Hamilton v Russell Kennedy (a firm) & Anor [2010] VSC 81 (5 March 2010)


IN THE SUPREME COURT OF VICTORIA		Not Restricted

JULIAN ROHAN HAMILTON	Appellant

v

RUSSELL KENNEDY VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL	Firstnamed Respondent Secondnamed Respondent

JUDGE:	ROBSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 March 2010
DATE OF JUDGMENT:	5 March 2010
CASE MAY BE CITED AS:	Hamilton v Russell Kennedy & Anor
MEDIUM NEUTRAL CITATION:	[2010] VSC 81

APPEARANCES:	Counsel	Solicitors
For the Appellant	In person	-

For the First Respondent	Mr A F Hamlyn-Harris	Russell Kennedy

For the Second Respondent	No appearance	-

1 On 14 February 2008, Senior Member Howell of the Victorian Civil and Administrative Tribunal (‘VCAT’) made orders in proceedings between Mr Julian Rohan Hamilton and his brother Alan Hamilton, of the one part, and Russell Kennedy, solicitors, of the other part, concerning the quantum of costs payable under a legal costs agreement that was signed by Russell Kennedy, on the one part, and Alan Hamilton, on the other part. I have expressly not commented on who the agreement was actually between as that is still a matter that may be an issue between the parties.

2 On 20 June 2008, Mr Rohan Hamilton took fresh proceedings in VCAT challenging the validity of the costs agreement.[1] Russell Kennedy applied to strike out the fresh proceeding as hopeless.

3 On 11 December 2008, Senior Member Vassie of VCAT ordered that Mr Hamilton's fresh application to VCAT of 20 June 2008 be struck out pursuant to s 75 of the Victorian Civil and Administrative Tribunal Act 1998. Generally speaking, he did so on two grounds. First, he said that the decision on the quantum of the legal costs carried with it an implied finding that the agreement was binding and therefore, having that issue decided, an estoppel was raised against Mr Rohan Hamilton, as he was made a party to the proceedings. Secondly, Senior Member Vassie said that even if there was no estoppel, the Anshun principle would apply and for those reasons the proceedings were bound to fail and ought to be struck out.

4 On 23 February 2009, by originating motion, Mr Hamilton sought leave to appeal against the decision of Senior Member Vassie of VCAT, that appeal being to the Supreme Court of Victoria. On 26 November 2009, Lansdowne AsJ gave limited leave to Mr Hamilton to appeal against the order of Senior Member Vassie striking out his application on 20 June 2008 with reasons. She expressly indicated that the notice of appeal should comply with her reasons.

5 On 3 December 2009, Russell Kennedy appealed against the orders of Lansdowne AsJ made on 26 November 2009. On 10 December 2009, Mr Hamilton filed a notice of appeal against the orders of Senior Master Vassie, purportedly pursuant to the leave granted by Lansdowne AsJ.

6 On 21 December 2009, the hearing of Russell Kennedy's appeal came before Davies J. On the appeal Russell Kennedy raised issues concerning the competence of the notice of appeal that had been filed on 10 December 2009 by Mr Hamilton. On 21 December 2009, Davies J referred the issues of competence of the appeal of Mr Hamilton to Lansdowne AsJ. The parties agreed that Davies J dismissed the appeal of Russell Kennedy of 3 December 2009. This agreement is reflected in the order of Lansdowne AsJ of 23 February 2010, which I will come to in a moment.

7 On 22 December 2009, Russell Kennedy issued a summons seeking an order that the notice of appeal, which Mr Hamilton had filed on 10 December 2009, be struck out for non-compliance with the orders of Lansdowne AsJ made 26 November 2009.

8 On 23 February 2010, Lansdowne AsJ ordered that the notice of appeal filed 10 December 2009 be struck out and that Mr Hamilton may seek leave to re-plead the notice of appeal. She laid out a timetable for the exchange of submissions, including submissions on an issue raised by Russell Kennedy challenging the jurisdiction of VCAT to hear Mr Hamilton’s application of 20 June 2008 and the direction to allow Mr Hamilton to seek to re-plead a notice of appeal.

9 The jurisdictional challenge raised by Russell Kennedy is as follows. Russell Kennedy contend that the application to VCAT of 20 June 2008, which Senior Member Vassie ruled on, was also bound to fail as VCAT did not have jurisdiction to entertain it because the application to VCAT could only be made by a client within the meaning of the Legal Profession Act and Mr Hamilton was not a client. Lansdowne AsJ orders provided that there by an exchange of submissions about this further ground why the second VCAT proceedings were hopeless and therefore the appeal against the decision of Senior Member Vassie should not proceed.

10 By a notice of appeal dated 26 February 2010, Mr Hamilton appeals against the orders made by Lansdowne AsJ on 23 February 2010, and I will come to what Mr Hamilton intends to challenge in a moment. The appeal is by way of a hearing de novo and in this case the appeal is against the summons issued by Russell Kennedy seeking an order that the notice of appeal be struck out for non-compliance with the order of Lansdowne AsJ made 26 November. Accordingly Russell Kennedy would normally present their case first, which they did.

11 In response, Mr Hamilton said that he took no issue with the orders of Lansdowne AsJ made 23 February 2010, save that he says that he asked her on that occasion to alter a costs order she had made when granting leave to appeal on 26 November 2009. In her order of 23 February 2010, Lansdowne AsJ suspended Orders 7 to 11, which related to the timetable for preparing for the appeal, and it was presumably in that context that Mr Hamilton sought to re-agitate the orders which appeared in Orders 12 and 13 of the order of 26 November 2009.

12 Mr Hamilton contends that Order 13 is inconsistent with the order that was made on 19 May 2009 as to costs. On 19 May 2009, Lansdowne AsJ on the application for leave to appeal, made an order that the costs of the day and 24 March 2009 (which was an earlier directions hearing in the application for leave to appeal) were costs in the application for leave to appeal.

13 When she granted leave to appeal on 26 November 2009, she had before her an application by Mr Hamilton that Russell Kennedy pay the costs of his application for leave to appeal. He contended he had been successful. In Paragraph 12 of her orders of that day Lansdowne AsJ said:

14 Now, at that stage, once she had declined Mr Hamilton’s application for the costs of the application for leave to appeal, the question of the costs in the application for leave to appeal had yet to be resolved. She then went on to order that the costs of the application for leave to appeal be costs in the appeal.

15 For my part, after listening very carefully to Mr Hamilton, I do not see any inconsistency between those orders. The application for leave to appeal had concluded on 26 November 2009. Mr Hamilton had been successful. Although it was a qualified success in terms of the draft notice he had lodged, he had been successful nevertheless, and the respondents, Russell Kennedy, had been unsuccessful. It was, however, within the Associate Justice’s discretion that his application should be declined and to order that those costs (the costs of the application for leave to appeal) should be costs of the appeal.

16 There was no appeal from the order made on 26 November 2009 as to costs. There was no appeal on the order made on 19 May as to costs. On 23 February 2010, Mr Hamilton raised the matter with Lansdowne AsJ. She came to the view, after hearing from both sides, that there was no inconsistency and she made no order varying her orders as to costs made on 26 November 2009.

17 I do not need to consider the issue whether or not she could have reopened the orders of 26 November 2009. She may have been able to do so with the slip rule. I do not need to decide that because, in my view, on the evidence before me, if I accept what is said from the Bar table by both counsel, she considered this submission and, in my view, the conclusion she came to was one open to her, that is, that there is no inconsistency between the order she made as to costs on 26 November 2009 and those of 19 May 2009.

18 Technically, this is a hearing de novo where I could, if I was asked, review all the orders that were made, but both sides have indicated they have no objection to the orders otherwise made by Lansdowne AsJ on 23 February 2010. I do not think there is any question of Russell Kennedy consenting to those orders but Russell Kennedy say that they do not object to Lansdowne AsJ’s orders otherwise being maintained. Those orders confirm that Russell Kennedy have the right in due course to argue their jurisdiction point. I do not think it is appropriate to hear it today because Lansdowne AsJ has laid down a timetable for the hearing of the point and I do not think that Mr Rohan Hamilton would be in a position to argue it today, and under the terms of the order, he was not expected to be arguing it today.

19 Accordingly, I will dismiss Mr Hamilton’s appeal and I will order that Mr Hamilton pay the costs of the appeal. Otherwise, if I must, I will (as the appeal is a hearing de novo), confirm, approve, sanction and remake the orders made by Lansdowne AsJ on 26 February, including the orders as to costs.