Reber v Hallett West Johnston [2000] VLPT 6 (3 July 2000)

Last Updated: 12 July 2006

Reber v Hallett West Johnston [2000] VLPT 6

Tribunal reference: T0294 of 1999


Name of client: Richard Josef Reber


Name of legal practitioner: Hallett West Johnston


RPA and its reference: Victorian Lawyers’ RPA Ltd
VLR/99/433


CONCERNING A DISPUTE between Richard Josef Reber (the “client”) and Hallett West Johnston (the “legal practitioner”).

REASONS OF LEGAL PROFESSION TRIBUNAL FOR DECISION GIVEN ON 3 JULY 2000
(Section 409 Legal Practice Act)

The purpose of this preliminary hearing is to determine two jurisdictional issues.

The first jurisdictional issue is whether this dispute was referred to the Tribunal by Mr. Reber within the 60 days prescribed by section 128(2) of the Legal Practice Act 1996 (“the Act”). I am satisfied that the sequence of events, so far as is relevant, was as follows:

* On 23 July 1999 Victorian Lawyers RPA Limited wrote to Mr. Reber informing him, in substance, that it was unable to resolve this dispute and that Mr. Reber had 60 days in which to refer the dispute to the Tribunal for determination. The letter was addressed to Mr. Reber at 15 Durham Crescent Hoppers Crossing, in fact the home of Mr. Reber’s parents, but also the address provided by Mr. Reber to Victorian Lawyers RPA Limited as his address for correspondence. The letter clearly was a “written notice” for the purposes of section 128(1) of the Act;

* Mr. Reber had been working in central Australia, and did not return to 15 Durham Crescent Hoppers Crossing until 9 August 1999. Mr. Reber then continued to reside at that address until 20 September 1999;

* The letter of 23 July 1999 was received at 15 Durham Crescent Hoppers Crossing shortly after that date, but came into the hands of Ms Rosemarie Reber, Mr. Reber’s sister. Ms Rosemarie Reber did not hand the letter to Mr. Reber until about 14 September 1999;

* Mr. Reber referred the dispute to the Tribunal on 20 October 1999.

Sections 433 & 434 of the Act provide for the service of notices upon persons such as Mr. Reber. In the absence of any evidence as to the posting of the letter of 23 July 1999, I am prepared to treat the letter as having been served upon Mr. Reber on 25 July 1999, two days after the date it bears and is likely to have been posted: section 434(1)(b). However, the 60 day period referred to in section 128(2) runs from the “receiving” of the notice, not from service of the notice. Receipt and service are different concepts. A person might be served in accordance with the Act but not receive the document served. The distinction between receipt and service has become relevant in this Tribunal mainly where a client was overseas when a notice was served under section 128(1). The Tribunal has adopted the view in previous cases, if the notice was not brought to the attention of the client in the interim, that the client did not “receive” the notice until he or she returned from overseas. Mr. Reber was working in central Australia, not overseas, but because the notice was not brought to his attention in central Australia the principle must remain the same. However, when Mr. Reber returned to his address for correspondence, on 9 August 1999, the limitation period of 60 days commenced to run. He did not refer the dispute to the Tribunal until 20 October 1999, about 10 days after the expiry of the limitation period. Consequently, the referral was out of time and the Tribunal does not have jurisdiction to hear and determine the dispute.

The decision upon the first jurisdictional issue makes it unnecessary for me to address the second jurisdictional issue, but I will do so. Section 123(4) of the Act provides that a dispute cannot be dealt with under the dispute resolution system set out in the Act “if proceedings have been commenced by any person in relation to the subject-matter of the dispute”. In other words, if proceedings have commenced in a court then the dispute resolution system in the Act cannot be utilised by the client. I am satisfied that the sequence of events, so far as is relevant, was as follows:

* Proceedings were commenced in the Magistrates’ Court by Ms Thacker of counsel, seeking payment of her fees (“the first Magistrates’ Court proceeding”). Ms Thacker had been briefed by the legal practitioner on behalf of Mr. Reber. The proceeding was brought against the legal practitioner, but the legal practitioner joined Mr. Reber as a third party to the proceeding. Judgment was entered against Mr. Reber on 8 January 1996. There was reference to the first Magistrates’ Court proceeding in the evidence given by Mr. Reber in the present proceedings, but I am satisfied that the first Magistrates’ Court proceeding did not raise the subject-matter of the dispute referred to this Tribunal;

* Proceedings were commenced in the Magistrates’ Court by the legal practitioner, seeking payment of its costs of acting for Mr. Reber (“the second Magistrates’ Court proceeding”). The costs related to the same matter in which Ms Thacker was briefed, but did not include Ms Thacker’s fees. Judgment by default was entered against Mr. Reber on 18 December 1998;

* Mr. Reber lodged a complaint against the legal practitioner with Victorian Lawyers RPA Limited on 5 March 1999. I have perused the complaint. The “core” of the complaint, as Mr. Reber acknowledged in response to questions asked by me, is an allegation that Mr. Reber entered into an oral arrangement with the legal practitioner that Mr. Reber would not be required to pay any costs to the legal practitioner (other than the fees of Ms Thacker) if the case in which he engaged the legal practitioner (relating to sexual harassment) was not successful, that the case was abandoned by Mr. Reber, that abandonment equates with the case being unsuccessful, and that consequently no costs became payable to the legal practitioner. Other issues are raised in the complaint, but they are peripheral to what I have described as the “core” of the complaint.

Mr. Reber said when he gave evidence, in substance, that he sought advice from a solicitor “in Melbourne” after the order had been made against him in the second Magistrates’ Court proceeding, that he was advised to apply to set aside the order of the Magistrates’ Court, but that he did not make such an application because he could not afford to do so. Instead, Mr. Reber lodged a complaint with Victorian Lawyers RPA Limited.

I am satisfied that the subject matter of the complaint is the same as the subject matter of the second Magistrates’ Court proceeding. Because the second Magistrates’ Court proceeding commenced prior to the lodging of the complaint with Victorian Lawyers RPA Limited, the Tribunal does not have jurisdiction to deal with the complaint: section 123(4) of the Act.

I will add that I would have reached the same conclusion in the absence of section 123(4). The parties to litigation must bring forward all disputes arising out of the same subject matter for determination in the same proceeding: Henderson v Henderson (1843) 3 Hare 100, Port of Melbourne Authority v Anshun Pty Ltd (1980-81) 147 CLR 589 and, in a case which related to this Tribunal’s predecessor, Delahunty v Howell (in his capacity as Registrar of the Solicitors’ Board) and Mann an unreported decision of Mr. Justice Gray made on 12 May 1993 in Supreme Court proceedings numbered 5731 of 1993. The following passage from Henderson’s Case @ 115 is pertinent:

“The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of the litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.” [Emphasis added in italics.]

Put another way, Mr. Reber was obliged, if he wished to pursue his defence and raise any other peripheral issues, to file a defence or counter-claim in the second Magistrates’ Court proceeding because the issues that he wished to raise “properly belonged to the subject of the litigation”. Mr. Reber did not take that course prior to the order being made in default of defence, and he did not seek to have the order of the Magistrates’ Court set aside after it was made, with the result that the law now does not allow him to pursue those issues in any other court or tribunal.

I find that the Legal Profession Tribunal does not have jurisdiction to hear and determine this dispute.

[Signed: Malcolm Howell]

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Registrar and Member of Legal Profession Tribunal

NOTE:

Copies of this document will be provided by the Tribunal to the client, the legal practitioner, the Legal Ombudsman, the recognised professional association that originally handled the dispute, and the conciliator.