Kucevic v L N Christie & Co [2019] VSC 489 (18 July 2019)

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EDISA KUCEVIC	Plaintiff

v

L N CHRISTIE & CO.	Defendant

JUDGE:	Cavanough J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 July 2019
DATE OF JUDGMENT:	18 July 2019 (ex tempore – revised)
CASE MAY BE CITED AS:	Kucevic v L N Christie & Co.
MEDIUM NEUTRAL CITATION:	[2019] VSC 489

ADMINISTRATIVE LAW – Application for extension of time to apply for leave to appeal pursuant to the Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148 – Litigant in person – No evidence providing explanation for delay - Claim at VCAT against former solicitor as to legal fees paid – Claim dismissed by VCAT - Whether VCAT erred in failing to take into account witness statement or in requiring claimant to give evidence in chief orally without reference to witness statement – Whether VCAT otherwise erred in law – No error shown – No prospect of success on appeal – Application for extension of time refused – Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148.

APPEARANCES:	Counsel	Solicitors
For the Applicant	Applicant in person

For the Respondent	S C Bailey of counsel	L N Christie & Co.

1 In 2016, the applicant, Ms Kucevic, was a party to family law property proceedings against her former husband in the Federal Circuit Court. On 29 November 2016, Ms Kucevic engaged the respondent, LN Christie & Co., as her new solicitors in those proceedings, she having fallen out with her previous solicitors. At that stage, the matter had been set down for final hearing on 22 March 2017.

2 Between 29 November 2016 and 22 March 2017, L N Christie & Co. did a substantial amount of work for Ms Kucevic in the family law matter. They engaged counsel on her behalf for a mediation that took place in February 2017. They also engaged counsel for the final hearing that was scheduled to begin on 22 March 2017 and that was listed for two days. They did various other things that were necessary or incidental, such as preparation of witness statements, searches and the like.

3 In February 2017, at the request of L N Christie & Co., Ms Kucevic put $30,000.00 into their trust account on account of incurred and expected professional fees and disbursements.

4 In conference on the morning of the first scheduled day of the final hearing (22 March 2017), Ms Kucevic repeatedly accused her lawyers, including both counsel and Mr Leslie Christie, the principal of L N Christie & Co., of colluding with her former husband and with her former husband's lawyers to disadvantage Ms Kucevic. In this connection she insisted that her lawyers should put forward evidence that, in their view, would only have harmed her case. She refused to accept their advice that this evidence should not be adduced. She also refused to accept their advice as to how settlement might best be achieved. In these circumstances, counsel formed the view, as also did Mr Christie himself, that neither of them could any longer act for Ms Kucevic.

5 Counsel explained what had happened in general terms to the judge who was sitting in the Federal Circuit Court, Judge Riley. Ms Kucevic was present in Court. She repeated her allegations against her lawyers in that forum. Her Honour, unsurprisingly, granted leave to counsel and to L N Christie & Co. to withdraw from the proceeding. For that reason, and because it had become necessary to disclose to the Federal Circuit Court that Ms Kucevic had a pending County Court personal injuries claim, the Federal Circuit Court adjourned the further hearing of the family law proceeding until after the outcome of the County Court proceeding was known.^[1]

6 After the hearing on 22 March 2017, L N Christie & Co. sent Ms Kucevic an invoice for $38,863.05 in respect of their fees and disbursements. The invoice was in accordance with a costs assessment that had been independently prepared by the Law Institute of Victoria’s costing service.

7 Subsequently, Ms Kucevic made a claim at VCAT, disputing her liability to pay any fees or disbursements at all to L N Christie & Co.. She was not legally represented at VCAT. Various documents were relied upon by the parties in the VCAT proceeding but they have not been reproduced in the evidentiary material before me. The matter came on for final hearing in the Legal Practice List of VCAT before Senior Member Butcher on 2 July 2018.

8 Senior Member Butcher heard the parties over several hours. The transcript occupies 64 pages. Ms Kucevic’s fundamental contention was that she should not have to pay L N Christie & Co. (or counsel) anything because they withdrew before the family law proceeding was finalised. She continued to maintain that they had actually colluded with her former husband and his representatives. However she did not support this serious allegation except by assertion. Mr Christie gave oral evidence refuting it.

9 Ms Kucevic also asserted before VCAT (belatedly) that the invoice was insufficiently detailed. In addition she complained about a letter sent to her by L N Christie & Co. in October 2017 (well after the relevant period) in which it was recited that the author understood that Mr Kucevic had informed the firm that her former husband had recently died. In fact he was still alive.

10 At the end of the hearing, Senior Member Butcher dismissed Ms Kucevic’s claim, save that he noted that L N Christie & Co. had waived the amount of $8,863.05 that had not been paid in respect of the invoice.

11 Ms Kucevic, still acting for herself,^[2] now seeks an extension of time to bring an application for leave to appeal in this Court under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’) against the decision of VCAT. She commenced the proceeding on 27 September 2018. She is out of time by almost two months because s 148 of the VCAT Act requires that any application for leave to appeal be commenced within 28 days from the date of the VCAT decision. There is power in this Court (under s 148(5) of the VCAT Act) to extend time.

12 There is no formal evidence providing any explanation for the delay, notwithstanding numerous opportunities that Ms Kucevic has had to file affidavit material that would explain the delay, and notwithstanding that this issue was drawn to her attention at directions hearings and by the submissions of the respondent.

13 It is not fatal that there is an absence of explanation for the delay. That has been established in cases such as Dix v Crimes Compensation Tribunal^[3] and Comcare v A’Hearn,^[4] but nonetheless it is a relevant factor.

14 Another factor is whether there is an arguable case for leave to appeal, and, indeed, the strength of the case generally.

15 In the present matter, directions were made by Judicial Registrar Clayton on 14 November 2018 to the effect that this hearing today be for Ms Kucevic’s application for an extension of time and that the parties also be prepared to argue the application for leave to appeal if an extension of time were granted, together with the appeal itself, if leave were to be granted. So, everything that the parties would rely upon on a final appeal under s 148 was required to be filed and served for today’s hearing.

16 However, as already mentioned, the documents that were before VCAT have not been reproduced, notwithstanding that the one and only question of law identified in the originating motion (if it be a question of law at all) is the question whether VCAT failed to accord due process to Ms Kucevic by not allowing her to proceed by way of a document that included what she now calls a ‘witness statement’ that she had apparently filed on the very day of the hearing at VCAT (2 July 2018) and by asking her, instead, to give evidence orally (with the benefit of an interpreter) at the VCAT hearing room. The ‘witness statement’ was about one page in length.

17 It seemed at one stage that Ms Kucevic was alleging that the VCAT member did not read her ‘witness statement’ at all. However, she told me from the bar table today that the member said he had read it, and she now accepts (I believe) that he did read it. In any event, as the respondent submits, the transcript tends to confirm that the VCAT member did read the witness statement.

18 At another stage, Ms Kucevic’s complaint to this Court seemed to be to the effect that she should have been allowed to rely upon her witness statement as constituting her evidence in chief at VCAT, because of the risk that otherwise she might forget something.

19 In my view Ms Kucevic has no valid complaint in that regard. Generally speaking, VCAT is entitled to require that a witness give oral evidence in the ordinary way. There is nothing in any relevant legislation or VCAT rules to suggest that VCAT is required to proceed by way of witness statements. Such procedures are within VCAT’s discretion. In this case there is no evidence as to what specific pre-hearing directions, if any, were given at VCAT. I note again that Ms Kucevic only produced her ‘witness statement’ on the very day of the VCAT hearing.

20 Nevertheless, out of an abundance of caution, I have allowed Ms Kucevic today to go through her VCAT ‘witness statement’ and to tell me whether there is anything in it that was omitted or not covered in the evidence and discussions that took place at VCAT. Ms Kucevic was not able to identify any such thing. Everything she mentioned was well and truly canvassed in the VCAT hearing, as the transcript shows.

21 There is no substance whatever in Ms Kucevic's complaints about what happened procedurally at VCAT. Indeed, having read the transcript, I would observe that the hearing was conducted by Senior Member Butcher in a way that was conspicuously fair to Ms Kucevic (as a litigant in person).

22 Further, Senior Member Butcher dealt with each of the substantive issues raised before him in a fashion that appears to be entirely sound. For the most part, Ms Kucevic simply repeated before me that VCAT should have decided that she was not required to pay for the legal services she received because her lawyers had withdrawn from the family law proceedings. But, quite understandably, VCAT was not persuaded of that. VCAT took into account that the Federal Circuit Court had granted the lawyers leave to withdraw. VCAT was not satisfied that Ms Kucevic had established that the lawyers had done anything inappropriate leading up to or in connection with their withdrawal. VCAT further found that Ms Kucevic’s other complaints were not made out or were irrelevant to the dispute as to costs. I cannot see any error of law, or any error at all, in VCAT’s (ex tempore) reasons for decision in these respects.

23 In my view, Ms Kucevic has no prospect of success in her proposed appeal to this Court under s 148. Certainly, she does not have a ‘real prospect of success’, that being the test for the grant of leave under s 148(2A) of the VCAT Act. In these circumstances, the only appropriate order is to refuse an extension of time, because it would be futile to extend time.^[5] Accordingly, the order of the Court is that the application for an extension of time is refused.

24 The applicant, Ms Kucevic, is to pay the costs of the respondent, L N Christie & Co., of the proceeding (including any reserved costs) on the standard basis.

^[1] The matter of the pending County Court proceeding was another matter which appropriately affected the decision making of the lawyers, Mr Christie and counsel, as explained in the evidence of Mr Christie before VCAT.

^[2] Ms Kucevic told me that she had had assistance from the Unrepresented Litigants Coordinator of the Supreme Court.

Supreme Court of Victoria

Kucevic v L N Christie & Co [2019] VSC 489 (18 July 2019)