Walles v VLSC - [2022] VSC 435

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 04802

Between:
SHIMON ELIYAHU WALLES	Plaintiff
-and-
VICTORIAN LEGAL SERVICES COMMISSIONER	First Defendant
-and-
BREE KNOESTER	Second Defendant

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 November 2021
DATE OF JUDGMENT:	8 August 2022
CASE MAY BE CITED AS:	Walles v VLSC
MEDIUM NEUTRAL CITATION:	[2022] VSC 435

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JUDICIAL REVIEW — Where, following settlement of SW’s civil action, SW’s solicitor claimed solicitor/client costs in excess of amount specified in conditional costs agreement — Where SW complained to VLSC about solicitor concerning costs and conduct matters — Where VLSC decided to cease dealing with costs complaint and that disciplinary complaint would be closed — Where SW seeks certiorari in respect of VLSC’s decisions — Whether decisions amenable to certiorari — Whether decisions have discernible or apparent legal effect upon SW’s rights — Where SW alleges that VLSC’s decisions affected by illegality, bad faith, bias or apprehended bias, factual errors, absence of evidence, failure to investigate allegations of non-disclosure, failure to act compatibly with human rights, failure to take account of relevant considerations — Whether any grounds established — Application dismissed — Legal Profession Uniform Law.

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Appearances:	Counsel	Solicitors
For the Plaintiff	In person	N.A.
For the First Defendant	Mr R Kruse	Victorian Legal Services Commissioner
For the Second Defendant	Mr T Smyth	Moray & Agnew

HIS HONOUR:

OVERVIEW

While a student at Yeshiva College, Shimon Eliyahu Walles was sexually assaulted on multiple occasions by a rabbi, David Kramer. Some years later, after being extradited to Victoria from the United States of America, Rabbi Kramer was convicted at the County Court and sentenced to imprisonment for indecently assaulting several students of the college.

Mr Walles brought a proceeding for damages against the college in this Court. He was traumatised by the sexual abuse. It has had a profoundly damaging impact on his life.

The civil action settled following a mediation in September 2018. Among the terms of settlement was that the college pay Mr Walles $540,000, plus costs and disbursements.[1]
[1]Under the terms of settlement, the “agreed sum” (which included the payment of $540,000 plus costs and disbursements) was to be “kept in strict confidence” by the parties, “except to the extent that disclosure is required by law”. In order to make his complaint to Victorian Legal Services Commissioner, and in making his application to this Court, it was necessary for Mr Walles to disclose the agreed sum.

On 13 September 2019, Mr Walles made a complaint to the Victorian Legal Services Commissioner (“the VLSC”) against Bree Knoester, his former solicitor. Ms Knoester, who was then a solicitor at Adviceline Injury Lawyers, had been engaged to represent Mr Walles in his action for damages. The complaint to the VLSC was generally described as including a costs dispute and conduct issues. It constituted a mixed complaint containing both a “consumer matter” and a “disciplinary matter”,…

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: [2022] VSC 435
Decision Date: 8 August 2022

CaseChat Overview and Summary

The case of Walles v VLSC involved the applicant, Walles, who sought judicial review of decisions made by the Victorian Legal Services Commissioner (VLSC). Following the settlement of a civil action, Walles’ solicitor claimed costs in excess of the amount specified in their conditional costs agreement. Dissatisfied with the outcome, Walles complained to the VLSC regarding both the costs and conduct of the solicitor. The VLSC subsequently decided to cease dealing with the costs complaint and to close the disciplinary complaint without further action. Walles sought a writ of certiorari to review these decisions by the VLSC.

The primary legal issues the court had to address were whether the VLSC's decisions were amenable to judicial review under the grounds of certiorari and whether these decisions had a discernible or apparent legal effect upon Walles’ rights. Additionally, Walles alleged that the VLSC’s decisions were affected by various procedural and substantive errors, including illegality, bad faith, bias, factual errors, absence of evidence, failure to investigate, and failure to act in accordance with human rights. The court was required to determine if any of these grounds were established to warrant the issuance of the writ of certiorari.

In delivering the judgment, the court found that the VLSC’s decisions were not amenable to judicial review via certiorari as they did not have a discernible or apparent legal effect on Walles’ rights. The court emphasised that for a decision to be subject to certiorari, it must result in a legal consequence that affects the applicant’s rights or obligations. The court further concluded that none of the grounds alleged by Walles, such as illegality, bad faith, or procedural errors, were substantiated to the extent that they would warrant the court intervening through certiorari. Consequently, the application for judicial review was dismissed.

The court did not issue any further orders beyond dismissing the application for judicial review. The decision underscores the stringent criteria required for judicial review under the grounds of certiorari, particularly concerning the necessity of a discernible or apparent legal effect on the applicant's rights.

Orders