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Vaughan v Bell Miller Pty Ltd QCATA 148
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Vaughan v Bell Miller Pty Ltd (t/a Lawler Magill Lawyers  QCATA 148
JASON RONALD VAUGHAN
BELL MILLER PTY LTD
MCDO 1387 OF 2017 Brisbane
18 October 2019
15 and 16 October 2019
Dr J R Forbes, Member
The application for leave to appeal is dismissed.
The application for a non-publication order is refused.
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – EMPLOYMENT OF LAWYER – TRUST MONEYS – where appellant paid moneys into solicitor’s trust account – where moneys withdrawn to credit of solicitor – whether solicitor entitled to moneys by way of professional fees – where client claims no legal services provided – where solicitor maintains conferences held and advice given – where documentation consistent with solicitor’s claim – where primary tribunal rejects client’s case – where no appellable error found – application for leave to appeal dismissed – non-publication application refused
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28, s 32, s 57, s 94, s 95, s 142
Creevy v Salesian Society (Vic) Inc Unrep Vic SC 24 August 1993
Fox v Percy (2003) 214 CLR 118
J v L & A Services Pty Ltd (No 2)  2 Qd R 10
John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344
McLachlan v Australian Stock Exchange (1998) 30 ACSR 139
Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611
Queensland v Nuttall  QSC 79
R v Vaughan  QCA 224
Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47
Rayney v Western Australia (No 8)  WASC 66
Robinson v Corr  QCATA 302
Russell v Russell (1976) 134 CLR 495
Secretary of State for Education and Science v Tameside Metropolitan Borough Council  AC 1014
Snell v Morgan  QCATA 316
Thompson and Anor v Jedanhay Pty Ltd [2012[ QCATA 246
W (an infant, In Re  AC 682
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
- The intending appellant Jason Ronald Vaughan (`Vaughan’) sues Bell Miller Pty Ltd (trading as Lawler Magill Lawyers) (`Bell’) for $800 as moneys had and received to the use of the applicant.
- On 24 October 2011 Bell transferred that amount from its trust account to general account, purportedly as fees (including GST) for `professional fees for conferences and legal advice’.
Evidence rules relaxed
- The evidence of Lawler (for Bell), at least in part, was hearsay. This fact inspired Vaughan to deliver several disquisitions to the Tribunal on the on the hearsay rule. Inaccuracies aside, Vaughan’s submissions on that topic took no account of section 28 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (`QCAT Act’) which materially provides:
In conducting a proceeding the tribunal ... is not bound by the rules of evidence, or any practices or procedures applying to courts of record ... and may inform itself in any way it considers appropriate ...
- By the same token, the Tribunal is not bound to receive information on oath. Indeed, if the rules of evidence were strictly applied, Vaughan would not have been permitted to combine submissions of law with evidence of fact, or to give evidence in chief that went only to the credit of Milford.
The Conflicting Versions
- According to Bell, the relevant services concerned current criminal appeals upon which Vaughan subsequently appeared in person. Vaughan delivered a transcript of the trial and a notice of appeal for Bell’s consideration. Bell assigned the case to a solicitor named Magill. By the time of the primary hearing Magill was no longer with Bell, and Bell’s case was put to the Tribunal by Magill’s former colleague, Neil Lawler.
[O]ur firm – my firm – I’m the managing partner – would never ever take money in trust for a future event that might not occur. We would never do that because the money sits there for years and we’ve got to account for it every year. So that’s not something we would do.
- That is direct evidence that Lawler was entirely competent to give, even if the rules of evidence applied.
- The `current criminal appeals’ referred to above are on the public record as R v Vaughan. In those proceedings Vaughan challenged, unsuccessfully, convictions on several charges of `using a carriage service to have communications with three female complainants in a way that reasonable persons would regard as being menacing, harassing or offensive’. Presently relevant are the date of hearing of the appeal, and the date when the court’s reserved judgments were delivered. The hearing took place on 26 August 2011, and the decision was given on 9 September 2011. The notices of appeal would have been filed some months before the hearing.
- These dates are consistent with Bell’s records of receiving the money in question in May 2011, and drawing it down in the following October in payment for `conferences and legal advice’.
- However, Vaughan insists:
I ... vehemently reject the respondent’s submission that they ever provided me with legal advice. They never provided me with any legal advice. There’s no evidence that they provided me with legal advice.
Court of Appeal record - Resolution
- But there is impressive evidence to the contrary in Vaughan’s own evidence to the Supreme Court. In dismissing his appeals Muir JA observed:
The appellant [Vaughan] swore that he was advised by his solicitor that he could appeal against the refusal to order separate trials only after `finalisation of the matter through sentencing ... despite communicating [his] strenuous desire to file an [immediate] appeal ... 
- In the event the primary Tribunal, as the judges of credit and fact, simply preferred the evidence of Bell to that of Vaughan, which it expressly rejected:
[T]he applicant has failed to convince us to any relevant fact, including the balance of probabilities, that this 800 payment was given to and accepted by Mr Magill to be applied only if there was a recharging of the applicant on those three specific offences.
Questions of Credit
- For some reason best known to him, Vaughan put in evidence a record of convictions, which need not be detailed here. As the Court of Appeal observed, Vaughan `has little, if any, ability to identify those arguments and considerations which might assist his cause.’ Suffice it to say that this material was far more damaging to credit than the unsupported aspersions that Vaughan cast upon solicitor Milford.
The Nature and Limitations of an Application for Leave
- The primary Tribunal is the judge of credit and fact. That is its task. An application for leave to appeal is not an opportunity to re-run the trial, or to `second-guess’ the primary fact-finding process. It is not an occasion to repeat or reargue evidence that was reasonably rejected by the first decision-maker, or to present material that could have been put before him, but was not. Certainly it is not nearly enough for an applicant to express disappointment, or to entertain a subjective feeling that justice has not been done.
- Finality in litigation is highly desirable because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties. The legislative purpose of the QCAT Act’s leave-to-appeal provision is to ensure that the primary decision will normally be final. Before an appeal will be entertained, the appellant must demonstrate an arguable case of error. “Error” means an error of law, or a finding of fact that is not merely debatable, but rationally indefensible (which is itself an error of law). No such error is shown here. The justices were entitled to find that Vaughan’s claim was improbable.
- It is not an appellable error to prefer one version of the facts to another, or to give less weight to one party’s case than he thinks it deserves. Findings of fact will not be disturbed if they have rational support in the evidence, even if another reasonable view is available. Where reasonable minds may differ, a decision is not erroneous simply because one conclusion has been preferred to another possible view. Those are the principles that apply here.
- Here there is no point of appellable error with any reasonable prospects of success. The application for leave must be dismissed.
- By application filed on 18 June 2019 the appellant seeks a non-publication order suppressing the decision of the appeal Tribunal, all submissions of the parties, and all exhibits tendered by the applicant. No material is offered in support of this wide-ranging, not to say swingeing request. It is far from obvious that all submissions, and such exhibits as receipts and unspecified `information’ need to be, or should be suppressed.
- Other material of an historical nature was freely produced by the appellant Vaughan, and is extracted from public records. It was not really required to advance the appellant’s case – rather the reverse in fact. Transparent justice is a vital principle of our legal system, and suppression orders are not lightly made. An unsuccessful application was made in the “child abuse” case of Creevy v Salesian Society (Vic) Inc. Open justice cannot be abandoned because a litigant fears embarrassment, ridicule or lack of privacy. Any embarrassment in this instance is self-inflicted. In McLachlan v Australian Stock Exchange an order was refused although the application was unopposed. In J v L & A Services Pty Ltd (No 2) the Queensland Court of Appeal allowed publication of the names of plaintiffs suing medical practitioners who allegedly infected them with AIDS.
- I see nothing in this instance to warrant a departure from the value of open justice. The application will be refused.
- The application for leave to appeal is refused.
- The application for a non-publication order is refused.
 Leave is a prerequisite in cases of the present kind: QCAT Act s 142(3)(a)(i).
 Bell Miller trust account receipt No 1509 12 May 2011.
 Vaughan, application for leave to appeal filed 3 December 2018, paragraph 2.
 Bell Miller remittance advice 24 October 2011.
 QCAT Act s 57 (note the permissive `may’), s 95(4)(b) (`if the tribunal requires’), s 95(5) (`may’), s
 8 November 2018.
 Liability aside, quantum is not an issue.
 Transcript of hearing 8 November 2018 (`T’) page 5 line 12 (for `a future theoretical event’) (Vaughan).
 T page 9 lines 25-28 (Lawler).
  QCA 224.
 T page 7 lines 16-18.
 R v Vaughan  QCA 224 at  (emphasis added).
 T page 17 lines 44-47. The offences referred to were, according to Vaughan himself at T page 5 line 14
` supply of dangerous drugs ... stalking and ... carnal knowledge’
 R v Vaughan  QCA 224 at  per Muir JA, with whom Margaret Wilson AJA and Phillipides J
Snell v Morgan  QCATA 316 at ; Thompson and Anor v Jedanhay Pty Ltd [2012[ QCATA 246 at .
 Robinson v Corr  QCATA 302 at .
 Fox v Percy (2003) 214 CLR 118 at 128.
 Fox v Percy (2003) 214 CLR 118 at 125-126.
 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at
; In Re W (an infant)  AC 682 at 700; Secretary of State for Education and Science v Tameside Metropolitan Borough Council  AC 1014 at 1025.
Russell v Russell (1976) 134 CLR 495 at 520; Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47;
John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344; Fraser-Kirk v David Jones Ltd (2010)190 FCR 325.
 Unreported, Vic SC 24 August 1993; see also Queensland v Nuttall  QSC 79.
 Rayney v Western Australia [No 8]  WASC 66.
 (1998) 30 ACSR 139.
  2 Qd R 10.
- Published Case Name:
Vaughan v Bell Miller Pty Ltd (t/a Lawler Magill Lawyers)
- Shortened Case Name:
Vaughan v Bell Miller Pty Ltd
 QCATA 148
18 Oct 2019