Victorian Civil and Administrative Tribunal|2008-07-24

The application is summarily dismissed pursuant to s.75 of the Victorian Civil & Administrative Tribunal Act 1998.

Lennon Mazzeo Lawyers acted for Mr. Hasan Alshakshir in the defence of proceedings brought against Mr. Alshakshir in the County Court.
Lennon Mazzeo Lawyers subsequently brought proceedings against Mr. Alshakshir in the Magistrates' Court, seeking payment of legal costs incurred by Mr. Alshakshir. On 25 July 2007, the Magistrates' Court ordered Mr. Alshakshir to pay $29,030.97 to Lennon Mazzeo Lawyers for legal costs and interest thereon. Mr. Alshakshir also was ordered to pay the costs of the Magistrates' Court proceedings.
Several months later, on 4 December 2007, Mr. Alshakshir lodged an application to VCAT seeking an order that Lennon Mazzeo Lawyers pay to him $28,729.00. According to Mr. Alshakshir, that was the sum paid to Lennon Mazzeo Lawyers for the County Court proceedings, although paid partly by Mr. Alshakshir and partly by the other party to those proceedings.
Lennon Mazzeo Lawyers now seeks an order that the VCAT application be summarily dismissed pursuant to s.75 of the Victorian Civil & Administrative Tribunal Act 1998. It is contended that the issues raised in the Magistrates' Court were almost identical to the issues raised at VCAT, and that it is an abuse of process to raise them again at VCAT. A few additional issues are raised in the VCAT application, but it is contended that those issues could have been raised in the Magistrates' Court and that Mr. Alshakshir is estopped from pursuing them at VCAT.

'The court record does not disclose the filing of a counterclaim by you in this matter. Should you wish to file a claim against Lennon Settle Mazzeo [as Lennon Mazzeo Lawyers appears to have been known in the past] you may do so by way of Form 4A Complaint as the substantive proceeding in which you were the defendant has concluded.'

In substance, Mr. Alshakshir contended that the Magistrates' Court proceedings dealt only with the legal costs charged by Lennon Mazzeo Lawyers, and that in the VCAT application he seeks to raise issues of negligence.
It is true that Mr. Alshakshir did not lodge a separate counterclaim in the Magistrates' Court proceedings. However, he did lodge an amended defence which set out "Particulars of Negligence" that are almost identical to particulars of negligence and failure to follow instructions provided by Mr. Alshakshir in his VCAT application.
The same amended defence also set out "Particulars of Counter-Claim" in which Mr. Alshakshir alleged "negligence and failing to follow instructions" without setting out any details. The amended defence in the Magistrates' Court proceedings was tendered as evidence in the present proceedings.
The Magistrates' Court proceedings were heard by Deputy Chief Magistrate Lauritsen over a period of two days. A transcript of his decision is in evidence.
His Honour assessed the amount of the costs to which Lennon Mazzeo Lawyers is entitled, and made the order that I have mentioned.
His Honour also said that, although the claim was for payment of invoices for legal costs, "the Defendant has opened up almost a Pandora's Box of issues with the implicit consent of the Plaintiff".
His Honour also referred to what he described as "the second issue ... in relation to due skill and care of the practitioner", and concluded:

'What I think is relied upon is the implied contractual term, but the areas to which Mr. Ha [who appeared for Mr. Alshakshir] drew my attention in that regard do not in my view establish anything remotely bordering on or coming up to a lack of due care and skill in relation to the way the Plaintiff performed the work.'

I find that the allegations of negligence and failure to follow instructions, raised on behalf of Mr. Alshakshir during the course of the hearing before DCM Lauritsen, were determined by His Honour adversely to Mr. Alshakshir.
The issues having been determined, there no longer is a dispute between the parties about those issues. Put more technically, the cause of action arising out of those issues has merged with the judgment, and no longer has an independent existence: Curren v Blair [1939] HCA 23; (1939) 62 CLR 464 @ 532.
To the extent that Mr. Alshakshir's application sought to raise issues that already had been determined, it was "an abuse of process" within the meaning of that term in s.75(1)(b) of the VCAT Act.

During the course of the present hearing, Lennon Mazzeo Lawyers accepted that the issues raised by Mr. Alshakshir in his VCAT application include a small number of issues not raised by him in the Magistrates' Court.
In particular, Mr. Alshakshir claims in his VCAT application that Lennon Mazzeo Lawyers did not "collect essential documents", and that Lennon Mazzeo Lawyers did not take action to prevent the solicitor for the plaintiff in the County Court proceedings from continuing to act despite having a conflict of interests. It is conceded that these claims were not made in the Magistrates' Court proceedings.
However, counsel for Lennon Mazzeo Lawyers submitted that Mr. Alshakshir is estopped from raising any additional issues, as a matter of law, because he could have raised those issues in the Magistrates' Court proceedings.
Mr. Alshakshir did not contend that he was unable to raise the additional issues in the Magistrates' Court proceedings. He just said that he did not lodge a counterclaim raising those issues.
The relevant legal principle is set out in the oft cited case of Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589. The principle is to the effect that litigants must bring forward their whole case, and cannot raise issues in subsequent proceedings between the same parties that were so closely connected to the earlier proceedings that they should have been raised in the earlier proceedings. The principle is based in part upon the public policy there must be an end to litigation: Anshun's Case @ 597, 605 & 609.
Counsel for Lennon Mazzeo Lawyers also relied upon the decision of the Supreme Court in Delahunty v Howell (unreported, Gray J, 12 May 1993), a case where the facts were almost identical to those in the present case. In Delahunty's Case, a solicitor sued his client for costs in the Magistrates' Court. The client defended the proceedings on the basis that, among other things, the solicitor had been negligent in one or two respects in the conduct of court proceedings. The client subsequently commenced proceedings against the solicitor in another jurisdiction, seeking compensation on the basis that the solicitor had been negligent in many respects in the conduct of the court proceedings. Relying upon the principle in Anshun's Case, the Supreme Court "forever stayed" the subsequent proceedings.
I find that the additional allegations raised by Mr. Alshakshir in his VCAT application could have been raised in the Magistrates' Court proceedings, and were so closely connected to the issues in the Magistrates' Court proceedings that they should have been raised in those proceedings. Consequently, Mr. Alshakshir is estopped from raising them in his VCAT application.
To the extent that Mr. Alshakshir's application sought to raise additional issues, it was "misconceived" within the meaning of that word in s.75(1)(a) of the VCAT Act.

The letter from a Court Advice Officer at the Magistrates' Court:

It will be recalled that Mr. Alshakshir relied in the present proceedings upon a letter he received from the Court Advice Officer at the Magistrates' Court. In substance, the letter informed Mr. Alshakshir that, because the proceedings in the Magistrates' Court had concluded, he could raise the issues that he wanted to raise by lodging a new complaint.
The advice given in the letter was misleading, partly because the letter failed to take into account that most of the issues that Mr. Alshakshir wished to raise already had been determined by the Magistrates' Court, and partly because it failed to mention that Mr. Alshakshir might be estopped from raising additional issues in a separate proceeding.

The application is summarily dismissed pursuant to s.75 of the Victorian Civil & Administrative Tribunal Act 1998, on the basis that it is misconceived and an abuse of process.

Alshakshir v Lennon Mazzeo Lawyers (Legal Practice) [2008] VCAT 1792 (24 July 2008)

Alshakshir v Lennon Mazzeo Lawyers

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Judgment (10 paragraphs)

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Cases Cited (3)

Alshakshir v Lennon Mazzeo Lawyers (Legal Practice) [2008] VCAT 1792 (24 July 2008)