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Barry Lane
8 November, 2006  
Another legendary litigator

It’s looks as though we might have a 2006 winner for the Joe Guss Legendary Litigators Award. Barry Lane is nominating one half of the brilliant Katzenjammer Kids

imageWhen Gabriel Kuek left Victoria Legal Aid in June 1988 after four years service, I wonder whether the organisation realised that he would engulf them in a tsunami of litigation in the years that followed.

Gabe set-up his own law shop in July 1989 and shortly after was included on VLA’s panel of solicitors to whom work was referred.

Gabe has frequently briefed David Anthony Perkins, a former member of the Victorian Bar. Perky had a colourful practice as a barrister and has been mentioned in dispatches for things like offensive behaviour (dismissed on appeal) and contempt of court.

In relation to the contempt matter, Perky said to a VCAT member during a hearing …

“in that case [an earlier matter] you behaved towards me personally in a dishonest … cowardly and craven way… You behaved, in my respectful submission, in a way which was utterly disgraceful… You are utterly incapable of bringing anything other than your bigotry to a case in which I am involved… You are utterly incapable of redeeming the bigotry, unprofessionalism and cowardice that you have personally shown to me and it would be impossible to do my job independently and tell my client that anything I say has the slightest prospect of acceptance by you.”

It fell to a vice prez of VCAT, HH Judge Davey, to deal with Perky for what Justice Frank Vincent of the Court of Appeal described as: “highly intemperate and vituperative language.”

After an apology was proffered, Perky was fined $2,500, see Perkins v VCAT [2000] VCAT 57.

The contumelious barrister sought leave to appeal from Judge Davey’s decision but the application was refused by the Court of Appeal (Phillips CJ, Chernov and Vincent) see R v Perkins [2002] VSCA 132.

In a consequential disciplinary proceeding, the Bureau de Spank suspended Perky from practice from December 25, 2004 until March 24, 2005 and ordered him to pay $30,000 costs, see The Victorian Bar Inc v Perkins [2004] VLPT 6.

imageIf Perky (snap) thought that his problems with the bureau were over in 2004 he was mistaken. He was up for another caning after directly accepting $50,000 on account of costs from a client without being authorised to do so, see The Victorian Bar v Perkins No 6 (Legal Practice) [2006] VCAT 2006.

As of July 3, 2006, the bureau found a charge of misconduct proved and is awaiting submissions on penalty.

Many of the double acts performed by Gabe and Perky have been in relation to clients who have obtained grants of assistance from VLA.

And it’s as a double act they remind me somehow of a combination of Abbott and Costello on the one hand, and the Katzenjammer Kids on the other. A combination of forensic high jinks mixed with a dash of rebellion, which usually ends in tears.

My colleague, William Collins, wrote of some of their escapades on March 24, 2005.

Justice of Appeal Bob Brooking was prophetic when he said in DPP v Sarosi [2001] VSCA 216:

“1. As long ago as August 1996 George Sarosi was charged with hindering a member of the Police Force and with assaulting him in the course of the same incident in a hotel carpark. During the hearing in February, March and April 1999 he was represented by Mr Perkins of counsel, instructed by Mr Gabriel Kuek, who then practised under the name Kuek & Associates and now practises under the name Access Law.

2. The case was supposed to last one day. But all day long the noise of battle rolled for 28 sitting days or thereabouts, until the prosecution case had been closed, the magistrate dismissed both charges.

3. It is scandalous that a case of this kind should be so conducted by the defendant’s lawyers that after five or six weeks the prosecution case is still in progress – if the word ‘progress’ can be used in these circumstances.

4. Having referred to the morass which the hearing in the Magistrates’ Court had become, the judge [Justice David Harper, who first heard an appeal brought by the DPP] continued, still dealing with the way the defence had been conducted below:

‘The litany of the improprieties which attended the proceedings in the Magistrates’ Court does not end there [for a more extensive exposition of the “improprieties” identified by Harper check out paragraph 61 of the judgment of Justice Geoffrey Nettle in Kuek v Victoria Legal Aid [2002] VSC 308]. Issues of credit were raised at every juncture, and pursued without any regard for the proper limits upon such investigation. The use of notes to refresh the memory of a witness was the basis for attacks, which generated much heat and little light. Points of law were taken where none existed. Substantive hearing turned into voir dire and back again. All over an incident in a hotel car park which began and ended within a matter of minutes. Such was the constant barrage of vacuous, rambling and almost unintelligible submissions that, not surprisingly, the prosecutor and the magistrate lost all sense of direction…’.”

Harper allowed the appeal on March 10, 2000 and the case was sent back for rehearing by a different magistrate. Bob Brooking ploughed on:

“6. Mr Kuek had, in the meantime, claimed that the huge sum of $81,000 should be paid by the informant for the costs of the hearing in the Magistrates’ Court…

12. I hope that we shall not see another case like this, but I am not at all sure that we shall not.” (It’s me with the italics.)

Nettle’s decision concerned an appeal by Gabe from a determination of an Independent Reviewer (Martin Ravech QC, a former County Court judge) who ruled in favour of a decision by VLA to remove Gabe from its panel after the Meng Kok Te trial went off the rails.

In that trial the Katzenjammer Kids were roundly criticised by HH Judge Kellam (as he was then) for their procedural antics.

An appeal from Nettle’s decision was dismissed by the Court of Appeal, (Ormiston, Buchanan and “Silver Tray” Gillard), see Kuek v Victoria Legal Aid [2005] VSCA 45.

Those decisions collectively resulted in Gabe being kicked off the VLA panel from October 5, 2001 until March 1, 2005.

He’s also had a number of tilts at VLA over fees, one of which concerned two chaps by the names of Nguyen and Rodriguez. In those cases, after accepting referrals from VLA, Gabe tried to rewrite the terms.

After the Nguyen and Rodriguez’s matters were heard in the Magistrates’ Court, Gabe filed civil complaints against VLA seeking $2,246.28 and $7,904.80 respectively on the basis of moneys due and owing, under contract, on a quantum meruit or alternatively damages for breach of the Trade Practices Act, 1974 or the Fair Trading Act, 1985.

imageNeither the magistrate nor Justice Marilyn Warren (as she was then – pic) on appeal from the magistrate, Kuek v Victoria Legal Aid [1999] VSC 447, nor the Court of Appeal (Winneke P, Phillips and Buchanan) on appeal from Justice Warren [2001] VSCA 80 thought much of Gabe’s case.

Prior to filing the Nguyen and Rodriguez complaints Gabe had applied to a body called the Costs Disputes Committee within VLA for an uplift in fees for Rodriguez and a couple of other characters named Huynh and Phung.

The committee refused Gabe’s applications and also refused to give him reasons for its decisions. Gabe applied to the Supreme Court for prerogative relief which was refused by Justice John Coldrey on February 26, 1998, because the applications were out of time. An appeal to the Court of Appeal (Winneke, Tadgell and Ormiston) – Kuek v Victoria Legal Aid [1999] VSCA 44 – was dismissed.

Alas, Gabe’s pursuit of his personal legal adventures have not met with all that much success either.

He contested a speeding charge after being detected by a laser device. It was alleged by the rozzers that he had been doing 81 kph in a 60 kph zone. Before the magistrate Gabe was convicted, fined $180 and ordered to pay $133 costs.

The Court of Appeal (Phillips and Buchanan and O’Bryan) in Kuek v Wellens [2002] VSCA 31 dismissed Gabe’s appeal from a decision of Silver Tray Gillard, [2000] VSC 326, who had in turn dismissed his appeal from a County Court judge’s decision to whom Gabe had unsuccessfully appealed from the conviction imposed by the magistrate.

On March 24, 2003, Gabe’s 1994 2.2 litre Toyota Camry let him down. He called in a mobile mechanic to effect repairs. The mechanic replaced the timing belt, did some other minor adjustments and gave Gabe a 12 month or 20,000 kms warranty on the work done.

Unfortunately, on May 13, 2003 the vehicle broke down again but on this occasion the damage was more serious – in addition to a frayed timing belt the engine had bent valves.

Gabe sought $3,855.90 from the mobile mechanic for allegedly bungling the repairs in March.

The magistrate didn’t see it Gabe’s way, holding that there was no evidence that anything done or not done by the mobile mechanic had caused the valves to fail.

On appeal to the Supreme Court, Justice Rosemary Balmford was likewise unimpressed and dismissed the appeal: Kuek v Devflan Pty Ltd [2005] VSC 163.

An appeal to the Court of Appeal (Warren, Eames and Bell) [2006] VSCA 186, was also dismissed.

Gabe’s contribution to the cause of fearless litigation should be recognised. Accordingly, I’m nominating him as the 2006 recipient of the Joe Guss Legendary Litigators Award.

If you can come up with anyone more worthy I’m dying to know.


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