Plaintiff/Appellant v Defendant

3 Melbourne Injury Lawyers commenced acting for Mr Tomasevic on a no win - no fee basis in October 2013. The agreement between the firm and Mr Tomasevic included a condition that Mr Tomasevic must co-operate with the firm and accept reasonable advice. If he did not do so, the firm reserved the right to terminate its agreement to act on his behalf.

4 As a result of a number of matters, the firm now contends that the relationship between it and Mr Tomasevic 'has irretrievably broken down'. In these circumstances, the firm sought leave under r 20.03 of the Supreme Court (General Civil Procedure) Rules 2005 to file a notice that it has ceased to act for Mr Tomasevic. It was necessary for an application for leave to be made, because the proceeding had been fixed for trial on 17 November 2014.

5 The firm relied upon the affidavit sworn by the solicitor with the conduct of Mr Tomasevic's matter, Katherine Wilson. Ms Wilson's affidavit was sworn 12 June 2014. In her affidavit, Ms Wilson deposed:

(1) In paragraph 8, that she met with the plaintiff to discuss his behaviour and interaction with the firm's staff and the fact that 'he did not seem to be developing any level of trust in respect of the abilities of [the] firm to conduct his litigation'. Ms Wilson deposed that she advised Mr Tomasevic that, in the event that he did not follow reasonable advice, it was possible that the firm would cease to act for him. In an affidavit which Mr Tomasevic was given leave to file on appeal, he deposed that he 'strongly' disagreed with this paragraph of Ms Wilson's affidavit.

(2) In paragraph 9, Ms Wilson deposed to an email sent to Mr Tomasevic in which she confirmed his 'request to constantly be provided with updates' regarding his claim and time limits. She explained in the email that constant provision of information to Mr Tomasevic would increase his 'solicitor client costs at the finalisation of [his] claim'.

(3) In paragraph 10, Ms Wilson deposed to a meeting with the plaintiff on 28 February 2014. The purpose of the meeting was for Mr Tomasevic to swear his affidavit of documents. Ms Wilson deposed that Mr Tomasevic again requested to be provided with a copy of all documents received or sent by the firm 'as he was unable to trust lawyers given his previous experiences'. A discussion then ensued as to the need for the plaintiff to develop trust in his legal team and Ms Wilson's concern about incurring unnecessary costs in complying with Mr Tomasevic's requests. In his reply affidavit, Mr Tomasevic said that he complained about the fact that the firm had granted the defendant a two week extension to file a defence without his express instructions and that, in response, Ms Wilson 'became very angry' but later apologised.

(4) In paragraph 11, Ms Wilson deposed to a meeting with Mr Tomasevic on 29 April 2014 during which she raised reports to her that there had been 'recent acrimonious events' between Mr Tomasevic and his WorkSafe claims agent. Mr Tomasevic did not accept that his behaviour towards the WorkSafe claims agent was threatening and expressed a concern that Ms Wilson 'would accept bribes from the defendant's solicitors to undermine his case'. There was then a discussion about an issue in the case, about which Mr Tomasevic was not prepared to accept her advice. In his reply affidavit, Mr Tomasevic disagreed with this account of the conversation in one respect. He deposed that Ms Wilson accepted that the communications he had with the WorkSafe claims agent were 'nothing to do with her representation in [his] civil matter'.

(5) In paragraph 12, Ms Wilson deposed to a further meeting with Mr Tomasevic on 6 June 2014. The purpose of the meeting was to discuss complaints which had been made to her by the firm's staff 'about the tone and volume at which the plaintiff was conducting telephone conversations with [the firm's] staff, his unwillingness to accept information provided to him and his unwillingness to listen to any responses made to his enquiries'. Ms Wilson deposed that Mr Tomasevic replied that:

he did not trust us, that he believed he was being provided with incorrect information and that he was still very upset that I had arranged to see him previously because the claims agent had requested this.

Ms Wilson responded to the effect that, as Mr Tomasevic was unwilling to listen to her, she could construe his current behaviour as threatening and abusive and it had become clear that Mr Tomasevic would be unable to develop the appropriate relationship with her to enable her to continue acting on his behalf. She continued:

I said that it was clear that [Mr Tomasevic] did not trust me and he agreed. [Mr Tomasevic] became personally abusive towards me to the extent that a number of my staff were able to hear from a closed conference room various insults and threats directed towards me by [Mr Tomasevic].

Mr Tomasevic deposed in his reply affidavit that he again mentioned his concerns about the WorkSafe complaints about his conduct and an unrelated matter concerning $30,000 in funding. Further, when he was informed that Ms Wilson was taking an extended holiday a few days later, he informed Ms Wilson that her conduct was having a negative impact on his wellbeing (panic attacks often, high blood pressure permanently) and that this was 'a direct result of her various failures'.

(6) Ms Wilson concluded her affidavit in paragraph 13 with the statement that she believed the relationship between Mr Tomasevic and the firm had 'irretrievably broken down'. Leave to withdraw as his solicitor on the record was sought on that basis.

6 The firm's application for leave to cease acting was heard by an associate justice on 31 July 2014. There was a dispute as to whether Ms Wilson's affidavit had been served the previous evening, in the sense that Mr Tomasevic said that he could not recall receiving it previously but 'would accept if the barrister can prove that they sent me in professional way previously' that it had been served before that time. On that account, Mr Tomasevic's own appeal book contains a copy of the signed covering letter sent by Registered Post to him on 19 June 2014 enclosing the firm's summons seeking leave to withdraw, Ms Wilson's affidavit and the proposed notice of solicitor ceasing to act. It is necessary to mention these matters because Mr Tomasevic sought an adjournment to enable him to place a reply affidavit before the associate justice and, moreover, to enable him to cross-examine Ms Wilson on her return from leave in late August. The associate justice refused the requested adjournment, on the basis that:

It seems to me that an adjournment would be of no benefit in terms of advancing this application for the Court. Ultimately, the Court has evidence before it of an officer of the Court who has set out in quite some detail the reasons why it is inappropriate for Melbourne Injury Lawyers to continue to act.

To my mind, it would not be in the interests of justice to allow a situation to continue whereby these solicitors were forced to act on the record in circumstances where the evidence squarely points to a complete breakdown of the professional relationship.[1]

7 Further, the associate justice obviously took into account, in refusing Mr Tomasevic's application for an adjournment, the fact that a trial date was looming and that he needed 'an opportunity to obtain new lawyers to assist him in the preparation of this case given the pending trial date'.[2]

8 Mr Tomasevic has appealed the associate justice's decision under r 77.06. Before turning to the grounds of appeal, it is necessary to record that appeals from associate justices are no longer by way of rehearing de novo. Such appeals are rehearings in the ordinary sense, which require the appellant to show error on the part of the associate judge before appellate power may be exercised, and particular caution will be exercised in reviewing discretionary decisions on matters of practice and procedure, such as in this case.[3]

9 Mr Tomasevic's grounds of appeal are expressed in vague terms. This is understandable, given that he is now representing himself. In accordance with the Court's overriding duty to ensure a fair hearing,[4] I endeavoured to assist Mr Tomasevic to articulate the precise matters relied upon in support of his generally expressed grounds of appeal. Although Mr Tomasevic spoke repetitively, and often over the top of me while I was trying to assist him, his grounds of appeal emerged in discussion.

10 First, Mr Tomasevic contends that the associate justice ought to have adjourned the application to allow him time to file an affidavit in response, in the form or to the effect of that which has been filed on appeal, and to cross-examine Ms Wilson after her return from holiday in late August. Alternatively, he contends that the associate justice ought to have allowed him to give his version of events by oral evidence on oath during the course of the hearing.

11 For the reasons given by the associate justice, I do not accept that there was any error by the associate justice in refusing the application for an adjournment and refusing Mr Tomasevic the opportunity to give evidence in response to Ms Wilson's affidavit. As Mr Tomasevic's reply affidavit admitted on appeal demonstrates, such a process would only have served to inflame the nature of the dispute between Mr Tomasevic and the firm, thus making the possibility of him trusting the firm and being able to work together with the firm even more difficult. Moreover, in the course of his oral submissions on appeal, Mr Tomasevic repeatedly stated that he did not trust anyone as a result of his psychiatric injuries, and that he believed Ms Wilson and the firm had been negligent in representing him, and that Ms Wilson had been 'poisoning' his case. He accused the firm of using a significant aspect of his psychiatric injury, his inability to trust people, against him in the firm's application to cease to act on his behalf. He contended that he believed the firm had not acted in good faith in this regard, but had acted to exploit his lack of trust in people to justify them withdrawing as his solicitor.

12 In these circumstances, particularly having regard to the fact that the proceeding is fixed for trial and that Mr Tomasevic needed an opportunity to engage new lawyers if he was able to do so, the associate justice did not act in error when she refused the application for an adjournment. As Mr Tomasevic's reply affidavit and his submissions on appeal demonstrate, that would only have served to add to the irretrievable breakdown of the relationship between him and the firm.

13 Second, Mr Tomasevic contends that the associate justice gave insufficient weight to his medical condition as contained in a medical report by his psychiatrist, Dr John Cooper. The medical report was before the associate justice. It is dated April 2013. It commences by stating that Mr Tomasevic 'is in the middle of a severe depressive relapse that dates to December [2012]'. Dr Cooper said that he had 'strongly recommended' that Mr Tomasevic be hospitalised but that Mr Tomasevic had refused. The associate justice considered this psychiatric report. She referred to it in her reasons in the following terms:

Mr Tomasevic referred to the solicitor ceasing to act causing him catastrophic prejudice and provided the Court with a report dated 10 April 2013 by Dr John Cooper, psychiatrist, which refers to Mr Tomasevic's depression and psychiatric issues which he was suffering at the time. The report does not identify any prejudice caused by Ms Wilson or prejudice caused by the current solicitors ceasing to act.[5]

14 I do not think that any error has been shown in this regard. Dr Cooper's report is dated more than a year before the application by the firm for leave to cease acting for Mr Tomasevic. While I accept that the loss of his lawyers is likely to cause him some anxiety, given his psychiatric condition, that does not provide a sound reason for refusing leave for the firm to cease acting, in the circumstances of this case. As the High Court stated in Plenty v Gladwin in the context of the High Court rules to similar effect as r 20.03:

The purpose of the rule is quite different. Its concern is with the record of the Court and with the service of documents. It comes into play when, rightly or wrongly, a solicitor has ceased to act and the party has not given notice of change of solicitor or notice of intention to act in person. The solicitor may then take steps to have his name removed from the record. The first step is by applying to the Court or a Justice for an order declaring that the solicitor has ceased to be the solicitor acting for the party in the proceeding. As we have noted the Court has a discretion whether or not to make the order, but unless there are special circumstances which render it expedient to retain the solicitor on the record the order will generally be made as a matter of course upon proof that the solicitor has in fact ceased to act for the party and that no steps have been taken to take the solicitor's name off the record.[6]

15 Third, Mr Tomasevic contends that the associate justice 'applied the wrong test' to the exercise of her discretion. In ground 1 of his notice of appeal, he expressed the test as being satisfied of 'exceptional circumstances' before leave is granted. There is no support for such a test. No error has been shown in this regard.

16 Fourth, in ground 2 of his notice of appeal, Mr Tomasevic complains that the associate justice did not perform her duty to give him as a self-represented litigant 'certain guidance and assistance and thereby breached the rules of natural justice'. In argument, Mr Tomasevic could not point to any relevant guidance that he was not given. Rather, he relied upon his other grounds of appeal as discussed above.

17 Fifth, by ground 4 of his notice of appeal, Mr Tomasevic complains that the associate justice 'ignored the fact that [he] has merit and a good case to run in the final hearing'. In my opinion, this ground is irrelevant to the discretion which the associate justice was exercising.

18 No error having been shown in the associate justice's decision, the appeal must be dismissed. For completeness, I would add that, had the rehearing been one by rehearing de novo, I would have dismissed the appeal. The evidence as a whole, including Mr Tomasevic's reply affidavit, together with Mr Tomasevic's oral submissions on appeal, demonstrates an irretrievable breakdown of trust and confidence between Mr Tomasevic and the firm. That was apparent to the associate justice and is apparent to me. In these circumstances, it would not serve the interests of justice for the firm to be forced to continue to act for Mr Tomasevic.

[1] Transcript of Proceedings, Tomasevic v State of Victoria (Supreme Court of Victoria, Zammit AsJ, 31 July 2014) 7.

[3] Oswal v Carson [2013] VSC 355.

[4] For example, Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100, [86]-[91], [139]-[142].

[5] Transcript of Proceedings, Tomasevic v State of Victoria (Supreme Court of Victoria, Zammit AsJ, 31 July 2014) 6-7.

[6] [1986] HCA 55; (1986) 60 ALJR 665, 666 (Wilson, Brennan, Deane and Dawson JJ) (emphasis added).