeding before the Court was not available to the Original Tribunal. When asked by the Original Tribunal whether he had attempted to obtain the transcript, Mr V indicated that he had not. In the subsequent exchange with the Original Tribunal, he seemed to appreciate the potential use to which the transcript might be put. At that point, the Original Tribunal clearly stated that she was proceeding on the oral and written evidence before her that day.[44]
[44] Transcript of proceedings before Original Tribunal pages 32-34
54.The Appeal Tribunal had the benefit of reading the transcript of the hearing before the Court on 15 April 2016. It covers a period of 26 minutes and commences after (but does not include) the announcement of appearances of the legal representatives. It is clear from the transcript that, among other things:
(a)on Mr V’s application, the “primary matter” before the Court was whether there should be an Airport Watch List order in relation to Mr V’s daughter;[45]
[45] Transcript of Federal Circuit Court proceedings page 3
(b)Mr Turini and Ms Hiles[46] had “a number of discussions” on 14 and 15 April 2016 in relation to the matter and had “an agreement that those orders be made”;[47]
[46] The transcript of the Federal Circuit Court proceedings incorrectly names the solicitor has Ms Hills
[47] Transcript of Federal Circuit Court proceedings page 3
(c)Mr Turini advised the Court that the parties’ lawyers agreed that restraining orders be made mutual and that the child be placed on the Family Law Watch List;[48]
(d)Mr Turini advised the Court that there was agreement that “in the meantime” (while further documents were prepared, perhaps for the next 21 days or so) Mr V “have contact, without admissions, supervised at the Ohana Family Services” and that Ohana had “availability as early as tomorrow from 10 am and also on Sunday, and my client will take all the time that is available on the Monday and the Saturday. … Two hours on each day;”[49]
(e)when asked by the Judge whether that would be an ongoing arrangement, Mr Turini referred to “allegations and counter allegations” and said that “in the future - my client would love to have unsupervised contact if he could;”[50]
(f)Ms Hiles advised the Court that, although she only had “abridged instructions” from her client who speaks very little English and although Ms Hiles had not read through the documents with her client, Ms Hiles had been able to explain the Airport Watch List order and “supervised visits, and my client is content to agree to those;”[51]
(g)Mr Turini and Ms Hiles referred to childcare arrangements that Mr V would pay for;[52]
(h)Ms Hiles submitted that the cost of any supervised contact be met by Mr V,[53] but there was no response from Mr Turini or Mr V to that submission;
(i)Mr Turini advised the Court that Mr V owns the former matrimonial home and would agree to an order that he not dispose of or deal with it until further order of the Court;[54]
(j)the Judge announced the orders “agreed between the lawyers for each of the parties” including that Mr V would spend time with his daughter for blocks of two hours “on a regular basis” through Ohana;[55]
(k)there was some discussion in response to queries from the mother via the interpreter about the frequency of the two hour sessions and the Judge said the matter would be “discussed between the lawyers and their clients outside the court, to finalise that;”[56]
(l)when Mr Turini suggested that Ohana might require orders in relation to supervised access, he acknowledged that the Court needed draft orders from the parties, and the Judge suggested that Mr Turini check with Ohana what they might need.[57]
[48] Transcript of Federal Circuit Court proceedings page 4
[49] Transcript of Federal Circuit Court proceedings pages 5-6
[50] Transcript of Federal Circuit Court proceedings page 6
[51] Transcript of Federal Circuit Court proceedings page 7
[52] Transcript of Federal Circuit Court proceedings pages 7, 12
[53] Transcript of Federal Circuit Court proceedings page 7
[54] Transcript of Federal Circuit Court proceedings pages 8, 13
[55] Transcript of Federal Circuit Court proceedings page 9
[56] Transcript of Federal Circuit Court proceedings page 11
[57] Transcript of Federal Circuit Court proceedings page 15
55.At no point during the hearing as recorded by the transcript did Mr Turini or Mr V expressly agree that Mr V would pay the costs of supervised access at Ohana, nor did either of them take issue with Ms Hiles’ submission to that effect.
56.According to Mr V, the Court would have formed the view that the parties consented to the orders “Because there is no objection from our side … we accept with silence …”[58] However, Mr V stated to the Original Tribunal, “there’s no consent.”[59]
[58] Transcript of proceedings before Original Tribunal page 11
[59] Transcript of proceedings before Original Tribunal page 11
57.At 3.20pm on 15 April 2016, after the Court proceeding concluded, Mr V sent a brief email to Mr Turini to “confirm” that the mother would come to Ohana the following day at her own expense. He continued, “There is no fee to pay to Ohana service.”
58.Mr Turini replied at 3.28pm that day. He agreed that “she will attend at her own expense” but continued “There is a fee for OHANA, have a look at the website.”
59.The written orders of the Court[60] were expressed to be made “by consent” upon application made to the Court by Mr Turini and Ms Hiles, and included:
5. The child is to spend time with the Father at regular times as supervised by Ohana Family Services at dates and times as agreed in writing between the parties.
6. The cost of any supervision of the Father’s time is to be met by the Father.
[60] Mr Turini told the Original Tribunal that he thought the orders were not made available until after 15 April 2016, possibly the following day, transcript of proceedings before Original Tribunal page 30. Mr V told the Appeal Tribunal that the Court orders made on 15 April 2016 were delivered that same day, transcript of proceedings before Appeal Tribunal page 48
60.On 17 April 2016, after visiting his daughter that day,[61] Mr V sent an email to Mr Turini responding to and commenting about specific orders made by the Court. Relevant to the present issues he wrote:
I am disappointed of the order made on 15/4/15.
My instruction was not reflected. I made it very clear that I can meet [daughter] at a public place, like McDonald or KFC. I could drive to there and her mother can look in a distance.
I agreed to go to the family center I thought it was a charity facility without fees. I mentioned in the court waiting area with you that I do not want to pay a fee to see my daughter it would become a precedent.
Meeting in a public place has always been my proposal – …
Now, the order says the cost of supervision of the Father’s time is to be met by the Father. (Errors in original)
[61] Transcript of proceedings before Appeal Tribunal page 48
61.On the basis of the evidence before the Appeal Tribunal, most of which was available to the Original Tribunal, I am satisfied that:
(a)the main objective of the Court proceedings on 15 April 2016 was to restrain Mr V’s wife from taking their daughter out of Australia by having her name put on the Airport Watch List;
(b)Mr Turini advised Mr V in writing before the matter was mentioned in the Court that the Court:
(i) would not make orders that day that Mr V spend unsupervised time with his daughter; and
(ii) might make orders that Mr V have supervised time with his daughter, but Mr V and his lawyer would need to arrange an appropriate supervisor to assume responsibility of that role;
(c)Mr V expressed and maintained a desire for unsupervised access to his daughter, queried the need for a supervisor, and expressed a desire that any supervised access be in a public place;
(d)despite Mr V’s preferences, and against the background of allegations against him and his wife’s refusal to agree to contact in a public place, the lawyers negotiated supervised arrangements to ensure that Mr V had access to his daughter almost immediately in a supervised environment;
(e)the option of Ohana as the venue was raised during those negotiations and appeared to be the only place available that satisfied both parties;
(f)the lawyers understood that the Ohana service was not a free service and that someone would have to pay to use it;
(g)Mr V maintained his position that he wanted to meet his daughter in a public place at no cost, but agreed to supervised arrangements at Ohana as the only option agreed by both parties;
(h)although Mr V was disappointed with the Court’s order that he pay for the Ohana service (because he did not want to pay a fee to see his daughter), the requirement for a fee to be paid to Ohana was mentioned during the negotiations outside the Court and was the price of Mr V obtaining immediate and regular access to his daughter while other matters (including allegations against him) and a Domestic Violence Order remained active.
62.The evidence referred to above gives some sense of the pace with which the Court proceedings progressed and the conduct of negotiations in less than ideal circumstances of limited time, emotional stress and language difficulties. Mr V made clear his preferences for the circumstances in which he could meet with his daughter. He was advised before the hearing that would not have unsupervised access to his daughter. The negotiations proved that advice correct.
63.Although Mr V was reluctant to accept the requirement for him to pay for the Ohana services, I am satisfied that he was aware of it and knew it was necessary at the time the proposed orders were put to the Court.
Corporal punishment and violence
64.Mr V contends that Elringtons:
(a)failed to raise with the Judge that the mother should not apply corporal punishment when disciplining the child; and
(b)failed to inform the Court of allegations of violence by the mother against his daughter;
and that the Original Tribunal erred by not giving reasons on the question of whether Mr Turini raised allegations of violence by the mother against his daughter with the Court.
65.The evidence about the corporal punishment issue can be set out briefly. Mr Turini’s email at 8.51am on 15 April 2016 stated:
I will also ask that the Judge make orders that your wife not apply corporal punishment when disciplining child.
66.Mr V’s email in reply at 9.47 am stated:
Of course, no corporal punishment to [daughter] should also be included.
67.There was limited evidence about this issue from Mr Turini at the hearing before the Original Tribunal. The following exchange occurred when he was asked by Mr V whether he mentioned to the Court that there be no corporal punishment:[62]
MR TURINI: No, well ---
MR V:He didn’t mention that. He wrote in the emails saying he will mention that but didn’t speak anything. That is (indistinct) didn’t speak anything.
MR TURINI: My recollection is that I mentioned it but anyway, I say it again …
[62] Transcript of proceedings before Original Tribunal page 17
68.Mr Turini then described the context of the proceeding before the Court which was listed two days after the application was filed. The Judge was being very careful about the time he was going to spend on the matter other than in relation to the application to restrain the mother from leaving the country.[63]
[63] Transcript of proceedings before Original Tribunal page 17
69.Later Mr Turini said, “My recollection is that I have [mentioned corporal punishment], but I don’t have a note that I have. But my recollection is that I did.”[64]
[64] Transcript of proceedings before Original Tribunal page 23
70.The transcript of the Court proceeding shows that at no point during the proceeding as recorded did Mr Turini seek any order about not applying corporal punishment to the child. Nor did he expressly advise the Court of the allegations against the girl’s mother.
71.In his email to Mr Turini dated 17 April 2016, Mr V also raised this issue. He wrote:
I could see you were preoccupied with other matters and did not prepared well … and forgot to mention no corporal punishment to [daughter].
72.However, there is evidence in two forms that the Court had notice of the allegation against the mother that she had been violent toward the child:
(a)a Notice of Risk, prepared by Mr Turini and filed with the Court on 13 April 2016, alleged that the child had been abused, set out particulars of alleged instances of the mother’s violence to the child, set out the basis for alleging that the child was at risk of being abused by the mother, and stated that the allegations had been reported to the police and the Child Protection Service in March 2016. The notice also alleged that the child was at risk because the mother could leave for China at any time without a visa and Mr V was concerned that she might take the child out of Australia to China.
(b)when responding to the Court’s questions whether the supervised access would be an “ongoing arrangement,” Mr Turini said:[65]
Well hopefully – the thing that was unclear to me - and I knew when I mentioned to you what your Honour position will be to be able to arrange some kind of counselling. The difficulty … two versions. We now already know that the allegations and counter allegations, which are of - not of great assistance to your Honour, but more established arrangements in the future - my client would love to have unsupervised contact if he could. (emphasis added)
[65] Transcript of Federal Circuit Court proceedings page 6
73.Mr V gave evidence to the Original Tribunal that during the hearing he wrote things on a piece of paper which he gave to Mr Turini to “ask him to say” but that “he just didn’t say anything.”[66] When this was put to Mr Turini later in the hearing, he remembered Mr V doing that, but rejected the proposition that he said nothing to the judge. He readily acknowledged that, one year after the event, he could not recall what he said, but noted that he had to present his case and he did.[67]
Consideration
[66] Transcript of proceedings before Original Tribunal Page 9
[67] Transcript of proceedings before Original Tribunal pages 31-32
74.On the basis of the evidence referred to above, I am satisfied that:
(a)Mr Turini did not raise the corporal punishment issue with the Court on 15 April 2016;
(b)Mr Turini alluded to but did not expressly raise allegations of violence by the mother with the Court on 15 April 2016, but the allegations were before the Court in the form of a Notice of Risk.
75.My conclusions in relation to the supervised access arrangements are set out at [61]-[63] above.
76.Accordingly, I find that some of the grounds specified in Mr V’s amended grounds of appeal have been made out.
77.In reaching that conclusion, I do not find that Mr Turini lied under oath to the Original Tribunal or tried to mislead the Original Tribunal. The transcript of his oral evidence shows that he was careful to qualify his answers where he did not have a clear recollection of what occurred at a relatively brief proceeding before the Court some 18 months previously. He stated that he did not have a written record of the negotiations at the Court. I am satisfied that the qualifications which he put on his answers were appropriate. They were a means by which a busy legal practitioner described to the best of his recollection the earlier events. In other words, in making the findings outlined above, I am satisfied that Mr Turini’s oral evidence was appropriate and truthful.
78.As previously noted, there are two components of this part of Mr V’s case:
(a)whether the evidence before the Appeal Tribunal (some of which was not before the Original Tribunal) establishes that Mr Turini did not act on Mr V’s instructions in relation to supervised access by Mr V to his daughter, did not advise the Court about allegations of violence by the mother against the child or about the corporal punishment issue; and
(b)whether, if Mr Turini did not act on instructions in relation to supervised access and did not advise the Court about the violence allegations and corporal punishment issue, the Original Tribunal made errors of fact and, as a consequence, Mr V’s appeal should succeed.
79.Having made findings in respect of the first component, I turn now to the issue whether, despite the fact that Mr Turini did not expressly raise some specific matters with the Court on 15 April 2016, the appeal should fail.
80.Ms Aidman submitted that, rather than looking at specific incidents in and around the Court proceedings, the Original Tribunal looked at the event as a whole and the purpose of the urgent listing of Mr V’s application.
81.In the course of her reasons for decision, the Original Tribunal stated:[68]
In regard to the next specific allegation which was really a cluster of allegations about what happened at the Federal Court on 15 April 2016, Mr Torini described how the interim hearing of [Mr V’s] application was listed on very short notice. In my experience and Mr Torini’s evidence, it’s consistent with Mr Torini’s evidence. At an interim hearing in a family law children’s matter, the issues a court is able to determine are strictly limited due to constraints of time and the evidence available. Proceedings and negotiations on the day seem to be stressful and fast moving, especially given that they involve the issue of utmost importance to any parent, and that is the welfare of their children. Even when the proceedings are resolved by consent or compromise as they were in this case, parties will often find the process stressful and unsatisfactory. However, bearing in mind those pressures that apply particularly, to clients and to parties in these sorts of proceedings. On the balance of evidence, I prefer Mr Torni’s evidence to that of [Mr V’s] as being more consistent and logical and find that he did act in accordance with [Mr V’s] instructions on that day.
In particular, I had regard to my finding that Mr Torini prior to [Mr V] with written advice, on the day warning [Mr V] as to the likely outcome of a contested hearing (indistinct) and in particular that [the Judge] was unlikely to order unsupervised contact in light of the mother’s serious allegations against [Mr V], which had yet to be determined and would not finally be determined for some time. There was nothing to suggest, apart from [Mr V’s] evidence, of oral testimony, that he rejected Mr Torini’s advice at that time. I also had particular regard to the email that [Mr V] sent to Mr Torini on 17 April, just two days after the hearing, which I found to be contradictory.
On one hand [Mr V] complained that his instructions were that he would only consent to unsupervised contact with [daughter] in a public place, but later in the email admitted that, I agreed to go to the family centre, but I thought that it was a charity facility without fees. (Errors in original)
[68] Transcript of proceedings before Original Tribunal on 4 October 2017 pages 7-8
82.It is apparent from that passage that the Original Tribunal had regard to the written and oral evidence before her and, on the basis of that evidence and her assessment of the witnesses, made findings.
83.My earlier assessment of Mr Turini’s oral evidence is drawn from the transcript of proceedings before the Original Tribunal and the Court, as well as the submissions made by Mr V and Ms Aidman. Unlike the Original Tribunal, I did not have the benefit of hearing and observing Mr Turini. Accordingly, unlike the Original Tribunal, I was unable to evaluate his credibility based on direct observation. Nor was I able to compare Mr Turini and Mr V as witnesses. For that reason, I had a more limited sense of the “feeling” of the case.
84.There is nothing in the reasons for decision of the Original Tribunal to indicate that she had any concerns about Mr Turini’s credit as a witness. As the authorities referred to earlier state, an appeal tribunal should be reluctant to overturn findings of fact based on the assessment of witnesses. The findings of the Original Tribunal are consistent with my assessment of the written record of the oral evidence. To the extent that the Original Tribunal made findings about these matters based on Mr Turini’s oral evidence and her impression of him as a witness, I am satisfied that the Original Tribunal made no error.
85.Elringtons submitted that the Original Tribunal’s failure to comment directly upon the allegations of violence by the mother did not disclose an error of law by the Original Tribunal. In its submission:
(a)Mr V’s Family Law matter was listed urgently on a very narrow ground (the placement of his child on the Airport Watch List);
(b)at the time of the hearing, Mr V’s estranged wife (his child’s mother) had made allegations about his behaviour in relation to their child;
(c)Mr Turini was able to obtain limited Court orders that achieved Mr V’s primary objective;
(d)the Original Tribunal provided lengthy commentary with respect to the conduct of the interim Court hearing; and
(e)the Original Tribunal gave reasons for finding that Mr Turini acted in accordance with Mr V’s instructions including that the interim hearing was listed at short notice, in these circumstances the issues that a court is able to determine are strictly limited (due to constraints of time and available evidence), and such proceedings are fast moving but involve matters of utmost importance to any parent.
86.I am satisfied from the evidence summarised above that the Court had information before it of allegations of violence. I note that it is by no means certain that the mention of the corporal punishment issue would have made any difference to the Court’s orders. It is not clear whether the mother would have consented to an order to that effect, and it appears unlikely that, in the circumstances of the preceding of 15 April 2016, the Court would have made an order other than with the consent of both parties. However, for the purposes of this appeal, it is neither necessary nor appropriate to speculate about that.
87.I am satisfied that:
(a)it was appropriate for the Original Tribunal to take a generally holistic approach to what occurred before and during the proceedings before the Court on 15 April 2016;
(b)the conclusion reached by the Original Tribunal was supported by the evidence available to her; and
(c)the additional evidence provided to the Appeal Tribunal (primarily the transcript of the proceedings before the Court and the additional email correspondence between Mr V and Elringtons) provides a more complete picture of the circumstances surrounding and during those proceedings but does not lead to a different outcome. Indeed the additional evidence confirms the impression formed by the Original Tribunal.
88.For completeness, and in light of the authorities cited earlier in these reasons for decision, I note that I am not satisfied that the Original Tribunal acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect her, mistook material facts, failed to take into account some material consideration, or otherwise fell into error of law. Consequently, these grounds of appeal in relation to Mr Turini’s actions at the Court proceedings must be dismissed.
Calculating the value of Mr V’s time
89.Mr V points to an alleged error by the Original Tribunal in stating that he did not provide evidence at that hearing of his hourly rate as an interpreter.[69] He refers to the transcript of the hearing which records him giving evidence about his ordinary hourly rate and the higher rate for higher level work for Parliament.[70] That information was provided so that the Original Tribunal could calculate the monetary value of the time he wasted in travelling to Ohana to meet with his daughter when she was unavailable to meet him, but Elringtons had not forwarded to him the message from Ms Hiles about the cancelled arrangement.
[69] Transcript of decision of Original Tribunal page 10
[70] Transcript of proceedings before Original Tribunal page 51
90.Mr V’s evidence to the Original Tribunal was that:[71]
(a)on 24 May 2016, he applied for flexitime for the next day for the purpose of seeing his daughter;
(b)he had arranged to have half a day off work for the scheduled visit, which was outside the normal arrangement for meetings on a Saturday and Sunday;
(c)he went to work in the morning of 25 May 2016 and left during his lunchtime to meet with his daughter;
(d)he attended Ohana and was told that his daughter was not there;
(e)despite the meeting not proceeding, he had not returned to work that afternoon because he was “just too overwhelmed with all because I was with such a high expectation so emotionally it’s not credible to go back to work”;
(f)had he been told on 24 May of Ms Hiles’ message about the cancelled appointment, he would have not taken half day of work for the sole purpose of meeting his daughter;
(g)had he been advised on the morning of 25 May about the message, he would have stayed at work and would not have used his flexitime to take time off work that afternoon from noon until 5.00pm.
[71] Transcript of proceedings before Original Tribunal pages 36-38, 43-44, 48, 52
91.Mr V explained that, although the scheduled meeting was for two hours, he took five hours of leave to allow time for travel and because of the mental stress of such visits.[72] He needed time after a visit for “emotional adjustment”, and it was “impossible to go back to work after that.” For that reason, visits usually occurred on the weekend.[73]
[72] Transcript of proceedings before Original Tribunal page 47
[73] Transcript of proceedings before Original Tribunal page 51
92.Mr V claimed to have suffered financial loss on the basis that, had he not used the flexitime for the purpose of visiting his daughter on 25 May 2016, he could have saved up the time and potentially used it if he was offered an interpreting job. Alternatively, he could have used time away from his workplace “to do productive work to accumulate knowledge and skills in my related work.”[74] He calculated his financial loss to be a minimum of $600.00, being five hours at $120.00 per hour which is his usual rate to provide interpreting services.[75] He estimated that his hourly rate as an employee in a government department was about $45-$50 per hour.[76]
[74] Transcript of proceedings before Original Tribunal page 50
[75] Transcript of proceedings before Original Tribunal page 53
[76] Transcript of proceedings before Original Tribunal page 54
93.Ms Aidman submitted that:
(a)the five hours of flexitime taken by Mr V was unnecessary for a two hour visit with his daughter;
(b)he was paid for the period of his absence from work; and
(c)there was no evidence to demonstrate how else the time could have been applied or what actual loss was incurred (including any loss of opportunity).
Accordingly, she submitted, it is extremely difficult to quantify any actual loss suffered by Mr V.[77]
[77] Transcript of proceedings before Original Tribunal
94.However, the Original Tribunal found that, as a consequence of a lack of due care and skill on the part of Elringtons (which she described as “an isolated and relatively minor lapse in the context of generally competent and careful service”[78]), Mr V suffered some inconvenience, including the wasted trip to Ohana. Consequently, the Original Tribunal awarded him the sum of $67.55.
[78] Transcript of reasons for decision of Original Tribunal page 9
95.That sum was calculated on the basis that:[79]
(a)Mr V did not have to take the whole afternoon off work (although he did so);
(b)Mr Turini could not have foreseen that Mr V would take the whole afternoon off work, but could have foreseen him taking at least two hours had the meeting occurred (allowing time to travel 20 kilometres to and from Ohana and an hour for the contact visit);
(c)it was reasonably foreseeable that if the meeting was cancelled and Mr V was not notified beforehand, he would have lost approximately an hour (being his lunch break) travelling to Ohana and returning to his workplace;
(d)accordingly, no allowance would be made for loss of income, loss of productivity or loss of benefit of flexitime;
(e)the only loss Mr V suffered was wear and tear on his vehicle (which he did not specifically claim and about which he provided no evidence) that, by reference to Australian Taxation Office rates for deductions for travel expenses, was calculated at $26.40;
(f)the non-pecuniary loss for Mr V’s inconvenience was limited to inconvenience of driving to and from Ohana and the loss of his lunch hour calculated at $41.15 (an amount which was expressly not his income, but was calculated by reference to the full-time adult average weekly wage for ordinary time).
[79] Transcript of reasons for decision of Original Tribunal pages 9-11
96.The Original Tribunal expressly did not find that, if Mr V took the afternoon off work, that absence from work directly caused the loss of income he claimed by reducing his availability to earn extra income as an interpreter. Consequently, the amount he earned as an interpreter was not relevant to the outcome of the case.
97.I am satisfied that the Original Tribunal did not make any error of fact or law in reaching that conclusion. The amount of the award for inconvenience to Mr V stands.
Mr Turini’s email address
98.Mr V raised an issue about Mr Turini’s email address at Elringtons which related to the failure of Elringtons to inform him of the cancellation of a meeting with his daughter scheduled for 25 May 2016.
99.Mr V stated that, on previous occasions, the emails from Ms Hiles about changes of times and other things had been passed on to him. On this occasion, the message was not sent to him.[80]
[80] Transcript of proceedings before Original Tribunal page 46
100.It is appropriate to set out the chronology of events around the cancelled meeting.
101.At 4.53pm on Tuesday 24 May 2016, Ms Hiles sent an email to Mr Turini conveying instructions that she had received that “the visit tomorrow is not able to go ahead as [daughter] is still sick. My client will obtain a medical certificate. I also attach a medical certificate for the missed visit on the weekend.”
102.Mr Turini said that the email was addressed only to him. It was not copied to his office. He receives 60 to 70 emails each day and did not notify Mr V before the scheduled visit. He thought that he told Mr V about it on 25 May 2016, when Mr V contacted him. Mr Turini had a file note of speaking to Mr V at 2.15pm on that day. He then forwarded the email to Mr V.[81]
[81] Transcript of proceedings before Original Tribunal pages 39-40
103.The documentary evidence shows that at 2.19pm on 25 May 2016, Mr Turini sent an email to Mr V in which he referred to “our discussion” and enclosed “the email I got from the opposing solicitor as you can see at 4.53pm.”
104.Mr Turini gave evidence to the Original Tribunal that:[82]
(a)the normal practice is not to include lawyers in communications about changed arrangements of this type, but to contact a firm’s email and the message would go to the personal assistants to avoid the risk of the message not being passed on, as occurred in this case;
(b)some people have his “private email” but “we try to make … the point that the emails also go to my … personal assistant”; and
(c)he has “my email” on his business card, and he agreed that it might be the only email address that Ms Hiles had.
[82] Transcript of proceedings before Original Tribunal pages 39, 44-45
105.At the appeal hearing, Ms Aidman submitted that Mr Turini received the email from Ms Hiles late on 24 May 2016, was not aware of it until Mr V rang him on 25 May 2016, and then apologised and forwarded the email to Mr V.[83] She also submitted that:
(a)the email came via an unconventional channel;
(b)the delay in forwarding an email of that nature did not amount to a breach of a duty of care; and
(c)there was no harm to Mr V as a result of the delay in Mr Turini forwarding the communication.[84]
[83] Transcript of proceedings before Original Tribunal page 83
[84] Transcript of proceedings before Original Tribunal pages 83-84
106.In the reasons for decision the Original Tribunal stated:[85]
It’s also not unusual for changes to contact to be made at short notice, due to illness or other unforeseen circumstances. In which case, there must be a system in place to ensure timely communication of that information between the parties through the respective legal representatives. I find that it was foreseeable that Mr Torini as a director of a busy practice, may not become aware of an urgent email sent directly to his email address, until it was too late. But, he had been communicating with the mother’s solicitors by his personal email about changing contact arrangements, and the problem that arose on 25 May, could have been avoided by a simple (indistinct) of requiring all such correspondence to be directed, or at least copied to Mr Torini’s support staff, so that they could notify [Mr V] without delay of any changes at short notice. (Emphasis added)
[85] Transcript of reasons for decision of Original Tribunal page 9
107.On appeal, Mr V submitted that the Original Tribunal acknowledged that the email address used by Mr Turini was his ‘personal email’ and that the finding reflected Mr Turini’s evidence to the Original Tribunal.[86] Mr V referred to Mr Turini’s “distortion at the ACAT hearing on 18 September 2017,” and submitted that it never was Mr Turini’s personal email. Hence, Mr V pointed to an error in the reasons for decision of the Original Tribunal.
[86] See transcript of proceeding before Original Tribunal page 44
108.Ms Aidman described the issue as simply a definitional disagreement. Mr Turini has a direct email address at Elringtons. The email sent by Ms Hiles to him at that address was not copied to any other person.[87]
[87] Transcript of proceedings before Appeal Tribunal pages 23-24
109.I am satisfied that, at most, Mr Turini’s evidence and the Original Tribunal’s description of the email address as “personal” is ambiguous. Mr Turini’s business email address was direct to him rather than to the firm. In that sense, it was personal to him.
110.For present purposes nothing turns on this. The sequence of events is not in dispute and the Original Tribunal found that:
(a)it was foreseeable that Mr Turini might not become aware of an urgent email sent directly to his email address before it was too late;
(b)the problem that arose on 25 May 2016 could have been avoided by requiring all such correspondence to be directed, or at least copied, to his staff;
(c)Elringtons did not exercise due care and skill in relation to that incident and failed to convey urgent information in a timely manner;
(d)this isolated and relatively minor lapse in the context of generally competent and careful service caused Mr V some inconvenience, including the wasted trip to Ohana;
(e)an award of $67.55 to Mr V was appropriate.[88]
[88] Transcript of reasons for decision of Original Tribunal pages 9-11
111.In relation to this ground of appeal there is nothing on which the Appeal Tribunal has to rule.
Criticisms of aspects of Elringtons’ invoices
112.Mr V referred to the large non-legal work fees relating to Ohana’s business that he was charged which stemmed, he contended, from the “negligence and/or misconduct” of Elringtons. In particular, he raised issues concerning invoices rendered to him by Elringtons in relation to the $5,500.00. He submitted that the matter was not looked into at the hearing before the Original Tribunal. Because the service that Elringtons provided after 15 April 2016 was “not on the course of my instruction,” he was charged for a “lot of non-legal works (changing of visiting times, etc),” and the tax invoices sent to him were “inconsistent” in their itemised entries for services on specified days,[89] yet the total charged in each was the same, $5,500.00. Mr V specifically noted that there were no entries about the incidents on 24 and 25 May 2016 when Elringtons failed to advise him that his daughter would not be at Ohana which resulted in a “wasted trip and severe mental stress.” Mr V described the itemised list as “baseless,” “fabricated… fraudulent and/or exaggerated.”
[89] One invoice showed 12 occasions when Elringtons did not charge him for services, and another showed one such occasion
113.There are at least four answers to Mr V’s submissions. First, as Ms Aidman observed, the fee arrangement between Elringtons and Mr V, which was in evidence before the Original Tribunal,[90] allowed the firm to charge for other services. It is worth repeating that, at the hearing of the appeal, Mr V volunteered that after the Court proceeding Mr Turini was involved in a lot of non-legal work (including in relation to changed meeting times) as Mr V could not speak to the other party because there was a Domestic Violence Order against him.[91]
[90] Attachment A to Mr Turini’s witness statement dated 7 June 2017
[91] Transcript of proceedings before Appeal Tribunal page 35
114.Second, as Ms Aidman explained, the differences between the formats of the final invoices were the result of merging the itemised invoice through the firm’s computer system, and the discrepancy between accounts was because a $25.00 conduct money fee was refunded after Mr V ceased to be a client of Elringtons, bringing the amount owed by Mr V to $5,475.00.
115.Third, Mr Turini gave evidence to the Original Tribunal that the accounts had been discounted by him before invoices were sent to Mr V.[92] The total discount applied to each invoice and the total amount owed by Mr V was always the same. The invoice to Mr V dated 29 July 2016[93] shows that no charge was made for the phone call on 25 May 2016.[94] Yet, at the hearing of the appeal, Mr V appeared to criticise the absence of that incident on the invoice.[95]
[92] Mr Turini’s witness statement dated 7 June 2017, transcript of proceedings before Original Tribunal page 41
[93] Annexure D to Mr Turini’s affidavit dated 7 June 2017
[94] Transcript of proceedings before Original Tribunal page 42
[95] “I don’t know why this incident was not there. This incident happened. How do they do the bill? Transcript of proceedings before Appeal Tribunal page 35
116.Fourth, and more significantly for present purposes, Mr V’s concerns about those aspects of the accounts were not a matter considered by the Original Tribunal. He alluded to them briefly at the start of the hearing before the Original Tribunal but then “let it go”.[96] As noted earlier, this appeal was conducted as a review of the original decision rather than as a new application.[97] Because the Original Tribunal made no findings in relation to those invoices, complaints about them are not properly the subject of this appeal. The concerns raised by Mr V about the form of, and individual items in, particular invoices are not matters on which the Appeal Tribunal should rule. There is, however, no evidence that the invoiced items were baseless, fabricated, fraudulent or exaggerated.
Date from which interest is calculated
[96] Transcript of proceedings before Original Tribunal page 3
[97] See ACT Civil and Administrative Tribunal Act 2008 section 82
117.Mr V submitted that the Original Tribunal erred in calculating interest beyond 11 July 2017. According to Mr V, Elringtons failed to attend the Tribunal hearing scheduled for 11 July 2017 without any advance notice to the parties involved. Mr V attended that hearing. Another date was set for the hearing and, although he was severely sick on that occasion, he was reluctant to put off the hearing of the case to another day. He submitted that:
(a)had Elringtons attended the hearing on 11 July 2017, he would not have suffered the difficulties in putting his case that he did on the subsequent date; and
(b)he should not be punished by being ordered to pay interest beyond 11 July 2017.
118.Elringtons note that the matter was listed for hearing on 11 July 2017. Due to Elringtons’ unavailability, that date was vacated. The matter was next listed on 29 August 2017. Due to Mr V’s unavailability, that date was also vacated. The hearing was held on 18 September 2017 and the decision was delivered on 4 October 2017.
119.Elringtons submit that there is no legal foundation in Mr V’s assertion that the Original Tribunal erred in calculating interest up to the judgment date and further submits that the Original Tribunal was correct in calculating interest in accordance with Schedule 2 of the Court Procedures Rules 2006 up to 4 October 2017.
120.In the absence of any evidence about why Elringtons was unavailable on 11 July 2017, it is not possible to make an adverse finding in relation to the firm. Consequently, there is no basis for the Appeal Tribunal to vary the decision of the Original Tribunal in relation to the period for which interest is payable by Mr V.
Conclusion and Order
121.For the reasons given in relation to each of the matters raised on appeal, Mr V has not made out an error of fact or law, either at all or relevant to the result of the hearing before the Original Tribunal.
122.Consequently, the appeal is dismissed.
………………………………..
President G Neate AM
HEARING DETAILS
FILE NUMBER:
AA 40/2017 (XD 323/2017)
PARTIES, APPLICANT:
V
PARTIES, RESPONDENT:
Elringtons Pty Ltd
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
N/A
SOLICITORS FOR APPLICANT
N/A
SOLICITORS FOR RESPONDENT
Elringtons Pty Ltd
TRIBUNAL MEMBERS:
President G Neate AM
DATES OF HEARING:
12 February 2018
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