Appellant v Respondent

2 In December 2016, a Magistrate rejected Mr Kuek's account and found that Ms Phillips:

(b) was entitled to nearly $20,000 for the work and labour she had performed on the files and for which Mr Kuek had received payment.

3 Mr Kuek now appeals the Magistrate's decision. The grounds of appeal are, in the main, without foundation and for the reasons that I now set out the appeal will be dismissed.

Events preceding the hearing in the Magistrates' Court

4 Ms Phillips issued her complaint on 19 December 2013.

5 The pleaded claim was for work and labour done in relation to two matters in which Mr Kuek (who practiced under the name Access Law) acted for Mr Stefan Benic in discrimination claims.

6 Ms Phillips alleged that she was an employee of Mr Kuek and performed a total of just under 150 hours of work in relation to those two cases, for which she was owed $19,537.70.

7 Mr Kuek was served with the claim on 13 January 2014.

8 On 1 May 2015, the proceeding was dismissed pursuant to Rule 21.11 of the Magistrates' Court General Civil Procedure Rules 2010 (Vic) ('the Rules'), which reads as follows:

(1) A complaint stands dismissed as against any defendant at the expiration of three months after the period of the validity for service of the complaint, or, if that period has been extended, after the expiration of any extension of the period, if, at the time of expiration, that defendant has not filed a notice of defence and an order in default of defence has not been made against that defendant.

(2) The Court may from time to time, by order, extend the period of 3 months referred to in paragraph (1) for a period of not more than 6 months after the day of the order.

(3) If an order is made under paragraph (2), the period of 3 months in paragraph (1) is to be taken to be substituted by the extended period ordered by the Court.

9 On 4 January 2016, pursuant to an application by Ms Phillips, Magistrate Holzer reinstated the proceeding (and permitted an amendment to the complaint)[1] pursuant to r 21.13(1) of the Rules, which reads as follows:

The Court may reinstate any complaint that stands dismissed by operation of Rule 21.11.

10 Magistrate Holzer made the reinstatement and amendment orders in chambers, without hearing from either party. No notice of the hearing was given to Mr Kuek, who became aware of the orders of the Magistrate on 18 January 2016 when the orders of the Court and the amended complaint were served on him.

12 The proceeding then went through the standard interlocutory processes in the Magistrates' Court and was fixed for hearing in December 2016.

13 A couple of relevant matters concerning Mr Kuek's conduct prior to the hearing are to be noted here, to which I will return when considering the first two grounds of appeal:

(a) it was open to Mr Kuek to apply to set aside Magistrate Holzer's order pursuant to r 46.10 of the Rules. This provision enables a party to set aside an order where no notice has been given to the affected person. Mr Kuek made no such application; and

(b) although the written defence of Mr Kuek raised the point, no notice was given to Ms Phillips that Mr Kuek proposed to argue at the commencement of the hearing of the trial that the order of Magistrate Holzer was, in effect, a nullity and that Magistrate Radford, who heard the case, did not have jurisdiction to hear the case.

14 The hearing before his Honour Magistrate Radford commenced on 12 December 2016 and took three days.

15 At the commencement of the hearing, counsel for Mr Kuek submitted that the Court had no jurisdiction to hear the proceeding.[2] This was rejected[3] - as was the assertion that the claim[4] was barred by reason of r 5.09 of the Rules.[5]

16 After the dismissal of that point, counsel for Mr Kuek made another application: that there was apprehended bias on the part of the Magistrate - this application was also rejected.[6]

17 I pause to interpolate here that a reading of the transcript demonstrates that the Magistrate, in the face of considerable adversity, managed this trial superbly. Others (including those in higher jurisdictions) may have become distracted - and perhaps, incensed by the conduct of Mr Kuek's defence. But it is clear that the Magistrate retained a real sense of equilibrium notwithstanding a number of patently worthless and obfuscating arguments that were put before him on behalf of Mr Kuek.

18 Both Ms Phillips and Mr Kuek then gave evidence and a number of documents (including bills of costs relating to the claims) were tendered.

19 Ms Phillips gave evidence as to her work as a disability advocate and her arrangement with Mr Kuek, which commenced in 2006. She said that she would refer cases of her clients to Mr Kuek and would then, under Mr Kuek's supervision, in effect, work as a law clerk on certain files.

20 Ms Phillips said that she kept a running sheet of the hours she worked. If the case on which she performed work was successful or there was a settlement, Ms Phillips would provide Mr Kuek with an outline of hours worked by her and a description of the work that she had done. Ms Phillips' hours would then be included in Mr Kuek's bill of costs to the client and submitted for payment.

21 Ms Phillips' spreadsheet of the hours worked (which forms the basis for the inclusion of her hours in the respective bills of costs) was tendered, as well as a number of bills of costs rendered in the course of the two proceedings.

22 Mr Kuek did not dispute that Ms Phillips had referred cases to him (indeed he identified 46 such cases) and described the relationship as follows:

It was a mutual understanding that we would in fact share what we recovered when we recover some money and she would be paid what was recovered on her behalf.[7]

23 Mr Kuek accepted that in rendering bills of costs he would charge Ms Phillips' time out at a rate of $60 per hour under the Federal Court scale.[8] Ms Phillips' expenses were not treated as a disbursement. Mr Kuek also accepted that in respect of the two bills for which he received payment, Ms Phillips' work was costed and claimed in the bill of costs. He received $63,700 and $36,250 respectively for work performed by his firm on the two cases.[9] He maintained his claim that any reimbursement to Ms Phillips for her work was entirely discretionary.

24 In the course of final submissions the following exchange occurred between the Magistrate and counsel for Mr Kuek:[10]

MR ADAMI: There was one time it was a bit more, your Honour. Most of the other times my client has given evidence that it was at his discretion. And the fairest way of resolving it was finding out the percentage value of each of the barristers, my client's fees and Ms Phillips' fees and doing it on a percentage basis of what was recovered. And there was no agreement that that was the way in which it was to be formulated.

HIS HONOUR: In the absence of an agreement how was it meant to be done?

MR ADAMI: It was done at his discretion.

25 Whilst a transcript of most parts of the hearing was available on this appeal, there is no transcribed record of the reasons of the Magistrate for his judgment; so the transcript relates solely to the evidence and argument in the course of the trial. Unfortunately the Magistrate did not retain his notes of the judgment, however both instructing solicitors provided their notes (to which I will refer later), which generally tally and seem to give a fair indication as to the findings made by the Magistrate.

26 Based on the notes of the two solicitors,[11] I am satisfied that the Magistrate concluded that:

(b) Ms Phillips worked on the two files for which she claimed payment;

(c) Some of the work done by Ms Phillips was claimed in the bills of costs drawn up by Mr Kuek;

(d) Mr Kuek received payment for the bills of costs rendered in relation to each file - although it was not the full amount of the submitted bill;

(e) Mr Kuek's contention that he was not obliged to pay any amount to Ms Phillips (on the basis that the arrangement between them was discretionary) was unfounded and rejected;

(f) The agreement between them was that Mr Kuek would pay Ms Phillips a percentage of the total value of her work on the file consistent with the percentage recovered by him in relation to the bill of costs;

(g) On the basis of this arrangement Ms Phillips was entitled to $13,759 (plus interest and costs), being 70 per cent of the total value of her services, as per her worksheet.

27 The four grounds of appeal can be summarised as follows:

1. Magistrate Radford erred in law by rejecting Mr Kuek's preliminary submissions - namely that the interlocutory orders of Magistrate Holzer of 4 January 2016 were made in excess of jurisdiction and/or denied Mr Kuek natural justice.
2. Magistrate Radford erred in law in his interpretation and application of r 5.09 of the Rules_._
3. Magistrate Radford erred in law when he refused Mr Kuek's application that he recuse himself on the ground of apprehended bias.
4. The trial before Magistrate Radford miscarried.

28 I pause here to note that for any of the grounds to succeed, it must be shown that under s 109 of the Magistrates' Court Act 1989 (Vic) there has been an error of law on the part of the Magistrate. Recently, Zammit J in Guissine v Silver Top Taxi Service (No.2),[12] said of the provision:

An appeal lies under s 109(1) of the Act on a question of law, from a final order. An appeal on a question of law from a final order of the Magistrates' Court to the Supreme Court under s 109(1) of the Act is an appeal strictly so called, not a rehearing. On appeal from the Magistrates' Court, this Court is not entitled to interfere with the decision of the Magistrate unless satisfied that the Magistrate acted on a wrong principle of law, misapprehended the facts or made a wholly erroneous assessment of the relevant issue. There is a strong presumption in favour of the correctness of the decision appealed from and the general rule is that the decision should be affirmed unless the court is satisfied that the decision is clearly wrong.

Ground 1 - lack of jurisdiction on the part of Magistrate Radford

29 Once Magistrate Holzer's decision to reinstate the case was made, then Magistrate Radford had subject matter jurisdiction. The order for reinstatement was made within the terms of the appropriate procedural rule, r 23.13(1). The Magistrates' Court then maintained jurisdiction unless an order to the contrary was made. So much is clear from the decision of the High Court in Berowra Holdings Pty Ltd v Gordon[13]:

There also is a very real difficulty in characterising proceedings as 'invalid'. The institution of an action or other proceeding is the exercise by the litigant of the freedom to invoke the jurisdiction of the judicial arm of government to determine a dispute. That step engages the procedural law appurtenant to the relevant court, which in modern times is found primarily in the Rules.

Professor Jolowicz describes procedural law as creating choices or a sequence of choices in the sense that each procedural step taken by a litigant requires the other party or the court to take some action, so affecting the path which the proceedings take towards ultimate disposition. This is the case even where a procedural rule is expressed in mandatory form; if the party to whom it is addressed chooses to disregard it, the normal outcome is that a choice accrues to the other party either to do nothing or to seek an appropriate order from the court.

In the adversarial system of justice, choice rests primarily with the parties and it is generally the case that the court's power of decision or order is exercised upon the application of a party. Generally there is in law no restriction upon a person's right to start an action and to carry it to the point at which a choice is cast upon the defendant to make some response in order to avoid judgment in default. Once the procedural law has been engaged, all parties to the litigation are subject to it.

None of the above denies the possibility of a defendant denying the plaintiff's right to invoke the jurisdiction of the court, for example where the plaintiff's right is conditional upon there being an action cognisable within that jurisdiction. However, the material point is that that denial must be made within the structure of the relevantly engaged procedural law, and not outside it. Accordingly, the defendant may challenge at an interlocutory level the strength of the plaintiff's alleged case by seeking to have a plaintiff's action struck out for failure to disclose a reasonable cause of action, or dismissed as incompetent. Alternatively, the defendant may have recourse to judicial review by a superior court, challenging the right of an inferior court to adjudicate the plaintiff's claim and seeking orders to prevent the inferior court continuing to hear the claim. However, the invocation of jurisdiction ordinarily enlivens the authority of the court in question at least in the first instance to decide whether it has jurisdiction.

30 And more recently in the New South Wales Court of Appeal in 2 Elizabeth Bay Road v The Owners Strata Plan:[14]

Similarly, 'invalidity' is unhelpful in a context where a party invokes the procedural rules of a court. It is important to recognise that 'the subject matter with which the statute deals is "rights" in the context of actual or apprehended litigation, and to understand the function of the Rules of Court and procedural law in facilitating adjudication of disputed claims': Berowra Holdings at [36]. Normally, in the adversarial system, the parties identify the points which are in issue for determination by a court, and those which are not. Further, those procedural rules include the ability to strike out or summarily to dismiss a proceeding. To that extent, the proceeding is 'vulnerable', but that label serves to distinguish it from something which is invalid. In particular, it is ordinarily a matter for a defendant to choose, if he, she or it wishes, to do nothing or to seek an appropriate order - even if a procedural rule is expressed in mandatory form: Berowra Holdings at [13]-[16].

31 As Magistrate Radford observed and consistent with what was said in Berowra, it was open to Mr Kuek, using the Magistrates' Court processes (and particularly Rule 46.10), to attack the re-instatement order made by Magistrate Holzer. He did not do so and accordingly the Court retained jurisdiction to hear the claim.

32 Next, Mr Kuek's, reliance upon the decision of Nettle J in Thomas v Campbell, [15] both before the Magistrate and this Court, was misplaced.

33 Thomas involved an appeal from a decision of a Magistrate in a criminal proceeding under what was then s 92 of the Magistrates' Court Act 1989 (Vic) - although the terminology and reference to 'final orders' is similar to those under s 109 of the current Act which is under consideration here.

34 In particular, Mr Kuek relied upon paragraphs [30]-[36] in Thomas:

The respondent contends that even if the first magistrate did make an error of law in setting aside the summons, the error cannot be characterised as an error of law involved in the final orders of the second magistrate. After all, the respondent says, the second magistrate was never asked to reconsider the question of the summons. To all intents and purposes the appellant accepted the first magistrate's ruling and was content to abide it. In those circumstances, how can it be said that there was error of law involved in the final orders?

Consider, however, what the position would have been if the one magistrate had dealt at the outset or in a preliminary hearing with the application to set aside the summons and then gone on to hear the charges against the appellant. I doubt that there would be too much hesitation in those circumstances in characterising an error in the decision to set aside the summons as an error involved in the final orders. Granted that the decision to set aside the summons would have preceded the final hearing, perhaps even by a considerable period of time, and that the order to set aside the subpoena would have been an interlocutory order, it would still have borne just as much on the orders to convict as if made in the course of the final hearing. Why then should it make any difference that one magistrate was appointed to deal with evidential objections and the like in advance of the final hearing and that a second magistrate was appointed to conduct the final hearing? Common sense and experience dictate that practices of that kind are sometimes necessary and frequently desirable. It is in the interests of expedition, good case management and everyone's convenience that they be adopted and it would be most unfortunate if the consequence were to deny an accused a chance of appeal which otherwise may have existed. In my opinion it should not be thought to make a difference to the appellant's rights of appeal that the summons was dealt with in advance of the final hearing.

The respondents submit that since the second magistrate was not bound by the first magistrate's ruling and, if asked to reconsider the matter, might have decided differently to the first magistrate, it is to be assumed that the appellant accepted the first magistrate's ruling and that there is nothing unfair or inappropriate in holding the appellant to it. But I do not think that is so. As a general proposition it would be most inconvenient and, so far as I can see, productive of nothing of any value, if in order to preserve a right of appeal in respect of matters decided by one magistrate at a preliminary hearing counsel were obliged to re-litigate each such matter before another magistrate at the final hearing.

That does not mean that a party who has lost an interlocutory application before one magistrate at a preliminary hearing should be precluded from revisiting the matter with another magistrate at the final hearing. Plainly, it would be open to do so. And it does not mean that the magistrate who conducts the final hearing should always be slow to depart from an earlier interlocutory order of the other magistrate, at least where it is clear that the earlier decision is wrong or inapplicable in the way in which circumstances may have developed since it was made. Nor does it mean that a failure to take up an interlocutory order with the magistrate at the final hearing may not sometimes be regarded as acceptance of the interlocutory decision: for example, if the magistrate at final hearing were to raise the matter with counsel and counsel responded that there was no longer any dispute about the ruling. But cases like that apart, I consider that a magistrate who conducts a final hearing should be able to proceed without re-litigation of interlocutory orders made by another magistrate at a pre-trial hearing, without prejudice to such rights of appeal against conviction as might arise out of any error in the interlocutory orders.

It was submitted for the respondents that so to hold would open up the intolerable possibility of appellants advancing as grounds of appeal from final orders every arguably erroneous interlocutory order made in the course of the interlocutory stages of the proceeding. But I do not think that is right either. The only orders which may be made the subject of appeal under s 92 of the Magistrates' Court Act are orders that are 'involved in the final orders'. That limits the range considerably. And while the characterisation of orders of that kind is inevitably a question of fact and degree, the task is unlikely to be made much more difficult by the number of magistrates that play a part in the conduct of the proceeding.

Moreover and more importantly, it would be illogical and unsatisfactory that rights of appeal should depend upon the fortuitous circumstance that one magistrate may be assigned to decide evidential objections before final hearing and that another magistrate may later be assigned to conduct the final hearing. In practice, no doubt in the Magistrates' Court as much as in this court, interlocutory decisions upon the admissibility of evidence and other questions of adjectival law are frequently made by one judicial officer before the final hearing and thereafter the final hearing is conducted by another judicial officer on the basis of what has been so decided. In this court the practice is expressly sanctioned by ss 5, 6 and 7 of the Crimes (Criminal Trials) Act 1993, although it is not dependent upon that legislation for its efficacy. It is part of the inherent or, in the Magistrates' Court, implied jurisdiction to manage proceedings in a fashion which is efficient and fair.

In my opinion the decision of the first magistrate to set aside the summons to witness in this case was informed by error of law and in the circumstances of this case it was an error which was involved in the final orders to convict the appellant of the offences with which he was charged.[16]

35 The decision in Thomas did not, as Mr Kuek's ground of appeal alleges, give Magistrate Radford the power to set aside the order of Magistrate Holzer. Rather, it primarily stands for the proposition that this Court may, in an appropriate case, set aside final orders of the Magistrates' Court if an interim order or interlocutory order which is demonstrated to be wrong is sufficiently bound up with the final order.

36 Whilst I accept that Nettle J also held that a party in the Magistrates' Court may be able to revisit a previous decision of an interlocutory nature before the Magistrate conducting the final hearing,[17] this was clearly confined to limited situations, and usually in a criminal proceeding.

37 This case is far removed from the facts in Thomas. Here, the only link between the final orders and the earlier decision was the procedural reinstatement of the case. In Thomas there was a substantive injustice - the wrongful setting aside of a subpoena by the intermediate Magistrate with the resultant inability to call a relevant witness. This decision was 'redolent with error' (to use the words of Nettle J)[18] and was patently relevant to the defence of criminal charges. Here, by contrast, there is no suggestion of such injustice. Rather, a convoluted and ill-conceived procedural argument was said to fall within the terms of the reasoning in Thomas. I reject this submission.

38 Accepting for the sake of the argument, that it was open to challenge Magistrate Holzer's decision before Magistrate Radford, the grounds for doing so were hopeless. The original claim had been dismissed by reason of a mechanical provision - which automatically dismissed a claim that had not been the subject of action for a period of six months. An application to reinstate the claim was routine and the Rule did not require notice to be given to Mr Kuek.[19] I accept that Mr Kuek, although aware of the proceeding, had not been served with the application. But that matters not, as this claim was simply the initiating document and no question of any relevant limitation period has been suggested. As was observed earlier, Mr Kuek's appropriate remedy was to apply to set aside Magistrate Holzer's order.

39 It was then said by Mr Kuek, both to Magistrate Radford and on the appeal, that on such an application he would have wanted to rely upon a letter ('the letter') that his solicitors wrote to Ms Phillips' lawyers on 28 January 2014.

40 Ms Phillips' original statement of claim is set out below as Annexure A. It will be seen that although the claim is clearly for a significant amount, the endorsement (on the second page of the document), mistakenly, makes a claim for $0 dollars plus costs of $391.

I enclose herewith Mr Kuek's cheque in the sum of $391.00 in payment of the aggregate amount sought pursuant to the r5.09(1) endorsement. Pursuant to r5.09(4), the proceeding must now come to an end. The conclusion of the proceeding dissolves the controversy it was concerned with.

Notwithstanding the above, Mr Kuek remains willing to resolve the matter amicably. In this respect, I respectfully suggest that your client abandon the litigious stance she has assumed. Instead, she should detail her claims comprehensively to enable appropriate consideration to be given to them.

42 It needs only a sense of basic fairness to understand the ignoble and amateurish suggestion of Mr Kuek that accompanied his tender of the cheque - which was sensibly returned by Ms Phillips. Mr Kuek's conduct in this regard was, I think, inappropriate and inconsistent with his overarching obligations to the Court (both at common law and under the Civil Procedure Act 2010 (Vic) ("CPA")).[20] More fundamentally, it would not have made a shred of difference to Magistrate Holzer's decision to reinstate the proceeding.

43 Indeed, the inability of Mr Kuek to argue this point before Magistrate Holzer probably saved Mr Kuek from an unfavourable award of indemnity costs.

44 There was no breach of procedural fairness in the manner in which Magistrate Holzer reinstated the proceeding, as argued by Mr Kuek - all that was done is that the claim was reactivated and the problem with the endorsement remedied.[21]

45 It is well understood that procedural fairness, as the High Court[22] and the Court of Appeal in this State have regularly noted, is protean in nature and much depends upon the circumstances of the case:

The cases show clearly that the principles of natural justice do not comprise rigid rules, but the requirements of compliance with those principles will depend upon the particular circumstances. 'Fairness' may require, or be satisfied by, different procedures even by the same statutory authority in different circumstances.[23]

46 In any event, Mr Kuek's asserted failure to be given notice of the application had no practical effect on the outcome. As the High Court observed in Stead v State Government Insurance Commission:[24]

The general principle is, however, subject to an important qualification which Bollen J plainly had in mind identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.

For this reason, not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.

47 Here, there was no valid argument to prevent the continuation of the case, which was, in any event, in an embryonic stage. Nothing thereafter prevented Mr Kuek from filing his defence as he did - and then contesting the claim on its merits at the trial - as he did over three days.

48 Finally, as counsel for Ms Phillips noted on the hearing of the appeal, Mr Kuek had a fair trial before Magistrate Radford and a hearing on the merits was sufficient to cure any earlier potential procedural unfairness (which I have not detected).[25]

49 The end result is that the Magistrate was correct to refuse the application of Mr Kuek, which was misconceived and without foundation.

Ground 2 - Rule 5.09 should have resulted in the dismissal of the claim

50 The reliance upon the letter continued on the appeal with Mr Kuek arguing that the consequence of the offer contained in the letter meant that Magistrate Radford misapplied r 5.09 and should have concluded that the proceeding 'must come to an end'.

51 The particulars of the notice of appeal go on to assert:

Magistrate Radford erred in deciding that the overarching obligation provision of the Civil Procedure Act 2010 overrode Rule 5.09.

52 Rule 5.09(1) (as it was at the time) read as follows:

(1) If the plaintiff claims a sum of money only, the complaint must be indorsed with a statement as follows -

If you pay the amount of $ and costs of $ to the plaintiff or the plaintiff's Australian lawyer without giving notice of defence you may avoid further costs.

(2) The amount of costs in the indorsement must be -

(a) the case of a claim for debt, liquidated demand or claim arising from a motor vehicle collision for cost of repairs only or for total loss of vehicle only -

1. the amount of scale costs in item 1 in appendix A applicable to the amount claimed; and
2. if any certificate is filed or required to be filed under the Civil Procedure Act 2010, the amount of scale costs in item 19 in Table 1 to Appendix A applicable to the amount claimed; and
3. The fees (if any) for the filing and service of the complaint;

....

(4) If a complaint is indorsed in accordance with paragraph (1), and the defendant pays the amounts claimed within the time limited for giving notice of defence, then the proceeding must come to an end.

53 Mr Kuek's reliance on r 5.09(4) as a bar to Ms Phillips' claim is totally misconceived - as the Magistrate correctly recognised.[26]

54 First, the terms of r 5.09(1) were not engaged so as to arguably terminate the proceeding provided by sub-rule (4). The only specified amount was for costs. There was no endorsement with the amount claimed so sub-rule (1) was not complied with and therefore (4) could not be utilised.

55 Second, even if r 5.09(1) was engaged the conditions of sub-rule (4) were not satisfied as it was clear there was either no amount claimed, or alternatively by reference to the substance of the claim, the amount claimed was $19,537. If it was the former, sub-rule (4) had no operation and if it was the latter then it was not paid.

56 Third, the endorsement was, as the Magistrate noted, entirely inconsistent with the substance of the claim contained in the complaint, which sought $19,537. It was, to use the Magistrate's words, 'a clear and plain error' which could not conceivably invalidate the substance of the claim.

57 Fourth, the asserted tender contained in the letter was disingenuous and misleading. The letter referred to an "aggregate amount" of $391. There was no such aggregate, as it was crystal clear from the substance of the claim that the amount sought was just short of $20,000 - and that the amount claimed in the indorsement was confined to costs alone.

58 Finally, if it was necessary, then the Magistrate's reliance on the provision of the CPA was correct. Section 47(1) of the CPA enabled the Magistrates Court, in furthering "the interests of the administration of justice", to make any order in relation to case management that it considered appropriate.[27] Magistrate Radford's rejection of Mr Kuek's argument was such an order and the provision of the CPA clearly trumped r 5.09.

59 The end result is that the Magistrate was plainly right in rejecting the argument.[28] I repeat what I said earlier: this letter and Mr Kuek's conduct asserting that the claim was finalised by a payment of $391 fell well short of the standard of conduct expected of a lawyer in this state - and this should have been recognised by his counsel - both before the Magistrate and on the appeal.

Ground 3 - apprehended bias of Magistrate Radford

60 During the course of the fallacious argument put by counsel for Mr Kuek to Magistrate Radford about the effect of r Rule 5.09, counsel for Ms Phillips said as follows[29]:

We have an attempt by the Defendant in the most outrageous manner, in a manner akin to Shylock in the stories of old, to rely upon a strict legal literal right when it is patently obvious to any reasonable person, let alone any legal practitioner, that there is an amount claimed.

61 After further discussion (and as noted earlier), the Magistrate correctly rejected the submission, and counsel for Mr Kuek asked to have the matter stood down. Counsel then returned to Court and made an application that the Magistrate recuse himself in the following terms[30]:

Your Honour, making an application that your Honour recuse yourself from the further hearing of this matter given that yesterday my learned friend made what could only be described as disparaging remarks with regards to my client in the sense that at least, today he described my client as Shylock, a term which can only be consistent with describing my client as a shyster or a dishonest man. Yesterday my learned friend said that Mr Kuek of all people ought to know better. He said that on to [two] occasions. My learned friend also said that reasonable and Mr Kuek couldn't be used in the same sentence. Now these statements impute a negative reputation which he didn't elaborate on and which your Honour didn't enquire as to what was meant.

To which his Honour replied:

Well, I completely disregarded them.

62 That, as will be seen, should have been the end of the matter. But counsel, undeterred, went on:[31]

Your Honour's failure to require my learned friend to explain what he meant by these remarks as I've just set them out, may lead a reasonable lay observer in the back of the Court to think that you may also have a view that there is some truth in these remarks. Further your Honour, it's not that whether you yourself have a positive or negative view of my client, simply whether the lay observer sitting in the back of the Court might think that there is the possibility of a pre-conceived view of my client and it's put on the basis that this impinges on one of the central pillars of the entitlement to have an unbiased and fair hearing in that it goes to the heart of the neutrality of the judicial officer to decide the case...

63 Then the Magistrate attempted to clarify this extraordinary application several times, as the following exchange demonstrates:[32]

His Honour: Do you have some authority for that proposition?

Mr Adami: Not with me your Honour.

His Honour: So you're making a submission without any authority?

Mr Adami: Well of course...

His Honour: No, no I just want to ask you this. So you're suggesting that there is some authority for a lay observer may think that there was some preconceived idea or view of the bench because a barrister had made some discouraging remark?

Mr Adami: No, by virtue, not because of that. By virtue of your failure to enquire of my learned friend as to what he meant.

His Honour: So you say there's a positive, whenever an allegation by counsel who says something untoward, there's a positive obligation upon a judicial officer as to make an examination and examine the author of those comments to explore that. Is that what you're saying.

Mr Adami: No, I'm not saying on every occasion there's the obligation ...

64 After providing counsel with time to find authority in support of the application, the Magistrate refused the application and ruled as follows:[33]

In the circumstances, I can't see, looking at the matter objectively how the hypothetical reasonable observer would think that I had prejudged the Defendant by not, in effect pulling up the Plaintiff's barrister on what was clearly gratuitous comments that did not feature in any way in my detailed reasoning or rulings. In applying the test in paragraph 12 and 13 of the judgment, I don't believe objectively a reasonable observer would have come to that conclusion.

65 There are a number of observations that can be made in relation to this ground of appeal.

66 The first is that the application was ill-advised and should never have been made.

67 The words used by counsel for Ms Phillips, whilst robust, were, in my view, understandable in context, given the absurd argument put by Mr Kuek's counsel in relation to r 5.09 and its effect on the continuation of the claim. I am confident that it was the product of understandable frustration at the conduct of Mr Kuek's defence which, at the time, appeared to be directed to avoiding a trial of the merits of Ms Phillips' claim.

68 Accepting for the moment that counsel's remarks were unacceptable (of which I am by no means certain), then endeavouring to attribute these remarks to the Magistrate was not only bizarre but patently wrong - particularly when his Honour had at the outset said that he had disregarded the remark.

69 In Ebner v Public Trustee,[34] the High Court said:

Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.

70 Earlier in the judgment the High Court set out the test to be applied in relation to the apprehended bias principle:[35]

The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.

71 The only complaint by Mr Kuek's counsel to the Magistrate was directed to the conduct of opposing counsel and not the Magistrate. Not one of the matters mentioned by counsel for Mr Kuek could have given rise (either alone or in conjunction) to an apprehended bias application. To the contrary, my reading of the transcript up until the point that this application was made demonstrates that the Magistrate had given both parties (and counsel) a full and fair opportunity to be heard notwithstanding the conduct of Mr Kuek's case.

72 Neither of the two steps espoused in Ebner were anywhere near satisfied. The first, namely the identification of the matter which is said to give rise to apprehended bias: here, arguably derogatory remarks made by counsel about the conduct of an opponent in a proceeding, has nothing to do with the presiding judicial officer. Whilst a judicial officer may intervene if concerned about such conduct there is no positive obligation to do so and none in this case that could give rise to an apprehended bias application. It may have been a different thing if the Magistrate himself had said something, but to effectively make the Magistrate responsible for words uttered by counsel is totally disingenuous.

73 Nor is the second step made out - that is, articulating the logical connection between the statements made by counsel and a concern that the Magistrate may not bring an impartial mind to the determination of Mr Kuek's claim. The only connection is illogical - that statements of counsel will necessarily, or perhaps, be adopted by the judicial officer - as the Magistrate correctly observed when the application was made. Juries in this state are told regularly that statements of counsel are just that - statements and not evidence. Judges are well aware of discounting statements made by counsel - indeed some might start with that as the prima facie position.

74 Moreover, it is clear that an arguable apprehended bias may well be cured by correcting (or clarifying) statements of the decision maker - for example, in Johnson v Johnson,[36] the trial judge explained what he had meant by comments made by him, with which a party took issue, on the previous day. Parties, and their legal representatives need to consider such statements and the effect that they may have on the conduct they seek to rely upon to substantiate their allegation of apprehended bias. In Johnson, the Court concluded that 'there was no reasonable ground for not accepting' the explanation given by the judge.[37] Similarly here, Mr Kuek has not suggested any ground, let alone a reasonable ground, for not accepting the Magistrate's statement that he disregarded the statements made by counsel for Ms Phillips.

75 There was no positive obligation on the Magistrate to intervene, as submitted by counsel for Mr Kuek.

76 The second point is that it seems clear that the Magistrate postulated, in the course of his ruling, the wrong test on a bias application such as this. The test, as set out in Johnson, is as follows:[38]

[T]he test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.

77 However as I set out at [64], the Magistrate posed the test as to whether 'a reasonable lay observer would harbour an apprehension of bias'. In accordance with Johnson, the test is that there might be such an apprehension.

78 Although the Magistrate had, belatedly, been referred to several authorities in which the test was accurately set out and, indeed, had used the correct phrasing himself in the course of discussion on several occasions (and when the point was first raised in the absence of authorities!),[39] I am prepared to conclude that his Honour meant what he said and the test applied by him was incorrect. But, the point goes nowhere. Whatever test was applied, no reasonable observer could, would, perhaps, or most importantly, might, have thought that the Magistrate was not capable of exercising an affected, independent judgement of the case.

79 Finally, in my view, counsel, in making this submission, departed from his primary obligation as an officer of the Court. It is clear that he had instructions from Mr Kuek to make this application. As the authorities to which I will now refer demonstrate, there was a significant onus on counsel to consider carefully whether he should raise such a serious matter with the Magistrate.

80 Allegations of bias or apprehended bias should only be made where the party making the point is satisfied that there is a proper basis for it. A proper basis does not include an irrational, even if genuinely held, belief that has no basis in fact. Mahoney JA (with whom the other members of the Court agreed) made this clear in The Government Insurance Office of NSW v Mortimer[40]:

If there be bias, it is proper that it be alleged. The fact that an allegation, if it is to be made, is to be made in respect of the person in high office does not mean that the allegation should not be made. In this regard, no person is in a position of privilege by reason of his office or his cloth: Mohahir Ali v Ellmore (1953) 2 All ER 1044 at 1049 and 1050, per Hodson LJ.

However, an allegation that a judge acted in a proceeding notwithstanding that he was biased, is a serious allegation: at least ordinarily it will be so. It will ordinarily involve judicial misconduct, judicial incompetence, or default generally of a similar nature. If an allegation may properly be made, it is the right and, in some cases, the duty of a counsel or party to make it. In Zanatta v Cleary (1976) 1 NSWLR 231 at 241, I said:

I would not desire to qualify the right of a party, or the right of his professional advisers, fearlessly to press every matter which, within the law, may properly be pressed in support of a claim. However, justice requires that a proper sense of responsibility be exercised in this regard and if evidence, the tender of which is apt to cause damage to others, will not be admissible, then justice will normally require that that evidence be not tendered. The fact that such evidence may, if accepted according to its terms, indicate a degree of indiscretion would render it less rather than more appropriate to be tendered. Matters of indiscretion, if they arise, may be dealt with by other means.

But it is accepted that, in respect of a party or a witness, a charge of misconduct should be made only where the party making it satisfies himself that there are grounds for making it: see Rajski v Bainton (1990) 22 NSWLR 125 at 135 to 137. To put the matter no higher, nothing less is to be expected where such an allegation is made against a judge. Such an allegation should not be made upon grounds that are equivocal or, a fortiori, flimsy.

In this case, there is in my opinion no basis for the allegation of bias which has been made. It would not be open to be inferred from that which has been relied upon that the judge was in fact biased or, indeed, for any proper apprehension that he was.

81 In Hall v NSW Trotting Club Ltd, Mahony J again reiterated this position and noted:[41]

To infer bias or otherwise such conduct as would require that proceedings be set aside is a matter of some gravity, and, in my opinion, a court will not draw such an inference, unless the material from which it is to be inferred has the appropriate degree of cogency.

82 In Gascor v Ellicott, Tadgell JA said:[42]

Although the criterion of apprehension of partiality or prejudice is possibility, not likelihood, a reasonable apprehension is to be established to the court's satisfaction: it is a reasonable and not a fanciful or fantastic apprehension that is to be established; and the apprehension is to be attributed to an observer who is "fair-minded" - which means "reasonable".

83 And in Ebner the High Court said:[43]

If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.

This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.

84 In Re JRL Ex parte CJL, Mason J determined that a reasonable apprehension of bias must be firmly established, explaining the rationale for this position as follows:[44]

It seems that the acceptance by this court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

85 If the application was to be made it should have been accompanied by an appropriate degree of assistance to the Court. As I said (when sitting in the Court of Appeal) in Accurate Financial Consultants Pty Ltd v Koko Black Pty Ltd:[45]

where a party wishes to propound a certain legal point at trial, it is appropriate (indeed some may say necessary) for that party to provide as much assistance as it can to the trial judge in determining that issue. That obligation extends not only to submissions but also to the provision of relevant authorities supporting the particular assertion. Simply articulating a position among a raft of other arguments without any considered submissions or analysis of the authorities places an impossible burden upon the trial judge.

86 Here, these fundamental propositions were not adhered to by Mr Kuek or his counsel. Both are officers of the Court. Each was required to be satisfied that there were reasonable grounds for making the application and, if so, counsel was obliged to provide appropriate assistance to the Court. Counsel confronted the Magistrate 'out of the blue' with an unmeritorious but serious application absent of any authority to support his assertions. Only a moment's reflection and a short perusal of the authorities would have cautioned against such a course of action.

87 On this serious matter counsel was obliged to exercise independent judgment and not to be a mere cipher of his client.[46] In my opinion in making this application counsel failed to have regard to that fundamental proposition. Mr Kuek, as an officer of the Court, is in no different position in terms of his instructions to make this application.

89 The written grounds of appeal are, in the main, unintelligible. They were correctly identified by counsel for Ms Phillips as a 'hotchpotch of complaints' and not proper grounds of appeal. That said, I think following discussion with counsel on the appeal, it is possible to distil the bases for this complaint as follows:

(a) The determination by the Magistrate of the amount owed by Mr Kuek to Ms Phillips was outside the pleaded case;

(b) That there was no evidence to support the conclusion reached by the Magistrate; and

(c) That Mr Kuek did not have an opportunity to meet the case that was ultimately the subject of the determination by the Magistrate.

90 For the following reasons none of these contentions are sustainable.

91 At the opening of the trial counsel for Ms Phillips set out, at the Magistrate's request, what the case was about:

What your Honour has before you, at its simplest, is a claim by the plaintiff for fees on the basis that she was employed by the defendant, for work and is entitled to be paid for it.[47]

92 Ms Phillips' primary case was that she should be paid at the rate of $60 per hour for the hours she worked on cases in which a successful outcome (as shown on the worksheet provided at the hearing in terms of payment of costs) was obtained. In the course of her evidence she accepted that on occasions she was paid on a percentage basis, that is, that if Mr Kuek recovered a certain percentage of his bill of costs she would receive that percentage of the hours set out on her worksheet.

93 As I mentioned earlier, Mr Kuek said that Ms Phillips worked on the basis that any payment by him to her was entirely discretionary and that, notwithstanding whether she worked one hour or 200 hours on a file, in the event that there was a claim for recovery of costs her reimbursement was entirely dependent upon Mr Kuek's munificence. Mr Kuek's counsel, when asked by the Magistrate for his defences, admitted Ms Phillips worked on files but said that his client was not obliged to pay her.

94 By the end of the trial the Magistrate, in effect, had the following three options in respect of Ms Phillips' role:

(a) She was an employee paid at an hourly rate of $60 for working up to 450 hours on the files as per her worksheet;

(b) She was an employee and that the arrangement between herself and Mr Kuek was based on an implied contractual arrangement (implied on the basis of previous cases she had worked on) that she be paid an equivalent percentage of her worksheet from the outstanding amount recovered by Mr Kuek in relation to his bill of costs; or

(c) She was never an employee of Mr Kuek's and that her only entitlement to a payment was dependent upon a discretionary allowance by Mr Kuek, notwithstanding that he may have received payment for work performed by Ms Phillips.

95 As I mentioned earlier, there is no transcript of his Honour's reasons, but it is clear that his Honour ultimately accepted proposition (b), that there was an implied contractual agreement, and awarded damages on that basis. The notes of the two instructing solicitors who were at the hearing demonstrate that his Honour rejected the proposition that Ms Phillips was not an employee - that the Magistrate regarded the true nature of the arrangement as being that Ms Phillips would be entitled to a percentage calculated on the basis on the amount recovered by Mr Kuek. The calculation was based on an aide-memoire provided to his Honour in the course of final submissions by counsel for Ms Phillips.

96 So, as to the first complaint, the pleadings (the statement of claim and defence) plainly demonstrated that the contest was over what, if any, amount was owed by Mr Kuek to Ms Phillips for her services. As I have said, Ms Phillips alleged that she was owed $27,000 based on $60 per hour for slightly more than 450 hours of work on two pieces of litigation. Mr Kuek, in his defence, denied that he owed Ms Phillips anything.

97 Endeavouring, as counsel for Mr Kuek attempted to do, to use the pleadings as a straight-jacket in a simple case of money owed for work and labour performed on Mr Kuek's behalf, was disingenuous.

98 Whilst it is true that the pleaded case did not identify in terms the arrangement which his Honour ultimately determined to be the basis for the payment, to use the words of the High Court (which I shall refer to in a moment) this was the choice of the parties in the contest and determining the terms of the arrangement between the two combatants fell well within each parties understanding of the case to be argued at trial.

99 Moreover it was counsel for Mr Kuek who introduced the concept of a proportional payment being made by Mr Kuek as the basis for the arrangement for payment as between Mr Kuek and Ms Phillips. It emerged in cross-examination of Ms Phillips on the second day, that Ms Phillips agreed she had in the past been paid a percentage commensurate with Mr Kuek's recovery of his claimed bill. Then on the following day counsel for Mr Kuek returned to the point:[48]

Mr Adami: Now, yesterday you said that the payment when you had submitted your running sheet was negotiated after the submitting of the running sheet to my client, is that right?

...

Ms Phillips: So when you say I negotiated I would provide it [to] Gabriel and then -

Mr Adami: The running sheet that is?

Ms Phillips: Yes, that is right and then he would, my understanding was... he would turn it into a format which was acceptable to the court...

Mr Adami: Yeah so you are saying he would incorporate that into the proper court form.

Ms Phillips: Yes, that is my understanding ... and then claim the work I had done in that matter.

Mr Adami: Yes and you had gotten paid only after generally speaking when my client had the money to pay you from the court order is that correct?

Ms Phillips: Yes or the settlement yes.

Mr Adami: Yes or the settlement. So you would submit your running sheet and there would be a negotiation about the amount and then my client would offer you some money. That's right isn't it?

Ms Phillips: Yeah, I am not sure there was a negotiation. What I would do is submit it and trust that the work would be transferred into the format as much as it could be ... and that I would be reimbursed. There would be some instances where Gabriel would tell me that only received 70% of the what his costs were so he would only give myself and the barrister 70% of what ours were but that was not really negotiated as much as his decision.

Mr Adami: O.K. so he would direct basically the amounts that were to be paid to the barristers to you and to him, is that correct?

Ms Phillips: Ah yes, although I cannot say that there was no negotiation between the barristers, yeah.

Mr Adami: No I simply mean that he would determine the divvying up of the award, if I could put it that way.

Ms Phillips: Yes, from what I assume to be our running sheets given to him yes.

Mr Adami: The point is, that you didn't have any agreement with my client that he would pay you your money.

Ms Phillips: Out of his own pocket no correct yes, correct. I didn't expect Gabriel to pay me anything out of his own money unless he had obtained that money on my behalf through the process.

Mr Adami: Yes and payments were only ever made when my client knew the amount of the costs or the award.

Ms Phillips: Yes.

Mr Adami: Yes because there had to be some money.

Ms Phillips: Yes.

[...]

Mr Adami: Then at his discretion he would divvy it up between you, himself and the barristers.

Ms Phillips: Yes.

Mr Adami: Sometimes it was a fixed figure he would negotiate with you and sometimes it was a percentage figure you would each be paid whatever the amount was in a particular percentage of your costs compared to what was received if you know what I mean.

Ms Phillips: Yes that is what I was advised.

[...]

Mr Adami: Sometimes it was we have been told by the court that we will get 83% of what we have claimed and therefore we will take 83% of your costs, 83% of his costs and -

Ms Phillips: Yes.

Mr Adami: So sometimes it would be just a fixed sum and sometimes it would be a percentage sum that you were awarded.

100 Having raised the point that this proportional arrangement was the basis upon which payments had been made by Mr Kuek to Ms Phillips in the past, and thus provided the foundation for the Magistrate to reach a conclusion that this was the basis for the arrangement on these two files, the proposition now put by Mr Kuek is close to bizarre. It was his counsel who established the evidentiary foundation for the ultimate finding. To now contend that there was no basis is untenable.

101 In Dare v Pulham,[49] the High Court said:

Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it; they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial; and they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court. Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial. the relief which may be granted to a party must be founded on the pleadings. But where there is no departure during the trial from the pleaded cause of action a disconformity between the evidence and particulars earlier furnished will not disentitle a party to a verdict based upon the evidence. Particulars may be amended after the evidence in a trial has closed , though a failure to amend particulars to accord precisely with the facts which have emerged in the course of evidence does not necessarily preclude a plaintiff from seeking a verdict on the cause of action alleged in reliance upon the facts actually established by the evidence ...

102 Subsequently, in Banque Commerciale v Akhil,[50] this point was elaborated upon by Dawson J:

However, that rule is merely a rule of pleading which must give way to considerations of a more fundamental kind if the justice of the case requires it. Pleadings are but a means to an end and not an end in themselves and, as was pointed out in Pirie v. Richardson, at p 453, the rule prescribes no consequence for the failure to observe it. The basic function of pleadings was described by Isaacs and Rich JJ. in Gould and Birbeck and Bacon v. Mount Oxide Mines Ltd. (In Liquidation), at p 517:

Undoubtedly, as a general rule of fair play, and one resting on the fundamental principle that no man ought to be put to loss without having a proper opportunity of meeting the case against him, pleadings should state with sufficient clearness the case of the party whose averments they are. That is their function. Their function is discharged when the case is presented with reasonable clearness. Any want of clearness can be cured by amendment or particulars. But pleadings are only a means to an end, and if the parties in fighting their legal battles choose to restrict them, or to enlarge them, or to disregard them and meet each other on issues fairly fought out, it is impossible for either of them to hark back to the pleadings and treat them as governing the area of contest.

103 Here, the issue as to arrangements in the past fell well within the parameters of the dispute between Mr Kuek and Ms Phillips over payment for the work done by Ms Phillips. It provided the foundation for an argument that there was an implied contract between the two. The legal battle and the evidence adduced in the course of the hearing, was over what was owed (if anything) by Mr Kuek. There is nothing in the first point.

104 The same goes for the third point. By the time Mr Kuek gave evidence it was known (particularly as it had been adduced by Mr Kuek's counsel) that one of the suggestions as to what may be owed was the manner of payment which had been adopted in the past and therefore the proportionality of the recovery made by Mr Kuek:[51]

Mr Kuek Yes, in most cases the money we have divvied up it would have been money that we have recovered on a party taxation it would invariably be less than Julie and I wanted to be paid. The way it would be to divide it up with the money that we recovered...

Mr Adami: Yes.

Mr Kuek So the idea was to make sure that all stakeholders in this had a fair and equitable distribution of funds that were recovered for the work we all put in.

105 The result is that Mr Kuek had every opportunity to dispute that this was the arrangement - and he did so, both in evidence in chief and in cross-examination - asserting to the end that any payment for Ms Phillips' work depended entirely upon his discretion. That was the position he defended at trial, and he had every opportunity to address alternative versions proffered by Ms Phillips.

106 Finally, as to the second, no evidence point, I adopt what was said by Bell J in Rugolino v Howard:[52]

These principles have been established in the decided cases, usually in the context of defining the proper role of a judge on appeal. So in Roads Corporation v Dacakis, Batt J held 'the question whether there is any evidence of a particular fact is a question of law.' Therefore a finding of fact is open to challenge as 'erroneous in law', but only if 'there is no probative evidence to support it'. Similarly, in S v Crimes Compensation Tribunal, Phillips JA said making a finding of fact would ordinarily give rise to an error of law only if 'it is shown that the fact-finding tribunal arrived at a finding that was simply not open to it.' His Honour emphasised that the question was not whether the finding was 'reasonably open', for that implied the court on appeal could test the finding against a reasonableness standard, but whether the finding was open at all.

107 It can be readily accepted that reimbursement for Ms Phillips' work on a file was dependent upon Mr Keuk's recovery of costs. But as part of that scenario there was testimony from both witnesses, extracted by both counsel, as to the percentage recovery arrangement utilised in the past. This provided an arguable basis for determining that moneys were owed by Mr Kuek to Ms Phillips pursuant to an implied contract. Such agreements are commonplace[53] where there is a continuing relationship and there was, as I have said, evidence to support the conclusion reached by his Honour. The Magistrate was not obliged to find the existence of such a contract, just as he was not required to find that the payment was discretionary, or that the payment was to be calculated on the basis of the workbook hours multiplied by an appropriate hourly rate. But the fact of the matter is that there was evidence to support his finding and therefore Mr Kuek's point must fail.

109 Each of the grounds of appeal has failed. Three of the four were totally unmeritorious and the other, I suspect, only arguable because of a slip of the tongue The appeal must be dismissed.

[1] The amendment to the complaint was to the endorsement of the amount claimed which features later in this judgment.

[11] Affidavit of Adele Stefanidis dated 8 February 2017; Affidavit of Joseph Ridley dated 21 February 2017.

[12] [2016] VSC 515 (1 September 2016) [10].

[13] [2006] HCA 32; (2006) 225 CLR 364, 370 - 371, [13]-[16] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ) (emphasis added and citations omitted)('Berowra').

[14] [2014] NSWCA 409; (2014) 88 NSWLR 488, 509 - 510, [100] (Leeming JA) (emphasis added).

[15] [2003] VSC 460; (2003) 9 VR 136 ('Thomas').

[20] In particular, s 18 engaging in a response to a claim that was frivolous, vexatious, and had no proper basis.

[21] A claim for statutory interest was added, but that was always open and could hardly have been argued.

[22] Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1, 16 [48].

[23] Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 137 CLR 487, 513-514.

[24] [1986] HCA 54; (1986) 161 CLR 141, 145. See also MH6 v Mental Health Review Board [2009] VSCA 184 (20 August 2009), [29]-[33].

[25] See Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106, 116-117.

[27] See s 47(2).

[34] [2000] HCA 63; (2000) 205 CLR 337 ('Ebner'), [19].

[40] (Unreported, Supreme Court of New South Wales, 6 April 1995, Mahoney JA) ('Mortimer') 11-12 (emphasis added).

[41] (1977) 1 NSWLR 378, 396 (emphasis added).

[42] [1997] 1 VR 332, 342.

[43] Ebner, 348 [19]-[20] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

[44] [1986] HCA 39; (1986) 161 CLR 342, 352.

[45] [2008] VSCA 86; (2008) 66 ACSR 325, 354 [194].

[46] Giannarelli v Wraith (1998) 165 CLR 543, 556; Legal Profession Uniform Conduct (Barristers) Rules 2015, Rule 23.

[48] CB 267, CB 275.

[49] (1982) 148 CLR 658, 664 (emphasis added and citations omitted).

[50] (1990) 169 CLR 279, 292 - 293 (emphasis added and citations omitted).

[52] [2010] VSC 590 (17 December 2010), [10].

[53] See Hendricks v McGeogh [2008] NSWCA 53, [39], and for a practical application see: Sin Development Pty Ltd v Greenvale Property Pty Ltd [2017] VSC 335, [79].