Plaintiff v Defendant

3 The respondent sought by summons filed 22 December 2009 that the Notice of Appeal be struck out. That application came before me on 23 February 2010. I struck out the Notice of Appeal filed on 10 December 2009 but gave leave to replead. On 23 February, the respondent had put new arguments in relation to the jurisdiction of VCAT by virtue of which it asserted that the appeal would be futile in any event. I did not determine that submission at that time, because the appellant sought further time to respond to it. I gave the appellant the opportunity to respond to these submissions in writing, and the respondent the opportunity to put submissions in writing in reply. The timetable I set on 23 February 2010 for those matters was to conclude by 30 March 2010. By order four made on 23 February 2010 I ordered that "the respondent's summons and any written application by the appellant to replead are adjourned to a date to be fixed for judgment or further hearing if the Court requires same". I also reserved the costs of the summons and suspended previous timetabling orders that had been made.

4 My intention at that time was to consider the matter in chambers and there conclude it, unless further hearing was required.

5 The appellant appealed my orders by notice of appeal filed 26 February 2010. His notice of appeal came before Justice Robson on 5 March 2010. Justice Robson dismissed the appeal and confirmed my orders.

6 The appellant then sought the leave of the Court of Appeal to appeal the orders of Justice Robson. That leave was refused on 28 May 2010.

7 At that point the matter should have been directed back to me for determination in accordance with the orders of 23 February 2010. Unfortunately, this did not occur. The matter has accordingly languished for some time, due to a combination of Court error and pressure of other work. I extend my apologies on behalf of both myself and the Court administration for the failure to return the matter to me, and the subsequent delay.

8 These reasons now set out my judgment as foreshadowed by my orders of 23 February 2010. The factual background set out below is largely drawn from my reasons of 26 November 2009.

9 The appellant's application to VCAT sought to impugn the validity of a costs agreement entered into between the applicant's brother, Alan Hamilton, and the respondent. At the time the costs agreement was entered into, the appellant and Mr Alan Hamilton were joint administrators of their mother's estate pursuant to order made on 16 October 2006 by VCAT under the Guardianship and Administration Act 1986. The respondent was engaged to carry out legal work on behalf of the mother's estate. Only Mr Alan Hamilton was a party with the respondent to the costs agreement, which is dated 17 October 2006. The appellant's application to VCAT dated 20 June 2008 sought a declaration that the costs agreement was "null and void" because it was not made with both administrators.

10 The costs agreement was the subject of earlier VCAT proceedings, commenced by Mr Alan Hamilton solely against the respondent . These proceedings were heard by Senior Member Howell on 12-14 February 2008. On the application of the appellant in these proceedings, Mr Julian Hamilton, Senior Member Howell added him as the second named applicant on the first day of hearing. Senior Member Howell made orders on 14 February 2008 requiring payment of a reduced amount of legal fees by both applicants to the respondent with interest. Senior Member Howell also made an order that the first named applicant, Mr Alan Hamilton, pay the costs of the respondent from a certain date.

11 In the VCAT proceedings subsequently instituted by the current appellant that came before Senior Member Vassie, the respondent was successful in its application that Mr Hamilton's application be summarily dismissed on the basis of estoppel arising from the earlier proceedings. Senior Member Vassie held that the validity of the costs agreement had been necessarily, although not explicitly, determined by Senior Member Howell in the first VCAT proceedings, and as there was an identity of parties in the two proceedings, there was consequently an issue estoppel on this question. He also held that there was an Anshun[1] estoppel, because the appellant, who was joined as an applicant in the first VCAT proceedings, could have, but did not, raise the validity of the costs agreement in those proceedings, and so was estopped from raising it in the subsequent VCAT proceedings.

12 I granted leave to appeal to the appellant by my orders of 26 November 2009 in relation to both issue estoppel and Anshun estoppel. My conclusion in relation to issue estoppel was expressed in these words:

I conclude that it is at least arguable that there was an error of law in the conclusion of VCAT in the second proceedings that an issue estoppel arose from determination of the validity of the cost agreement in the first proceedings, because the Senior Member conducting the first proceedings specifically indicated he was not dealing with that issue.[2]

13 In relation to Anshun estoppel, I expressed my conclusion as follows:

I consider it is arguable, on the basis of what the transcript reveals, that it was the Tribunal and not the applicant who effectively determined that the validity claim would not be determined in the first proceedings, the arguable consequence being that the second tribunal (which did not have the benefit of the transcript) was in error in concluding that the Anshun principle applied.[3]

14 As stated earlier, I directed that the appellant identify questions of law arising from these conclusions and draw a Notice of Appeal accordingly. On 23 February 2010 I struck out that Notice of Appeal. For the assistance of the appellant, I identified in "Other Matters" in the order of that date some areas of the Reasons that could provide a foundation for questions of law within those Reasons. The appellant filed on 15 March 2010 the Notice of Appeal the subject of the current summons.

15 This notice of appeal contains two questions of law. The first appears intended to relate to issue estoppel, the second to Anshun estoppel. There must be a proper question of law in respect of both for the appeal to have any prospect of success, as either form of estoppel is sufficient to justify the order of Senior Member Vassie.

Did Senior Member Vassie err in law when he concluded at paragraph 17 of his reasons that there was 'an unanswerable defence of issue estoppel to the claim in this proceeding' (that claim going to the validity or efficacy of the costs agreement), given the factual circumstances in the previous proceeding before Senior Member Howell?

17 I do not consider this Question read alone sufficient to identify a proper question of law emerging from my Reasons. It does not identify, within the Question itself, the "factual circumstances in the previous proceeding before Senior Member Howell" that are said to have lead to the error. That description is so general as to be entirely meaningless. Ground 2 appears intended to identify these "factual circumstances". It reads as follows:

Issue estoppel does not arise concerning the claim going to the validity or efficacy of the costs agreement because as found in Her Honour Associate Justice Lansdowne's judgment of 26 November 2009, paragraph 19, 'the transcript makes it quite plan that the validity of the costs agreement was raised in the first proceedings as a possible issue and Senior Member Howell expressly disavowed any intention of considering it'.

18 The respondent takes the point that the paragraph referred to, paragraph 19, was not listed by me in "Other matters" on 23 February 2010. That is so. That list was not intended to be exhaustive. This is apparent because the recited paragraphs only relate to the discussion of Anshun estoppel in the Reasons. The Question referred to at that point of "Other Matters" was Question of Law 2 of the Notice of Appeal filed 10 December 2009 which related to Anshun estoppel, not issue estoppel. There is no list in "Other matters" of 23 February 2010 of the relevant paragraphs in relation to issue estoppel.

19 Taking a broad view, I would allow Question 1 read in conjunction with Ground 2.

20 I accept the submission of the respondent that Ground 3 refers to matters entirely outside my Reasons of 26 November 2009. It appears to be a fresh "factual circumstance" relied upon after the leave hearing. Leave would be required to rely on this Ground. If the matter were to proceed, I would refer the question of this leave to the Court hearing the appeal.

21 Question of Law 2 sets out what are said to be questions of law "concerning the issue of Anshun estoppel" as follows:

(a) Did the first Tribunal comprising Senior Member Howell do enough to respond to the issue of validity of the costs agreement when it was raised before him?

(b) As the then applicant acceded to the evident desire of the Tribunal comprising Senior Member Howell not to proceed with the issue going to validity of the costs agreement, should the Tribunal have given a warning of the consequence of failure to bring an amending application during that first proceeding?

(c) As no such warning as references in b above was give, could the second Tribunal comprised of Senior Member Vassie conclude that Anshun estoppel arose?

(d) Could it be said, and with reference to the transcript, that it was the first Tribunal comprising Senior member Howell, and not the then applicant, who determined not to deal with the issue of validity of the costs agreement in the first proceedings?

(e) Should the first Tribunal comprising Senior Member Howell have warned the unrepresented applicant (through a legal practitioner) that failure to make an amending application during the course of the proceeding may lead to it being subsequently barred by the operation of Anshun estoppel?

(f) Based on what transcript reveals, that it was the first Tribunal and not the then applicant who decided that the validity of the costs agreement would not be determined in the first proceedings, was the second Tribunal which did not have the benefit of the transcript in error to conclude that the Anshun principle applied?

22 The framing of these questions is defective. Paragraph a poses a question at large, without identification of what the Tribunal in the first proceedings should have done, if it is said it did not do enough. Paragraphs a, b, d and e also suffer from the defect that in their terms they refer to the first VCAT proceedings, which are not the subject of the appeal, without explaining the link between the questions there posed and error of law by the Tribunal in the second proceedings, which are the subject of the appeal. A question of law in relation to Anshun estoppel must focus on the reasoning behind the VCAT order that is the subject of the appeal, with necessary reference back to the first proceedings.

23 Paragraphs c and f of Question of Law 2 may, on their face, have been acceptable and drawn the necessary link between the first and the second VCAT proceedings. I have come to the conclusion, however, that they should be read as informed by Grounds c and f, which are objectionable for the reasons set out below. I infer from the use of the same lettering and similar content that each paragraph of the Grounds relating to Anshun estoppel are intended to elaborate the paragraph of the Question of Law with the same letter. For this reason I have considered whether the Grounds cure the defects in the paragraphs of the Question of Law. In my view, they do not do so, and in fact replicate the same defects, and add another, that the Tribunal was mislead, which is fatal to paragraphs c and f.

24 First, Grounds a, b, d and e are objectionable on the same basis as paragraphs a, b, d and e of the Question itself i.e. that they focus on what occurred in the first hearing, without explaining the link to error in the second hearing, the subject of the appeal.

25 Next, Grounds 4a and 4d, and 4b in part, contain the assertion that a separate application was required to contest the validity of the costs agreement. As stated in relation to Ground 3, which also contains this assertion, this is a new issue.

26 Grounds 4c and 4f contain assertions that the Tribunal was mislead (presumably by the respondent). This is yet another new issue. It was not a basis of my grant of leave, and is outside the terms of that grant. The inclusion of this assertion in Grounds 4c and 4f renders defective what might otherwise have drawn together the assertions made in a, b, d and e and explained their relevance to the reasoning process the subject of the appeal. Further, the objectionable character of this portion of paragraphs c and f of the Grounds also renders objectionable the similarly lettered paragraphs of the Question of Law.

27 It follows that I would allow Question 1 (relating to issue estoppel) but strike out Question 2, and Grounds 3 and 4, for the reasons set out above. An appeal on the basis of Question 1 alone, even if successful, could not overturn the decision below, as it was supported by both issue and Anshun estoppel. The question then becomes whether leave should be given to the appellant to re-draw yet a fourth notice of appeal to contain appropriate questions of law in relation to Anshun estoppel.

28 The respondent asserts that no such leave should be given for a number of reasons. First, the respondent asserts that leave should be refused because of the prejudice already created by the multiple attempts by the appellant to draw an appropriate notice and the extensive delay to date, much of which, in fairness, has not been due to actions of the appellant, but due to Court delays.

29 Next, and compellingly in my view, the respondent asserts that leave should be refused because it would be fruitless, as the VCAT lacked jurisdiction in any event to ever entertain the appellant's application. As the order sought to be appealed dismissed the application, nothing could be gained by an appeal from that order.

30 This submission was first put after leave to appeal had been granted by me on 26 November 2009. It appears from the affidavit of Robert Anthony Ewing sworn 22 February 2010 that the respondent first raised this matter with the appellant by letter dated 19 February 2010, just prior to the hearing before me on 23 February 2010. The respondent then put the submission orally to me on 23 February 2010. The appellant contended he had not had sufficient time to consider the submission, and so I did not determine it on 23 February 2010. I allowed the appellant time to respond, in conjunction with the filing of his re-pleaded notice of appeal, now considered above. In between my orders of 23 February 2010 and the filing of the appellant's submissions on the due date of 16 March 2010, the appellant's appeal against my orders of 23 February 2010 was heard, on 5 March 2010. The respondent put the jurisdictional submission to Justice Robson at that time, in written form, but Justice Robson declined to consider it. The respondent has also elaborated the submission in written submissions in reply filed 30 March 2010.

Respondent's submission that VCAT lacked jurisdiction

31 Mr Hamilton's application to VCAT, being JRH-F to his affidavit of 2 March 2009, sought an order that "The professional fees agreement dated 17 October 2006, entered into by Ross Hodgens on behalf of Russell Kennedy, solicitors, with Alan Hamilton, is null and void". The reasons advanced in the application were that the respondent was said to have known that "the estate of represented person Beryl Kathleen Hamilton" was under "Joint Administration" and accordingly the respondent "breached its legal obligations to the represented person, as well as the Joint Administrators, by purporting to contract with Alan Hamilton alone" and, thereafter by failing to ensure that the decisions by the administrators were the decisions of both.

32 The respondent's submission, put simply, is that the only source of jurisdiction by which the Tribunal could have determined the appellant's application filed 20 June 2008 was s. 3.4.32 of the Legal Profession Act 2004. Sub-section (1) of that section provides, and did so both in June 2008 when the application was filed and on 11 December 2008 when it was determined, that "On application by a client, the Tribunal may order that a costs agreement be set aside if satisfied that the agreement is not fair or reasonable" (emphasis added). The respondent contends that the appellant was not a "client" within the meaning of that section.

Appellant's response to submission on jurisdiction

33 The appellant concedes that the "client", in the sense of the person for whom the legal assistance was given, was his mother but relies on the fact that at the time the costs agreement was entered into between his brother Alan Hamilton and the respondent on 17 October 2006, he and his brother were joint administrators of his mother's estate. He further relies on my determination of the submission put by the respondent to me on the leave application that he lacked standing. The discussion of this submission is at paragraphs 12-15 of my Reasons of 26 November 2009. The respondent's submission that leave should not be granted because the applicant lacked standing to make the application before VCAT turned on the same underlying facts as does this submission that VCAT had no jurisdiction to determine the application i.e. that the appellant and his brother Mr Alan Hamilton had ceased to be administrators of their mother's estate by order of VCAT made 27 November 2007, but the appellant did not disclose that fact to VCAT on the hearing of either of the costs proceedings.

34 I determined the standing argument against the respondent on the leave application. My reason was that "the applicant was a joint administrator of his mother's estate at the time the costs agreement was entered into, and, if his argument that it should have been entered into with both administrators is correct, that is the relevant time."[4] The appellant contends that this finding also determines the jurisdiction issue.

35 The appellant also makes a number of further submissions as follows. He contends that it would "run counter to the interests of justice" to allow the respondent to rely on the very fact that the appellant seeks to contend made the agreement void i.e. that he was not a party to it. He further relies on sections 59 and 62 of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act") which respectively set out who are the parties to a proceeding in the Tribunal and who may represent parties. He says that the cases relied upon by the respondent do not lead to the conclusion that VCAT did not have jurisdiction. Finally, he says that he has had at all relevant times a financial interest in the "financial consequences of the matters initially raised by his brother before the Legal Services Commissioner then Senior Member Howell", first as an administrator of his mother's estate, then because he was found personally liable by Senior Member Howell, and then, at the time of the hearing before Senior Member Vassie, as an executor and beneficiary under the will of his mother after her death.

36 The Tribunal is a creature of statute. It does not have jurisdiction unless that jurisdiction is conferred upon it by an "enabling enactment". "Enabling enactment" is defined in s. 3 of the VCAT Act to be "an enactment by or under which jurisdiction is conferred on the Tribunal". An "enactment" is defined to be an Act or a subordinate instrument. Judge Bowman in Wizardry Kennels v Semtech Animal Breeding Services [2006] VCAT 2368, on which the respondent relies, stated the principle thus at [11]:

[T]his Tribunal is a creature of statute and, whilst it has broad powers, its jurisdiction is limited to that conferred by the VCAT Act and by the enabling enactments."

37 It is immaterial that the particular facts or the enabling Act there relied upon were different to those in this case (which the appellant asserts)- the principle that jurisdiction is dependent on conferral by an enactment applies whatever the facts or Act in question.

38 That the jurisdiction of VCAT must be found in the enabling enactment is reinforced by section 43 of the VCAT Act which provides that the original jurisdiction of the Tribunal, within which the jurisdiction to declare a costs agreement void must be found, is invoked:

(a) by a person who is entitled by or under an enabling enactment to do so applying to the Tribunal in accordance with section 67; or

(b) by a matter being referred to the Tribunal under an enabling enactment in accordance with section 69; or

(c) in any other way permitted or provided for by the enabling enactment. (emphasis added)

39 The appellant does not dispute the assertion by the respondent that the only source of jurisdiction to determine his application was s. 3.4.32 of the Legal Profession Act. I note that that section does not, in terms, confer jurisdiction on the Tribunal to declare a costs agreement void. It explicitly confers jurisdiction on the Tribunal to set a costs agreement aside "if satisfied that the agreement is not fair and reasonable". This leads to the question: can an agreement that is void fall within this description? The section sets out various matters to which the Tribunal may have regard in reaching that view, gives jurisdiction if a costs agreement is set aside to make an order for the payment of legal costs the subject of the agreement and, by sub-section (8) confers jurisdiction to "determine whether or not a costs agreement exists". Section 3.4.31, by contrast, provides, and did so in the same terms at the time of the appellant's application, that certain costs agreements are void, being a costs agreement that contravenes or is entered into in contravention of any provision of that Division. That section does not in terms confer jurisdiction on the Tribunal.

40 It may be that to give proper effect to s. 3.4.32 an application based on nullity must be within the section. It may also be that s. 124 of the VCAT Act, which confers power on certain members of the Tribunal to "make a declaration concerning any matter in a proceeding instead of any orders it could make, or in addition to any orders it makes, in the proceeding" would have been sufficient to confer power on the Tribunal in a proceeding properly commenced under s. 3.4.32 to make a declaration that a costs agreement was void by virtue of non compliance with the legislative requirements pursuant to s. 3.4.31 or otherwise.

41 I have not heard argument on the point, and if my reservations have force they go against the appellant. Given these two considerations, for the purposes of the appellant's application to re-plead I will proceed on the basis that the parties have put forward i.e. that the Tribunal had jurisdiction to determine an application to set aside a costs agreement on the basis of nullity, but, in the case of the application here in question, only pursuant to s. 3.4.32.[5]

42 The respondent correctly asserts that s. 3.4.32 required an application by "a client". Sub-section 3.4.32(10) defines a "client" for the purposes of that section as "a person to whom or for whom legal services are or have been provided". The parties agree that the person for whom the services were provided was the appellant's mother. Section 3.4.26(6) extends the definition of "client" in certain circumstances to an "associated third party payer". An "associated third party payer" by virtue of s. 3.4.2A is defined to be a person who was not the client of the law practice but was under a legal obligation owed to the law practice to pay all or any part of the legal costs for legal services provided to the client. Section 3.4.26(6) now provides, and did so at the time of the application to VCAT, as follows:

(6) A reference in section 3.4.32 and in any prescribed provisions of this Part to a client is, in relation to a costs agreement that is entered into between a law practice and an associated third party payer as referred to in subsection (1)(d) and to which a client of the law practice is not a party, a reference to the associated third party payer. (emphasis added)

43 An initial question arises that has not been addressed by the parties in their submissions. This extended definition of "client" to include certain "associated third party payers" was only introduced into the Legal Profession Act in 2007, i.e. after the costs agreement here in question came into being, but before the appellant's application to the Tribunal. In 2006 when the costs agreement was entered into, the Act did not apply to costs agreements between third parties and a law practice. Did the amendment in 2007 retrospectively enlarge the category of persons who could be a "client" for the purposes of making application to the Tribunal to set aside a costs agreement? The respondent has submitted in its oral submissions that the appellant was not an "associated third party payer" but did not address whether or not the creation of this category of client, which only occurred after the costs agreement was entered into, could be relied upon in any event.

44 In my view it is not necessary to hear from the parties on this point. That is because the capacity of an associated third party payer to bring proceedings under s. 3.4.32 depends on the client (presumably in the narrow sense) not being a party to the costs agreement. Here the appellant's mother, being the person for whom the legal services were provided and so the client in the narrow sense, was a party to the agreement by virtue of Alan Hamilton signing it as her administrator.

45 Further, the appellant was not at the time the costs agreement was entered into under a legal obligation to pay any or all of the costs. He did not sign the agreement and no other basis for liability at that time is asserted. He later became under a legal obligation to pay all or part of the legal costs of the respondent, by virtue of the order of Senior Member Howells, and so perhaps (again it is not necessary to determine it) became at that time an "associated third party payer". But for the purposes of the extended definition of "client" for application under s. 3.4.32 the relevant time for this obligation to arise was at the time the agreement was entered into. Accordingly, the appellant was not as an "associated third party payer" able to bring an application as a "client" under s.3.4.32.

46 The person or persons who was or were able to bring an application in relation to the costs agreement, if not the appellant's mother herself, were her legal representatives at the time of the application. The appellant was no longer her administrator at the date of the application. She has subsequently died, but the date of her death, and whether before or after the application, is not in evidence. The appellant contends, without putting the date of her death in evidence or adducing evidence of her will or grant of probate of same, that at the time of the hearing before Senior Member Vassie he together with his brother was an executor and beneficiary under her will. Even if this be so (and there is no evidence) that could only confer the right to bring an application in relation to the costs agreement on behalf of her estate if probate had been granted to him as executor, or he was granted letters of administration. It is also possible that, if probate had been granted to both brothers, any such application would have required the joint application of both executors.

47 The appellant made the assertion of his status as executor and beneficiary in his submissions filed 16 March 2010. He did not file with those submissions any evidence to support them on this point. The respondent with its submissions in reply filed 31 March 2010 has filed an affidavit of Robert Anthony Ewing sworn 30 March 2010 deposing that on search of the Register maintained by the Registrar of Probates no application for probate or grant of letters of administration had been made to that date from 2007 in respect of the late Beryl Kathleen Hamilton. The appellant has not filed any document to dispute this evidence. On the evidence before me, the appellant was not, as at the date of his application to VCAT on 20 June 2008 or the determination of the application on 11 December 2008, the legal personal representative of his late mother.

48 In summary, I find that the appellant was not a "client" within either the narrow or, if applicable, the extended meaning of the term in s. 3.4.32 at the time of his application to VCAT or its determination. As the relevant jurisdiction was conferred on the Tribunal by virtue solely of that section (if at all), the Tribunal had no jurisdiction to hear and determine the application brought by the appellant. Accordingly, affording him further opportunity to put in order his appeal against that determination would be futile. I will refuse that leave and strike out the whole of the Notice of Appeal of 15 March 2010 on the ground of futility.

49 For completeness, I will also express my views in relation to the other submissions put by the appellant in opposition to the respondent's contention that VCAT lacked jurisdiction. The appellant contends that my determination of the standing issue, that the relevant point in time was when the agreement was made, is also dispositive of the jurisdictional argument. I do not agree. The question of standing relates to whether or not a particular person has a sufficient interest to be a party in relation to a matter in respect of which the court or tribunal has jurisdiction. It is not the same as jurisdiction, although similar facts may be relevant to both questions. Here jurisdiction depended on the appellant falling within the statutory definition of "client" at the time of his application. By the time of the application the appellant was no longer an administrator of his mother's estate, nor, if she had already passed away, has he established that he was a legal personal representative of her estate. He was not, at the time of the application, a "client" as required to ground jurisdiction.

50 The appellant is also mistaken in my view in his reliance on ss 59 and 62 of the VCAT Act. Section 59 relates to who is a proper party. Section 59(1)(a) provides that the parties in a proceeding in the original jurisdiction of the Tribunal include "the person who applies to the Tribunal". This does not cure any defect in the jurisdiction of the Tribunal arising from the fact that "the person who applies" does not fall within the required category. Section 62 relates to representation of parties. It could only be relevant in relation to who could represent the "client" who makes the application under s. 3.4.32 of the Legal Profession Act. Where the "client" in the narrow sense is dead or incapable of handling his or her affairs, the person who may make the application so as to ground jurisdiction as "the client" is that client's legal personal representative. Section 62 would then come into play as to who may represent that legal personal representative, if not the legal personal representative him or herself. The section provides for a matter of practice and procedure. It cannot cure a fundamental defect in jurisdiction.

51 The appellant submits that it would run counter to the interests of justice if the Tribunal was unable to hear his argument that the agreement should have been entered into by both him and his brother by reason of the very fact that it was not. Even if this analysis were correct, in my view it is no answer to a lack of jurisdiction for a statutory tribunal. At most, it would be an argument why the legislation should be changed. But I do not consider the analysis to be correct. The Tribunal lacked jurisdiction because the appellant was not a legal personal representative of his mother at the time of his application, even though he was at the time of the agreement. An application by his brother under that section would have suffered from the same defect in relation to the narrow definition of "client". It is perfectly consistent with the interests of justice that any application to be made about a costs agreement can only be made by the client him or herself, or by the client's current legal personal representative at the time of the application.

52 For these reasons, I would strike out Question of Law 2 (relating to Anshun estoppel) and Grounds 3 and 4. The appeal has no utility in relation to Question of Law 1 and Ground 2 (relating to issue estoppel) alone, as the underlying decision was made on the two grounds of issue estoppel and Anshun estoppel. I refuse leave to re-plead because I accept the submission of the respondent that the Tribunal had no jurisdiction, and so any appeal is futile. The appeal seeks to challenge the dismissal of an application which could not have proceeded in any event. Accordingly, I strike out the whole of the notice of appeal filed 15 March 2010.

53 In the ordinary course, I would make the usual costs order that costs, including reserved costs, follow the event i.e. order the appellant to pay the respondent's costs of the appeal. I will, however, give the parties an opportunity to be heard on that question if they wish following publication of these reasons.

[1] Port of Melbourne Authority v Anshun Pty Ltd (1981) CLR 589

[2] Reasons for Judgment 26 November 2009, paragraph24.

[4] Paragraph 15 of my Reasons of 26 November 2009

[5] Part 4 created at the time of the application a regime for determination of complaints about legal practitioners, including complaints about costs. That Part conferred jurisdiction on the Tribunal, but there was a threshold requirement of complaint to the Commissioner. Clearly, that is not the route by which the appellant's application was made to the Tribunal.