Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Douglas v Taylor & Whitty Pty Ltd [2018] NSWCATAP 39 Hearing dates: 16 January 2018 Date of orders: 07 February 2018 Decision date: 07 February 2018 Jurisdiction: Appeal Panel Before: R Titterton, Principal Member R Perrignon, Senior Member Decision: 1. The appeal is dismissed. 2. Leave to appeal is refused. 3. Vary Order 1 of the Tribunal's orders of 5 September 2017 so as to read: The application is dismissed on the bases that the Tribunal lacks jurisdiction to hear a consumer claim of this kind, and that the application is misconceived and lacking in substance having regard to the mutual releases contained in the Settlement Agreement. Catchwords: APPEALS – appeal against order dismissing application – where claim misconceived and lacking in substance, justifying dismissal pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Fair Trading Act 1978 (NSW) Legal Profession Act 2004 (NSW) Legal Profession Uniform Law (NSW) Legal Profession Uniform Law (VIC) Legal Profession Uniform Law Application Act 2014 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Pholi v Wearne [2014] NSWCATAP 78 Texts Cited: Cairns, Australian Civil Procedure, 11th Edition. Category: Principal judgment Parties: Douglas Willshire (Appellant) Taylor and Whitty Pty Ltd (Respondent) Representation: Appellant: Self Represented Respondent: Mr Taylor represented Taylor and Whitty Pty Ltd File Number(s): AP 17/42036 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 5 September 2017 Before: D Barnetson, General Member File Number(s): GEN 17/32861 REASONS FOR DECISION 1. This is an appeal from a decision of the Consumer and Commercial Division of the Tribunal (the Tribunal) made on 5 September 2017 (the Decision). On that occasion, the Tribunal dismissed the appellant's application for a refund of fees paid to his former solicitors (the respondent firm), by making orders which included the following: The application is dismissed because the Tribunal has no jurisdiction to determine the application. The parties had previously reached a final and binding agreement to settle the matters through the Victorian Legal Services Commission. 1. The appellant, Mr Willshire, seeks that the order for dismissal be set aside, essentially because he says the settlement agreement was rescinded when the respondent firm failed to pay moneys due in accordance with its terms. 2. The respondent submits that no error of law is demonstrated, and no grounds have been made out justifying the grant of leave to appeal on the basis of any error of fact. 3. The essential background is not in dispute. Mr Willshire owned a property at Mildura, Victoria, which he leased to a tenant. In about April 2016, the tenant sued him in the Magistrates Court at Mildura. He retained a number of solicitors firms to advise and represent him in respect of those proceedings. One of those firms was the respondent, which has offices both in NSW (Finley, Jerilderie and Tocumwal) and in Victoria (Cobram, Numurkah and Yarrawonga). 4. At all material times the appellant dealt with the respondent's office in Finley. Over time, he paid it legal fees in the total sum of $4,169.00. 5. On a date prior to 2 November 2016, Mr Willshire complained about the respondent's services to the Victorian Legal Services Commission (the Commission). On 2 November 2016, the Commission brokered a settlement agreement between the appellant and respondent, in the following terms: The parties to this consumer matter reach agreement with respect to the subject matter of the complaint as follows: 1. The complainant is: • to accept $528.00 in full and final settlement of the costs dispute; • not to further pursue the costs dispute with the law practice. 2. The law practice is: • not to seek payment at any future time for the work to which the account relates; • to pay $528.00 to the complainant within seven days of receiving the certified agreement document. 3. The parties mutually release each other from any further or future claims or actions in relation to the subject matter of the dispute. 4. This agreement is confidential and its terms may not be disclosed unless in accordance with law. 1. The Settlement Agreement was signed by Mr Willshire on 7 November 2016 and on behalf of the respondent on 21 February 2017. On that day, the respondent provided a cheque to the Commission in fulfilment of its payment obligation under cl 2 of the Settlement Agreement. As will be discussed further below, that cheque initially did not reach the appellant, and was subsequently cancelled by the respondent firm. The cancelled cheque was later sent by the Commission to the appellant, but was dishonoured on presentation. A replacement cheque was later proffered, but this was rejected by the appellant. 2. On 1 March 2017, the Commission forwarded a signed copy of the Settlement Agreement to both parties, under cover of a letter which read as follows: Enclosed is a copy of the agreement you have reached signed by both parties and certified by the Victorian Legal Services Commissioner. Any party, after giving written notice to the other party, may enforce the agreement by filing a copy of the certified agreement in court. On filing, the record is taken to be an order of the court in accordance with its terms, and may be enforced accordingly. 1. On 14 July 2017, the appellant commenced these proceedings in the Tribunal, claiming an order that he be paid $4,644.00. The proceedings were heard on 5 September 2017. The Tribunal made the findings set forth above. 2. For the reasons that follow, the appeal should be dismissed. We decline to grant leave to the appellant to pursue the appeal on any other ground. Notice of Appeal 1. The appellant filed his Notice of Appeal on 3 October 2017. As he received notice of the Decision on 5 September 2017, the Notice of Appeal has been filed within the time allowed in the Civil and Administrative Tribunal Rules 2014. 2. The appellant states his grounds of appeal as follows: 1. As per my letter to Pieter Kruger (solicitor) dated 5 September 2017 setting out my grounds for an appeal & requesting his advice. 2. As per my letter to K Cavanagh – Senior Registry Officer at NCAT dated 22 August 2017. 3. A cheque for $528 was sent to Vic Legal Services Commission (VLSC) on 13 July 2017 & was subsequently forwarded to me & received via mail redirection on 8 September 2017. 4. The cheque was not accepted & was returned to Vic Legal Services Commission on 8 September 2017 together with my email dated 8 September 2017. 1. The letter to Mr Kruger is attached to the Notice of Appeal. It is dated the day the appellant's claim was dismissed by the Tribunal. The appellant seeks legal advice from Mr Kruger after his claim. He notes that he told the Tribunal that he wished to "withdraw" the Settlement Agreement "due to John Taylor's delay [and] handling of the matter", which application was refused. He says that the Member told him that she had no jurisdiction to do so, that he was bound by the Settlement Agreement and that it was his responsibility to apply to the Magistrates' Court to enforce it. 2. The appellant states that his application was dismissed because Mr John Taylor of the respondent firm "rightly claimed" that the respondent had signed the Settlement Agreement. The appellant appears to suggest that the following matters warrant the Agreement being rescinded: 1. The Agreement was signed before the Magistrates Court hearing on 20 January 2017, at which the appellant claims he was informed by the Magistrate that the advice given to him by Mr Taylor was incorrect; 2. He signed the Settlement Agreement on the advice of the Commission on 7 November 20126, the respondent signed the Settlement Agreement on 21 February 2017 and sent a cheque for $528 to the Commission on that date, but the Commission sent the cheque to his old address; 3. The cheque was later sent to him by the Commission on or about 17 May 2017; he banked it the following day but it was dishonoured; 4. After receiving the NCAT application, Mr Taylor issued another cheque on 17 August and sent it to the Commission, but at the time of writing the letter he had not received the cheque. 1. In summary, the appellant asks the Tribunal to set aside the Decision of the Tribunal, and to hear his case for a claim under the Australian Consumer Law including rescission of the Settlement Agreement due to the failure of the respondent firm to abide by the Agreement. 2. Pages 4 and following of the Notice of Appeal deal with applications for leave to appeal from a decision of the Consumer and Commercial Division of the Consumer. While appeals on a question of law may be brought as of right - that is, without the leave of the Appeal Panel, appeals on any other ground may be brought only by a grant of leave: s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). While the appellant states that he is not asking for leave, if he wishes to argue that the Decision was not fair and equitable, or against the weight of the evidence, as he appears to, then he requires the leave of the Appeal Panel. 3. We note that, in this respect, at the directions hearing on 31 October 2017, Principal Member Harrowell directed that this issue (that is, whether leave should be granted) would be determined at the hearing. Reply to Appeal 1. The respondent filed a Reply to Appeal on 27 October 2017. The respondent states, correctly, that the issue of jurisdiction is a question of law, and otherwise says that he is concerned that the substance of the appellant's materials address merits issues which require the leave of the Appeal Panel to pursue. Appeal on a question of law 1. The first matter to consider is the claim that the Tribunal erred in finding that it had no jurisdiction to hear his claim. As noted, the Tribunal's order states: The application is dismissed because the Tribunal has no jurisdiction to determine the application. The parties had previously reached a final and binding agreement to settle the matters through the Victorian Legal Services Commission. 1. The signed Agreement is set forth above. It contained mutual releases, which took effect on signing. As is noted in Cairns, Australian Civil Procedure, 11th Edition: When parties settle litigation they may either enter into a contractually binding arrangement, or ask the court to give a consent judgment. Either way the settlement disposes of the dispute. It may not be raised again in a separate proceeding: Holsworthy Urban District Council v Holsworthy Rural Council [1907] 2 Ch 62. 1. Having reached that agreement, the appropriate remedy is an action for specific performance of any part of the agreement which has not been performed – in this case, the payment obligation under cl 2. 2. In his written submissions (at par [14]), the appellant admits that had the option of issuing a Notice of Enforcement in the Victorian Courts in respect of the Agreement, but he declined to do so on legal advice. This is also stated at foot of the Agreement itself: Any party, after giving written notice to the other party, may enforce the agreement by filing a copy of the certified agreement free of charge in the Magistrates' Court. (s 289(2)) On filing, the record must be taken to be an order of the Magistrates' Court in accordance with its terms, and may be enforced accordingly. (s 289(3)) A record may be filed only once under sub-section (2). (s 289(4)). 1. The reference to s 289 is a reference to the Legal Profession Uniform Law (VIC). One issue raised by the appellant in his submissions was that the Agreement was void as the settlement monies were not paid. However, there is no provision in the Agreement to that effect. Mutual consideration was provided by the mutual releases contained in cl 3 of the Agreement, so that the Agreement had immediate effect. If the payment obligation was not honoured, the remedy is specific performance of that obligation. Failure to comply does not result in rescission of the Agreement. 2. In any event, the statement that the settlement monies were not paid (as claimed by the appellant) is not wholly accurate. What the respondent firm claims occurred is set out in the letter of the respondent firm to the Victorian Legal Services Board of 17 August 2017. That letter relevantly stated: We note that on 21 February 2017 we sent to you the signed agreement and a cheque payable to Douglas Willshire in the sum of $528.00. On 14 March 2017 you rang to say that the cheque had been sent to the old address of Mr Willshire. I indicated that I would cancel that cheque and send a new one. One of my staff cancelled the first cheque on 21 March 2017 and inadvertently the sending of the second cheque was missed at the time. It appears the first cheque was returned to you on 29 March 2017 and you inadvertently forwarded to Mr Willshire that cheque in May 2017 We only beware aware that the first cheque had been forwarded to Mr Willshire when we spoke to you in the last few days. Accordingly we enclose a new cheque payable to Douglas Willshire in the sum of $528.00 for you .to forward to him. As advised in our telephone conversation Mr Willshire has brought a further complaint in the NSW Civil and Administrative Tribunal. 1. This account was not actively disputed by the appellant. Indeed, he acknowledges in the Notice of Appeal that the respondent firm sent the cheque to the Victorian Legal Services Commission on 24 August 2017 (which was incorrect, the date being 17 August) and subsequently forwarded to him. However, "the cheque was not accepted" (by the appellant) and was returned to the Commission on 8 September. At the appeal hearing, the appellant confirmed that he had in fact returned the cheque to the Commission. 2. Another issue raised by the appellant was that this dispute was not about the cost of legal services, rather it concerned the poor quality of the legal advice and the legal services which the respondent provided, such as the drafting of his defence in the proceedings brought by his tenant against him in the Victorian Magistrates' Court. We disagree. The respondent firm provided the appellant with legal services; it charged the appellant $4,169.00 for those services, which he paid; in his application to the Tribunal the appellant sought to be reimbursed the fees paid. We consider, as submitted by the respondent firm, that the claim is in fact a claim in respect of the cost of legal services. 3. In our view, the Tribunal was correct to dismiss the proceedings, because the mutual releases contained in the Agreement were effective, and bound the parties. It followed that the claim was misconceived and lacking in substance, justifying dismissal pursuant to s 55(1)(b) of the NCAT Act. 4. The member dismissed the proceedings for want of jurisdiction. We consider that the correct order was to dismiss the proceedings under s 55(1)(b) as being misconceived and lacking in substance having regard to the mutual releases contained in the Settlement Agreement, but this makes no difference to the outcome of the appellant's claim. Fair Trading Act 1. There is a further matter relating to jurisdiction which we raised with the parties, namely the operation of s 78M of the Fair Trading Act 1978 (the FT Act). 2. A consumer claim is a claim by a consumer, for one or more of the following remedies, that arises from a supply of goods or services by a supplier to the consumer (whether or not under a contract) or that arises under a contract that is collateral to a contract for the supply of goods or services: 1. The payment of a specified sum of money, 2. The supply of specified services, 3. Relief from payment of a specified sum of money, 4. The delivery, return or replacement of specified goods or goods of a specified description, see s 79E of the Fair Trading Act. 1. The jurisdiction of the Tribunal in relation to consumer claims is set out in s 79J of the Fair Trading Act 1978 which provides: (1) The Tribunal has jurisdiction to hear and determine a consumer claim only if: (a) the goods or services to which the claim relates were supplied in New South Wales, or (b) a contract or other agreement to which the claim relates contemplated that the goods or services would be supplied in New South Wales (whether or not they were so supplied), or (c) a contract or other agreement to which the claim relates was made in New South Wales (whether or not the goods or services were supplied in New South Wales). (2) The Tribunal has such jurisdiction whether or not: (a) a contract or other agreement to which the claim relates confers jurisdiction on any other court or tribunal (whether in New South Wales or elsewhere), or (b) the rules of private international law require a law other than the law of New South Wales to be applied to the hearing or determination of the claim. 1. It was common ground that at all material times the appellant dealt with and supplied with services from the respondent firm's legal offices in Finley NSW. Accordingly, subject to any exceptions in the Fair Trading Act, as the contract or other agreement to which the claim relates was made in New South Wales, the Tribunal would have jurisdiction to hear a consumer claim. 2. We have already explained that we consider that the appellant's dispute can be characterised as being concerned with the costs of the services provided by the respondent firm. However, s 78M of the Fair Trading Act provides that a matter arising in relation to the fairness or reasonableness of the costs charged by a barrister or solicitor for an item of business transacted by the barrister or solicitor is not within the jurisdiction of the Tribunal if the costs can be the subject of a costs assessment under Part 3.2 of the Legal Profession Act 2004. 3. The Legal Profession Act 2004 was repealed by the Legal Profession Uniform Law Application Act 2014 with effect from 1 July 2015. That Act in turn provides (Sch 9, Pt 2, cl 4) that: A reference to the repealed Act in any Act (other than this Act or the Legal Profession Uniform Law (NSW)) or in any subordinate instrument, agreement, deed or other document, so far as the reference relates to any period on or after the date of the repeal and if not inconsistent with the subject-matter, is to be construed as: (a) a reference to the Legal Profession Uniform Law (NSW), if the reference relates to a matter that is dealt with by that Law, or (b) a reference to this Act, if the reference relates to a matter that is dealt with by this Act but not by the Legal Profession Uniform Law (NSW). 1. The effect of the Legal Profession Uniform Law Application Act 2014 is that s 78M of the Fair Trading Act now relevantly provides, in effect, that a matter arising in relation to the fairness or reasonableness of the costs charged by a solicitor is not within the jurisdiction of the Tribunal if the costs can be the subject of a costs assessment under Part 3.2 of the Legal Profession Uniform Law (NSW). 2. The Legal Profession Uniform Law (NSW) provides for the assessments of legal costs to be conducted by costs assessors, which assessments are to be conducted in accordance with the Uniform Act, the Uniform Rules and any applicable jurisdictional legislation: s 199. On a costs assessment, the costs assessor must (a) determine whether or not a valid costs agreement exists; and (b) determine whether legal costs are fair and reasonable and, to the extent they are not fair and reasonable, determine the amount of legal costs (if any) that are to be payable. 3. As the legal services were provided in NSW, we see no reason why the costs could not have been assessed by a costs assessor in NSW. Accordingly, if it had otherwise been open to the appellant to bring a claim in respect of the Australian Consumer Law in respect of the cost of the legal services provided to him by the respondent firm, the effect of s 78M would be that the Tribunal would lack jurisdiction. Conclusion 1. The challenge to the appellant is to establish that the Tribunal erred in reaching the conclusion that it had no jurisdiction. We consider that the Tribunal's decision that it did not have jurisdiction was correct. 2. This ground of appeal should be dismissed. Appeal on other grounds 1. Schedule 4, cl 12 of the NCAT Act says that an Appeal Panel may grant leave only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: 1. The decision of the Tribunal under appeal was not fair and equitable (cl 12(1)(a)); or 2. The decision of the Tribunal under appeal was against the weight of evidence (cl 12(1)(b)); or 3. Significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with) (cl 12(1)(c)); 1. In relation to the decision not being fair and equitable, the appellant submits: The respondent took no steps to settle the claim despite Agreements signed previously & belatedly tried to pay the lesser amount than what has now been claimed in an Application under Consumer Law. 1. As can be seen above, it is not correct to state that the respondent firm took no steps to settle the claim (that is, pay the $528.00). The respondent firm did send a cheque in that amount to the appellant, via the office of the Commission twice. On the first occasion, the cheque did not reach the appellant. On the second occasion, the appellant returned the cheque. In between those events, the Commission forwarded to the appellant the first cheque which had now been cancelled, and was consequently dishonoured on presentation. 2. In relation to the decision being against the weight of the evidence, the appellant says that details of his claim were not heard by the Member, and that the respondent had not complied with the requirements of the Settlement Agreement or made any attempt to replace the dishonoured cheque. Although it may be correct the Member did not hear the appellant's claim under the Australian Consumer Law (an understandable conclusion, as the Member considered that she did not have jurisdiction to hear the claim), it is not correct, for the reasons set out above, to say that the respondent had not complied with the requirements of the Settlement Agreement or made any attempt to replace the dishonoured cheque. 3. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel conducted a review of the relevant cases and stated at [84] that: The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. 1. However, even if an appellant establishes that they may have suffered a substantial miscarriage of justice, the Appeal Panel then retains the discretion whether to grant leave under s 80(2) of the NCAT Act: Pholi v Wearne [2014] NSWCATAP 78 at [32]. 2. It is not appropriate to grant the appellant leave to pursue the appeal on any ground other than the question of law. In our view the Tribunal lacked jurisdiction to hear the appellant's claim. It follows that there is no utility in granting leave, as neither the Tribunal on remitter (or the Appeal Panel exercising the Tribunal's powers pursuant to s 81(2) of the NCAT Act) would have the jurisdiction to do so. 3. It follows that leave should be refused. Order 1. For the above reasons, the Appeal Panel orders that: 1. The appeal is dismissed. 2. Leave to appeal is refused. 3. Vary Order 1 of the Tribunal's orders of 5 September 2017 so as to read: The application is dismissed on the bases that the Tribunal lacks jurisdiction to hear a consumer claim of this kind, and that the application is misconceived and lacking in substance having regard to the mutual releases contained in the Settlement Agreement. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 February 2018