Kuek v Victoria Legal Aid & Anor [2001] VSCA 80

[ 2001] VSCA 80

Courts - Practice and procedure - Magistrates' Court - Dismissal of civil claim - Appeal on questions of law out of time - Originating motion seeking leave to appeal or alternatively prerogative relief for error of law - Leave to appeal refused by Master and on appeal by judge - Claim for prerogative relief tried subsequently - Relief refused - Exercise of discretion, not absence of jurisdiction - Magistrates' Court Act 1989 s.109.

2. I am inviting Phillips, J.A. to deliver the judgment in this appeal.

7. On 3 September 1996 and 5 September 1996 respectively the appellant Kuek filed complaints in the Magistrates' Court of Victoria against the first-named respondent, Victoria Legal Aid, seeking the payment of costs to which he claimed to be entitled after acting for two legally assisted persons - in the one case a man named Nguyen, and in the other, Rodriguez. The circumstances giving rise to the complaints were similar and the causes of action were the same, being framed in contract, for quantum meruit, for damages for unconscionable conduct under the Trade Practices Act 1974(Cth) and the Fair Trading Act 1958(Vic.) and for account stated. The two cases were heard together in the Magistrates' Court on 18, 19 and 24 June 1998. The magistrate took time for consideration and on 17 December 1998 she dismissed both complaints.

10. The appellant then sought to commence two appeals in the Supreme Court under s.109(1) of the Magistrates' Court Act 1989. Each appeal was supported by an affidavit affirmed by the appellant himself on 1 February 1999. On 2 February the appellant went before the Master seeking an order to commence the appeal under Rule 58.09 of Chapter 1 of the Rules. The Master declined to entertain the application as being out of time under s.109(2). That sub-section allows 30 days and the appellant, it seems, miscalculated owing to the intervention of the Christmas-New Year break.

13. Where an appeal is out of time by reason of s.109(2) the appeal can be commenced only with leave under s.109(4) and such leave must be sought by originating motion: see Rule 58.16. Accordingly, on 15 February 1999 the appellant filed an originating motion seeking leave to commence the two appeals out of time or, if that application failed, alternative relief by way of judicial review under Order

56 of Chapter 1. The originating motion, which named Victoria Legal Aid as first defendant and the Magistrates' Court as the second, was supported by another affidavit of Mr Kuek (affirmed on 15 February 1999) in which the deponent relied upon his earlier affidavits of 1 February.

17. On 22 April 1999 the Master refused leave under s.109(4), in effect thereby refusing to extend the time for appeal under s.109. The appellant promptly appealed to the judge in the Practice Court under Order 77, but that appeal was dismissed by Beach, J. on 18 May 1999: Kuek v. Victoria Legal Aid and Another[1]. No appeal was instituted from that dismissal.

20. As for the rest of the relief mentioned in the originating motion - that is, the relief sought under Order 56 - the Master had given directions on 22 April for the filing and service of affidavits and, in the result, yet a further affidavit was filed in support, this time an affidavit affirmed by the appellant on 31 May 1999 and recounting, inter alia, the failure of the application for leave to appeal under s.109(4). This was the affidavit on which the proceeding was continued.

23. In terms the originating motion sought, in the alternative to leave under s.109(4), an order setting aside the orders made in the Magistrates' Court on 17 December 1998 and in lieu judgment in favour of the plaintiff in each case. The appellant was presumably thereby seeking under Order 56 an order in the nature of certiorari and, in addition, he sought "any ancillary, declaratory, injunctive or mandatory orders as [the court] deems fit". The originating motion then proceeded under the heading "Judicial Review" to identify 15 alleged errors in the decision-making of the magistrate in the matters which had been heard and determined in the Magistrates' Court - both the Nguyen matter and the Rodriguez matter.

26. The appellant's claim for judicial review came on for hearing in the Trial Division on 8 November 1999. There is of course a real question whether it was open

to the appellant to join in the one originating motion application for judicial review under Order 56 in relation to two proceedings in the Magistrates' Court, albeit that the two had been heard together. But no point was made of that by the parties at first instance and so, like the trial judge, I refrain from saying anything further about it. On 15 November 1999 the appellant's claim was dismissed with costs. It is from the orders made on 15 November that the appellant now appeals.

29. In the reasons for judgment which were delivered on 15 November the judge carefully considered each of the 15 grounds relied on in the originating motion to support relief under Order 56. In her Honour's opinion none of the grounds was made out and she so concluded in paragraph 28. But Her Honour went further. After considering the provisions of s.109 of the Magistrates' Court Act and relevant authority, she said (in paragraph 42 of the reasons for judgment):

"For these reasons, I would in any event dismiss the proceeding on the basis that the court has no jurisdiction to hear the matter. Alternatively, on the basis of the approach adopted by the Court of Appeal in D.J.C. V. Burg I would decline to exercise the discretion sought by the plaintiff".

The appellant now challenges the conclusion in paragraph 42 and in part the earlier conclusion that the application lacked merits.

34. I turn first to the merits. As explained in Craig v. South Australia[2], certiorari (which includes relief in the nature of certiorari) will be granted only for jurisdictional error, want of procedural fairness, fraud or error of law on the face of the record. Of the 15 grounds identified in the originating motion, some may be argued as falling within the first or second of these categories and others within the fourth. Of the former kind, two of the grounds relate to rulings on evidence made by the magistrate in the course of the hearing and it may be doubted that such could sustain a grant of certiorari, but neither is now pursued and so I say nothing more of that.

37. The one ground now pursued and which is - or is arguably - within the category of jurisdictional error or want of procedural fairness is the alleged failure by the Magistrates' Court to "provide proper and/or adequate reasons for its decision". Again, I do not pause to consider the proper characterisation for these purposes of such a failure, or indeed the relevance of such an allegation to the claim for judicial review, and in particular certiorari, when directed to an inferior court as distinct from a tribunal; for it is enough that that allegation simply fails on the facts. That was the opinion of the trial judge and, with respect, that was plainly right.

40. The magistrate's reasons for judgment, which are set out in a paragraph of the affidavit in support (that which was affirmed on 31 May 1999) and are also Exhibit "GK-M" to that affidavit, deal comprehensively with the two proceedings being determined. The circumstances leading to the litigation were rehearsed, the claims made and the defences raised were identified and the evidence described, albeit briefly. Each of the four legal bases upon which the appellant rested his claims was dealt with separately and reasons given for its rejection. The complaint now pursued on this appeal centres only on the treatment of the claim in contract as to which the magistrate said this:

"The claim of the plaintiff relies on whether or not there was a contractual relationship between the parties, and the plaintiff submits that there has been an offer and an acceptance which has resulted in an enforceable agreement which is to be enforced by this court. Such a claim, in my view, ignores the statutory basis on which the system of Legal Aid operates in Victoria".

Nor, the magistrate added, was there any evidence of an implied contract.

45. Now, the claim made by the appellant was not for fees or costs agreed by Victoria Legal Aid. It was for what he said should be paid to him over and above what had been previously authorised by Legal Aid and, perhaps somewhat belatedly, paid to him. The appellant filed his complaints seeking, in effect, an increase in the fees otherwise payable because, he said, as I followed it, he had done more work than had been foreseen. In my view, the magistrate gave adequate reasons for rejecting this claim by saying that in her opinion such a claim made no allowance for the provisions of the statute (i.e., the Legal Aid Act 1978). Mr Nash submitted that this was insufficient because it did not deal with the particular provisions of the statute which could be called in aid of the claim as he sought to demonstrate. But the matter was not pleaded by reference to provisions of the statute, nor, we were told, was that how the matter was argued. The pleading alleged a contract between Victoria Legal Aid and the solicitor and, it seems, the breach of an implied term to act reasonably or at all events not to act arbitrarily in fixing or settling the ceiling for fees. It was in answer to this that the magistrate was unpersuaded that the statute allowed for any such contract or term.

48. In the end, Mr Nash did not pursue the question of the sufficiency of the magistrate's reasons otherwise than as an adjunct to his submission that the magistrate had erred in law in rejecting, on the merits, the appellant's claim in contract. His argument was that her Worship must have misinterpreted the statute governing legal aid. Of the 15 grounds taken in the originating motion many of them asserted an error of law on the face of the record, but this was the only one pursued on this appeal. The judge upheld the magistrate's rejection of the claim in contract, and according to the notice of appeal this was error on the part of the judge. There is no need, however, for us to rule on the merits of this particular argument; for in my opinion the appeal can be disposed of by reference to the other ground taken by the judge, being that in paragraph 42 of her reasons.

51. It was common ground before us that certiorari may go for error of law on the face of the record. Of course, in this instance the error asserted by the appellant lay wholly within the reasons for judgment delivered by the magistrate, but it may be taken for present purposes that in Victoria the reasons do form part of the record if only by virtue of s.10 of the Administrative Law Act 1974: Thompson v. Judge Byrne[3] and R.S.L. v. Liquor Licensing Commission[4]; compare Craig[5]. That allows the appellant to raise the argument he seeks to put, but the argument must immediately confront the difficulty that error of law is the very foundation of an appeal from the Magistrates' Court to this court under s.109 of the Magistrates' Court Act . Under s.109(1) such an appeal is permitted only on a question of law and by sub-s.(2) the appeal must be instituted within 30 days. Section 109(4) provides the only avenue for bringing an appeal out of time: such an appeal needs leave. In this instance leave was sought and refused, first by a Master and then by a judge, and so the appellant could no longer appeal. In substance the application for judicial review was no more and no less than the appellant's attempt to appeal by another means and so much was tacitly acknowledged by the form of the originating motion in that it sought leave under s.109(4) and judicial review in the alternative. The judge held that in those circumstances the appellant could not succeed under Order 56, and I agree.

54. It is important that in relying in the originating motion upon alleged errors of law on the face of the record, the appellant was seeking on his application under Order 56 to raise matters that could have been agitated on appeal under s.109 had his appeals been in time. A claim for jurisdictional error, if properly established, might be in different case, but I am not now dealing with that. In relation to alleged errors of law, the appellant was not seeking recourse to Order 56 because of some alleged defect or insufficiency in the appeal permitted under s.109. As pointed out by the trial judge, the appellant was seeking merely to circumvent one of the limitations quite plainly imposed on an appeal by s.109 and it cannot be that a would-be appellant, who fails to act in timely fashion under s.109, can re-cast his or her appeal as an application for judicial review under Order 56 where the time limit is not 30 days but 60. Ashley, J. said in Stefanovski v. Murphy[6] at first instance:

"I have serious doubts whether the Order 56 procedure is available where a final order has been made by a Magistrates' Court where the matter sought to be raised by originating motion could be agitated on appeal under s.92".

His Honour was speaking of an appeal under s.92, but like considerations obtain in respect of an appeal under s.109. In my opinion, this Court should now affirm that, unless there are indeed exceptional circumstances, a litigant may not raise for determination under Order 56 - or at all events may not raise with any real chance of success - a matter or thing which is proper for determination on an appeal where that very litigant has a right of appeal under s.109. In other words, if the proper course is an appeal under s.109, albeit an appeal which is subject to the limitations imposed by that section, the litigant cannot choose at his or her option to turn to Order 56 as an alternative. As has been said, judicial review should not be seen as a means of appealing from the decision of a magistrate: Marrington v. Miller[7], Stefanovski v. Murphy[8]; see also Craig[9].

59. As already seen, her Honour dealt with the availability of the relief under Order 56, first as a matter of jurisdiction, and then in the alternative as a matter of discretion. In support of the first, her Honour referred to the remarks of McHugh, J. in Waters v. Public Transport Commission[10], but on any view the legislation there was somewhat different. For myself, I prefer to rest the decision that the appellant does not succeed here on the exercise of discretion, lest by referring to jurisdiction the powers of the court under Order 56 be unintentionally circumscribed. That it is a matter of discretion seems to me more in line with other authority and reference may be made to the cases relied upon by Mr Nash: Re Comalco (Bell Bay) Limited[11], Re Wilcox, ex parte Venture Industries Pty Ltd[12] and D.J.C. V. Burg[13]. It is perhaps a moot point whether a case will arise in which it would be proper, despite the right of appeal conferred by s.109, to exercise the discretion in favour of relief by way of judicial review after error of law on the part of a magistrate, but I need not decide it. It is enough, that as at present advised, I would not altogether exclude it. As I have already said, such a case would surely depend upon exceptional circumstances.

62. For the appellant Mr Nash submitted that the judge fell into error in resting her decision on the absence of jurisdiction. He argued that s.109 of the Magistrates' Court Act did not deny jurisdiction under Order 56, although he accepted that the existence of the right of appeal must affect the exercise of discretion. So far, I do not disagree. Building on that, however, counsel then sought to persuade us that her Honour's exercise of the discretion had miscarried, although it is a question whether that is encompassed by any ground of appeal. Mr Nash rested on ground 6, but I doubt that that raises this point sufficiently. However that may be, I reject the argument that the discretion miscarried below.

65. In putting his argument on this aspect Mr Nash relied first upon the error which, he said, tainted the magistrate's decision, submitting that her Worship's view of the statute governing legal aid must have been flawed and that that error was so plain it cried out for correction. I must say that, despite counsel's argument to that effect, I am not yet persuaded that there was error in that regard; certainly it is not so plain to me as Mr Nash suggested. Secondly, counsel relied upon the very loss by the appellant of the right to appeal, submitting that the test required by s.109(5) before leave could be granted to appeal out of time, being cast in terms of "exceptional circumstances" was very high and should not operate therefore to preclude a would-be appellant seeking alternative relief by way of judicial review if leave to appeal is refused. Again, I am not persuaded. Section 109 allows an appeal on a question of law if the appeal is commenced within 30 days or leave is obtained under s.109(4). The implied injunction that leave be granted only as provided by s.109(5) is part and parcel of the scheme which limits the right of appeal. The fact that the appeal cannot be brought may have to be considered but it will ordinarily be more important that there was a right of appeal and it was not employed. That is surely so here where leave was refused under s.109(4) because Beach, J. did not regard as an acceptable explanation for the delay the miscalculation made by the solicitor (which the solicitor sought to attribute to incorrect advice from counter staff within the court). As his Honour pointed out in his reasons for judgment, it was up to the solicitor to acquaint himself with the requirements of and then to

69. Mr Nash then submitted that if relief under Order 56 was properly refused though the right to appeal had been lost, it must follow that the discretion to grant relief could never be exercised in favour of an applicant under Order 56 when judicial review was sought in respect of an order of the Magistrates' Court: it could always be said, it was suggested, that there was a right of appeal, whether or not it was employed. And if judicial review could never be obtained because of s.109, it must follow, he submitted, that there was in truth no jurisdiction to grant such relief, the very conclusion that for good reason was being rejected. But that argument reads too much into the conclusion that the appellant should fail in this case. First, there will not always be a right of appeal unless every ground for judicial review can properly be characterised as giving rise to a question of law under s.109(1). Moreover, even if that were so - and I am far from saying that it is - there may not always be a right of appeal available. Suppose, for example, in D.J.C. v. Burg the time limit for appeal had passed before the facts had become known. In my opinion, despite Mr Nash's interesting argument, the conclusion remains valid, that the appellant fails here because the discretion to grant relief under Order 56 was not to be exercised in his favour.

72. For the reasons I have given, I think that the trial judge was correct to dismiss the application for judicial review which was made in the alternative to the application for leave under s.109(4). What I have said is sufficient to dispose of the four grounds in the notice of appeal that were pursued in argument, and I would dismiss the appeal.

77. For the reasons given by Phillips, J.A., I agree that the appeal should be dismissed.

[1] [1999] VSC 158.

[2] [1995] HCA 58; (1995) 184 C.L.R. 163 at 174-5.

[3] [1998] 2 V.R. 274 at 280.

[4] [1999] VSCA 37; [1999] 2 V.R. 203 at 209.

[6] [1996] VicRp 78; [1996] 2 V.R. 442.

[7] [1993] VicRp 29; [1993] 1 V.R. 391 at 396.

[10] [1991] HCA 49; (1992) 173 C.L.R. 349 at 415-6.

[11] (1995) 70 A.L.J.R. 142.

[12] (1996) 66 F.C.R. 511 at 535.

[13] [1998] VSCA 139.