Victorian Civil & Administrative Tribunal Act 1998 s.109; immunity from suit claimed; Tribunal may make costs order in favour of party entitled to immunity from suit.

Juanillo v McNab, McNab & Starke (Legal Practice) [2010] VCAT 109

1. The Tribunal finds that the respondent was entitled to claim immunity from suit, as it did.
2. The applicant is to pay the respondent's costs of the application, calculated on a party/party basis on Magistrates' Court scale "E", with any necessary adaptations. The Tribunal certifies that it was reasonable for the respondent to engage counsel. The respondent is to serve upon the applicant a bill of costs in taxable form. In the absence of agreement as to the amount of the costs, the costs are to be assessed by the Costs Court.

1. I gave a decision orally at the conclusion of this hearing. I gained the impression that Mr. Juanillo might not have understood the reasons for my decision, so I informed him that I would put the reasons for my decision in written form.

1. McNab, McNab & Starke acted for Mr. Juanillo in family law proceedings. The matter was handled at McNab, McNab & Starke by Mr. Cudlipp, an Australian legal practitioner. Mr. Juanillo is dissatisfied with the manner in which his matter was handled by Mr. Cudlipp.
2. Mr. Juanillo provided particulars of his application, which included 20 allegations of negligence on the part of Mr. Cudlipp.

THE SUBMISSION MADE AT THE COMMENCEMENT OF THE HEARING:

1. At the commencement of this hearing, counsel for McNab, McNab & Starke claimed immunity from suit. In addition, counsel submitted that the allegations made by Mr. Juanillo amounted to a collateral attack upon a judgment given by the Federal Magistrates' Court on 8 August 2008.
2. I decided to allow Mr. Juanillo to give his evidence in chief. I wanted to ensure that I fully understood the allegations made by Mr. Juanillo before I gave rulings concerning immunity and collateral attack.

1. The proceedings in the Federal Magistrates' Court were brought by the wife of Mr. Juanillo. Mrs Juanillo sought parenting orders in respect of their two children, and sought orders concerning real and personal property.
2. Mr. Cudlipp briefed Mr. G. Combes of counsel to appear for Mr. Juanillo at the final hearing, which took place on 10 June 2008. Mr. Juanillo gave evidence about the hearing. He said that both Mr. Cudlipp and Mr. Combes were in attendance. He said that he discharged Mr. Combes shortly before the hearing commenced, and told Mr. Combes that he would appear on his own behalf. He said that Mr. Combes informed the magistrate that Mr. Combes had been "sacked". Mr. Juanillo said that he asked the magistrate for an adjournment, but an adjournment was refused.

1. The evidence of Mr. Juanillo made it apparent to me that his 20 allegations of negligence were in reality two allegations.
2. The first allegation concerned a parenting order. Mr. Juanillo gave evidence about information concerning his wife which he gave to Mr. Cudlipp because the information was relevant to parenting. He alleged that Mr. Cudlipp did not include all of the information in affidavits filed in the proceedings. He maintained that he would have obtained a more favourable order if the information had been included.
3. I was provided with a copy of the judgment of Mr. O'Sullivan FM. The judgment shows that an interim parenting order was made by consent on 17 March 2008: paragraph [18]. The judgment also shows that Mr. Juanillo and his wife asked the magistrate at the final hearing to make a final parenting order identical to the interim order: paragraph [43]. The magistrate stated that he was satisfied that the order was in the best interests of the children, and made the order sought: paragraph [43]. When I put these paragraphs to Mr. Juanillo, he replied that the order was "illegitimate" because he wanted a different order.
4. I would be satisfied that Mr. Juanillo consented to the parenting order, with the result that his allegation that Mr. Cudlipp should have included more information in the affidavits does not lead anywhere.
5. The second allegation concerned a mortgage secured on the former matrimonial home. Mr. Juanillo gave evidence that he provided Mr. Cudlipp with information about his wife to the effect that she spent money recklessly. Mr. Juanillo maintained that this information would have caused the Court to make an order requiring Mrs Juanillo to indemnify him in respect of repayments under the mortgage. He said that Mr. Cudlipp did not include all of this information in affidavits or a financial statement filed in the proceedings, with the result that he was ordered to pay half of the repayments under the mortgage.
6. The judgment shows that on 16 January 2008 Mr. Juanillo consented to an interim order in which he agreed to pay half of the repayments under the mortgage, and that he was represented when the order was made: paragraph 60. The judgment also shows that at the commencement of the final hearing, when Mr. Juanillo was appearing for himself, he sought an order that his wife make all repayments under the mortgage: paragraph [58]. The judgment states that Mr. Juanillo was given an opportunity to cross-examine his wife, an opportunity to give evidence, and an opportunity to make submissions : paragraphs [69] & [70]. The judgment proceeded to deal with the assets of Mr. & Mrs. Juanillo in great detail. The magistrate found that there was no evidence that Mrs Juanillo had spent money recklessly: paragraph [170]. The magistrate stated that he was satisfied that it was just and equitable that Mr. & Mrs. Juanillo each be responsible for half of the repayments under the mortgage: paragraph [172]. He made an order to that effect.
7. I put most of these matters to Mr. Juanillo, and he replied that the order was "illegitimate" because he did not get the order he wanted. Even if Mr. Cudlipp did not include in the affidavits or the financial statement all of the information provided by Mr. Juanillo, I would be satisfied that the magistrate was well aware of the case being put by Mr. Juanillo. In any case, Mr. Juanillo had an opportunity to give oral evidence to supplement the affidavits.

1. Having gained a better understanding of the allegations made by Mr. Juanillo, I ruled that the non-inclusion of information in affidavits or a financial statement filed in the proceedings, even if that occurred, was intimately connected with preparation of the case for trial, thus entitling McNab, McNab & Starke to claim immunity from suit: see G_iannarelli v Wraith_ (1987-88) 165 CLR 543; Keefe v Marks (1989) 16 NSWLR 713; and D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1.

1. Mr. Juanillo gave evidence that he did not appeal from the decision of the Federal Magistrates' Court, and that he has not sought to have the order concerning the mortgage set aside or varied under s.79A of the Family Law Act 1975.
2. I ruled that, even if McNab, McNab & Starke was not entitled to claim immunity from suit, Mr. Juanillo was endeavouring to make an impermissible collateral attack upon the decision of the Federal Magistrates' Court: see Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13; [1982] AC 529; and Somasundaram v M. Julius Melchior & Co [1988] 1 WLR 1394. In other words, implicit in his allegations is a contention that the orders made by the Federal Magistrates' Court were not just and equitable. As I have mentioned, the magistrate was satisfied that the orders were just and equitable: paragraphs [43] & [172].

1. Counsel for McNab, McNab & Starke sought an order that Mr. Juanillo pay the costs of the proceedings. He submitted that Mr. Juanillo had conducted the proceedings vexatiously, which is a ground upon which a costs order can be made under s.109 of the Victorian Civil & Administrative Tribunal Act 1998.
2. I considered the effect of the fact that McNab, McNab & Stake is immune from suit. The Tribunal does not have power to award costs under s.109 if it does not have jurisdiction to hear the substantive application: Duncan v Simon Parsons & Co [2009] VCAT 830. The Tribunal did have jurisdiction to hear and determine the application brought by Mr. Juanillo. However, as soon as McNab, McNab & Starke claimed immunity from suit in respect of that application, the Tribunal could not proceed to exercise its jurisdiction. My opinion was that McNab, McNab & Starke remained able to make its own application for the costs of the proceedings.
3. In Oceanic Sea Line Special Shipping Co v Fay [1988] HCA 32; (1988) 165 CLR 197 @ 247, Deane J said that " "vexatious" should be understood as meaning productive of serious and unjustified trouble and harassment".
4. I found that Mr. Juanillo conducted these proceedings in a manner that caused serious and unjustified trouble and harassment to McNab, McNab & Starke, for three reasons. First, Mr. Juanillo pursued an allegation that Mr. Cudlipp failed to include in an affidavit information relevant to parenting, in circumstances where Mr. Juanillo appeared for himself before the Federal Magistrates' Court and consented to the parenting order. Secondly, Mr. Juanillo pursued an allegation that Mr. Cudlipp failed to include in an affidavit information relevant to the mortgage, where it was clear from the judgment that the magistrate was well aware of the case being put by Mr. Juanillo, and where the magistrate gave Mr. Juanillo an opportunity to supplement the affidavits filed in the proceedings by giving oral evidence. Thirdly, throughout the hearing Mr. Juanillo persisted with his collateral attack upon interim and final orders made by the Federal Magistrates' Court. He regularly stated that the orders were "illegitimate" or "invalid" because they were not the orders that he wanted.
5. I will order that Mr. Juanillo pay to McNab, McNab & Starke its costs of the proceedings, calculated on Magistrates' Court scale "E". In the absence of agreement as to the amount of the costs, the costs are to be assessed by the Costs Court.