Daming He’s pro se triumph against his lawyers in the Court of Appeal

Update, 16 January 2008: VCAT has taken the shine off the Daming He story on the re-hearing of the matter remitted by the Court of Appeal, no doubt greatly devaluing the film rights. See [2008] VCAT 3. Acting President Bowman, and Members Shattock and Campbell found that Mr He was an unconvincing and not especially frank witness.  They found no loss, and dismissed his case.  It turns out that before Mr He settled his crash and bash litigation, the assessor learnt that part of the damage the cost of repairing which he had estimated was not caused by the accident which the other driver had admitted liability for.  He said he would not be able to give evidence in terms of his estimate.  No wonder the case was settled.  I wonder what the negligent driver’s insurer would think about what I presume was the non-disclosure of this material fact in the negotiations which led to the settlement.  Remember this case about misleading conduct in negotiations?  Now here’s an idea for the prolongation of this saga: the whole case could be reopened on the basis that it was procured by fraud.  Meanwhile, no doubt this matter will find its way back to the Court of Appeal.

Original post: 

He v A & Co Pty Ltd [2006] VSCA 150; [2006] VSCA 235.

Daming He is a success story in the world of litigation pro se (self-representation). Six years ago, he was the innocent victim of a collision in which his car was damaged. He has to date recovered 70% of his modest loss, but has suffered further losses in the twists and turns of litigation, and no doubt thinks little of the justice system. It is quite conceivable that the justice system would have finished its process thinking little of him, but the fact is that the highest court in the State has gone thoroughly through his complaints about his lawyers and found him to have a point, and that is a cause for celebration.

His negligence case against his solicitors was thrown out peremptorily by the Legal Profession Tribunal, a consumer tribunal set up to redress the imbalance between solicitor and client in cases of the client’s dissatisfaction with the service provided by the solicitor. And then the Full Legal Profession Tribunal threw his appeal out, and he appealed to the Court of Appeal. It struck out his notice of appeal as not complying with the relevant rules, but like the character in an Energizer battery add, he lodged another version. Then, in July, he seems to have caught the fancy of the Court of Appeal’s new President. And he got a break.

Maxwell P (former head honcho of Liberty Victoria) and and Eames JA (the fellow who gave Rolah McCabe her break) granted him leave to agitate the issues he wanted to agitate, expressing thinly veiled contempt for both the way he had been treated by the legal system so far and the behaviour of his solicitors. I thought it was all over, that that was the last we would hear of this David and Goliath epic, and I am sure that’s what the Court thought too. The Court told the Legal Services Commissioner to try and settle the thing, but she declined to assist on the basis that she had no jurisdiction to do so [101].

And yet, on 26 October 2006, Mr He won the appeal after a brief hearing, with the result that he is now back where he was in 2003, except that he has to pay costs associated with the striking out of his notice of appeal.

Mr He’s opponents in this saga were his former lawyers. They were represented by a barrister. Mr He thought his lawyers had been dishonest and negligent. He complained about his barrister to the Victorian Bar and was unsuccessful. He complained to the Law Institute about what he said was his solicitors’ dishonest behaviour, and lodged at the same time a pecuniary loss dispute resolution request, that is, a claim for compensation for negligence capable of being heard in the Legal Profession Tribunal. In fact, he combined both things into the one document, as required by the Law Institute. The confusion that this highly inappropriate requirement generated (including apparently in the minds of the Court of Appeal) was by no means unique to this case.

One might think Mr He lucky to have had available to him a government funded complaints mechanism such as the independent Legal Ombudsman, and even the self-regulating Law Institute, at no cost to him, and at no risk to him. Then, in the Tribunal, he was entitled to the assistance of a taxpayer funded barrister, but one prohibited from giving him legal advice, and one whose role was in fact to “assist the Tribunal” by ameliorating the challenges faced by decision makers in dealing with unrepresented people (Counsel Assisting are only briefed when the claimant is not represented). But it was not in these places where he got a fair go, according to the Court of Appeal. A Chinese engineer with what a decision maker in another case described as “impenetrable Sino-English”, Mr He seems to have overcome this hurdle and won over the Court of Appeal. Or perhaps he got enough of the papers associated with his matter before sympathetic Justices of Appeal, who were sufficiently thorough that the truth came out despite the inadequacies of his advocacy and despite the tiny amounts of money at stake. Who knows? Part one of his story — the subject matter of his complaint — is set out in the next post.

The Court of Appeal said:

“This will be an important appeal, in two respects. First it illustrates how a small claim can turn into a large grievance. What begins as a complaint about a lawyer’s handling of the claim turns into a further complaint about the process by which the initial complaint is investigated. ‘All I want,’ [Mr He] says, ‘is a fair hearing’. Secondly, this appeal raises some important issues about the approach to be taken by tribunals dealing with complaints against professional service providers.”


He v A & Co [2004] VLPT 19 (Deputy Registrar Butcher, Legal Profession Tribunal)
He v A & Co [2004] VLPT 20 (Full Legal Profession Tribunal, Judge Lewis Chairman)

He v A & Co [2006] VSCA 150 (application for leave to appeal to Court of Appeal)
He v A & Co [2006] VSCA 235 (appeal)

Elias Michael Bakhaazi’s professional conduct prosecution

Mr He’s unfair dismissal case in the AIRC

Mr He’s appeal against that decision

Mr He’s application for special leave to appeal to the High Court

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