Appellants v Council of the Law Society of the ACT
[2011] ACTSC 133
•24 August 2011
THE APPELLANTS v COUNCIL OF THE LAW SOCIETY OF THE ACT AND THE LEGAL PRACTITIONER
[2011] ACTSC 133 (24 August 2011)
ADMINISTRATIVE LAW – particular tribunals or bodies – ACT Civil and Administrative Tribunal – power to order costs in proceedings under the Legal Profession Act 2006 (ACT) – Legal Profession Act 2006 (ACT), s 416 – meaning of “any order it considers appropriate” – no power to order costs where otherwise there is no jurisdiction.
PROFESSION AND TRADES – lawyers – power of the ACT Civil and Administrative Tribunal – power to order costs in proceeding under the Legal Profession Act 2006 (ACT) – Legal Profession Act 2006 (ACT), s 416 – meaning of “any order it considers appropriate” – no power to order costs.
ADMINISTRATIVE LAW – particular tribunals or bodies – ACT Civil and Administrative Tribunal – practice and procedure – meaning of appeal to the Tribunal – whether an application or different procedure.
WORDS AND PHRASES – “appeal”.
WORDS AND PHRASES – “any order it considers appropriate”.
Legal Profession Act2006 (ACT), ss 384, 406, 407, 410, 411, 412, 413, 416, 418, 425, 433, 434, Pt 2.2, 4.5, 4.7, 4.8, ch 4
ACT Civil and Administrative Tribunal Act 2008 (ACT), ss 6, 9, 10, 25, 29, 48, 79, 81, 82, 83, Pt 5, Div 8.1
ACT Civil and Administrative Tribunal (Transitional Provisions) Regulations 2009 (ACT)
Supreme Court Act 1933 (ACT), s 37E, 370
Partnership Act 1892 (NSW), s 23
Fish Supply Management Act 1972 (Qld)
Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148
Crimes Act 1900 (ACT), s 318
Legislation Act 2001 (ACT), s 132
ACT Civil and Administrative Tribunal Legislation Amendment Act 2008 (ACT)
District Court Act 1973 (NSW), s 6
Industrial Arbitration Act 1940 (NSW), s 30B
Saddington, AG, Taxation of Costs Between Parties (Law Book Co: Sydney, 1919)
Oliver, LL, Law of Costs (Law Book Co: Melbourne, 1960)
Quick, R and Garnsworthy, D, Quick on Costs (Thomson Lawbook Co: Sydney, 2001)
Dal Pont, Prof GE, Law of Costs (LexisNexis Butterworths: Sydney, 2009) 2nd edition
The Legal Practitioner v Council of the Law Society of the Australian Capital Territory [2011] ACTSC 110
B and BS Pty Ltd v Law Society of the Australian Capital Territory and Anor [2010] ACAT 1
B and BS Pty Ltd v The Council of the Law Society of the ACT and Anor [2010] ACAT 43
R v The Credit Tribunal; Ex parte General Motors Acceptance Corporation Australia (1977) 137 CLR 545
Tickner v Bropho (1993) 40 FCR 183
Booker v Gill (1898) 15 WN (NSW) 158
Queensland Fish Board v Bunney; Ex parte Queensland Fish Board [1979] Qd R 301
Smith v Champion (No 2) [2009] ACTCA 15
Knaggs v Solicitors’ Statutory Committee (No 2) (1992) 27 NSWLR 603
Builder’s Licensing Board v Sperway Constructions (Syd) Pty Ltd and Anor (1976) 135 CLR 616
Knight and Anor v F.P. Special Assets Ltd and Ors (1992) 174 CLR 178
Kirk and Anor v Industrial Court of New South Wales and Anor (2010) 239 CLR 531
Eastman v The Queen (2000) 203 CLR 1
Allesch v Maunz (2000) 203 CLR 172
Veghelyi v Council of the Law Society of New South Wales (1989) 17 NSWLR 669
Oshlack v Richmond River Council (1998) 193 CLR 72
Law Society of New South Wales v Jackson [1981] 1 NSWLR 730
Mason v Ryan (1884) 10 VLR (L) 335
Harrison, San Miguel & Co v Maddern [1905] VLR 400
House v The King (1936) 55 CLR 499
Osland v Secretary to the Department of Justice (2010) 84 ALJR 528
R v Fisher (No 2) [2011] ACTSC 100
Byrnes v Barry (2004) 150 A Crim R 471
Garnett v Bradley (1878) 3 App Cas 944
GJ v AS [2011] ACTSC 119
Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226
Maylor (No 2) v Mid North Coast Area Health Service [2001] NSWADT 118
AT v Commissioner of Police (NSW) [2010] NSWCA 131
Clyne v Wrigley [1980] 1 NSWLR 599
Re Verus Capital Ltd (as mgr of the Benwood Property Trust) and Australian Securities and Investments Commission (2001) 37 ACSR 430
R v JS (No 2) (2007) 179 A Crim R 10
R v Mosely (1992) 28 NSWLR 735
In Re Crown Employees (Division of Science Services – Department of Agriculture) Award [1960] AR (NSW) 567
Re Hospital Employees Technical (State) Award (1992) 42 IR 1
No. SCA 70 of 2010
Judge: Refshauge ACJ
Supreme Court of the ACT
Date: 24 August 2011
IN THE SUPREME COURT OF THE )
) No. SCA 70 of 2010
AUSTRALIAN CAPITAL TERRITORY )
THE APPELLANTS
Appellants
v
COUNCIL OF THE LAW SOCIETY OF THE ACT
Respondent
AND
THE LEGAL PRACTITIONER
Party Joined
ORDER
Judge: Refshauge ACJ
Date: 24 August 2011
Place: Canberra
THE COURT ORDERS THAT:
The title to these proceedings be amended to delete reference to the “Court of Appeal” and to be renumbered within the original jurisdiction of the Court.
The appeal be upheld and the orders of the ACAT set aside and in lieu the applications for costs be dismissed.
The parties be heard as to any consequential orders.
Social commentators will no doubt be able to explain and contextualise the increasing space taken in the adversarial landscape by arguments about costs.
The cost of litigation is, of course, seen as a barrier to the access by the community to justice and often weighs heavily on the minds of those who may be tempted to embark on litigation in our courts.
Perhaps, therefore, it is unsurprising that an increasing number of published decisions stream from courts around our country about costs, often published separately from the substantive dispute which led to the litigation in the court in the first place.
It is also unsurprising that the literature on costs is burgeoning. Until relatively recently, the major contribution was the very early Saddington, AG, Taxation of Costs Between Parties (Law Book Co: Sydney, 1919) and the classic Australian text, Oliver LL, Law of Costs (Law Book Co: Melbourne, 1960), for long only available second-hand, if you were lucky enough to find one. There was nothing much else apart from loose-leaf services which for the most part were compilations of the scales of costs from the various jurisdictions without significant commentary. Now there is the three volume (plus supplement) loose-leaf substantial text, Quick, R and Garnsworthy, D, Quick on Costs (Thomson Lawbook Co: Sydney, 2001), and the excellent volume by Professor Dal Pont, Law of Costs (LexisNexis Butterworths: Sydney, 2009), now in its second edition. The table of cases in each is very extensive. In Quick on Costs, it is 178 pages long.
This case requires me to decide the sole question of costs in an appeal from the Australian Capital Territory Civil and Administrative Tribunal (the ACAT) when I heard the submissions of senior counsel for each of the Appellants and the party joined.
To be fair to the parties, the point at issue is an important question of jurisdiction to order costs, not so much as to who should bear the costs or as to the quantum of costs.
The proceedings
The genesis of this appeal is in a complaint that was originally made by an individual and a company, the Appellants, to the Respondent, the Council of the Law Society of the Australian Capital Territory, about the conduct of a Legal Practitioner in proceedings in the Family Court of Australia. Those proceedings involved a dispute about the property of a marriage. The Legal Practitioner acted for the husband and another lawyer acted for the wife.
The regulation of the legal profession has been helpfully summarised by the Full Court in The Legal Practitioner v Council of the Law Society of the Australian Capital Territory [2011] ACTSC 110. As to complaints, the Full Court said (at [7]):
Under the Legal Profession Act, complaints about legal practitioners may be made to the ‘relevant council’ (s 394). The relevant council may dismiss the complaint (s 412), deal with it in a summary way (s 413), or apply to the ACT Civil and Administrative Tribunal established under the ACAT Act (see Legislation Act 2001 (ACT), Dictionary) (the Tribunal) for an order in relation to the complaint (s 419). A decision to dismiss a complaint or deal with it summarily may be appealed to the Tribunal by the complainant or the legal practitioner respectively (s 416). If the Tribunal finds the practitioner guilty of unsatisfactory professional conduct or professional misconduct, it may recommend that the practitioner’s name be removed from the local roll, or suspend, cancel or otherwise restrict the practitioner’s local practising certificate, or reprimand the practitioner (s 425). Tribunal decisions may be appealed internally (ACAT Act, s 79) or to the Supreme Court (ACAT Act, s 86).
In this case, the complaint was brought by an individual and a company, neither of whom were parties to the Family Court proceedings, though they were involved because the transfer of a share in the company to the individual complainant was challenged in the proceedings.
The Respondent dismissed the complaint. The Appellants appealed to what was then the Legal Practitioner Disciplinary Tribunal, a body established under the Legal Profession Act 2006 (ACT) (the Legal Profession Act).
When the ACT Civil and Administrative Tribunal Act 2008 (ACT) (the ACAT Act) came into force, consequential amendments abolished that Tribunal, giving the powers it exercised to the ACAT. The ACT Civil and Administrative Tribunal (Transitional Provisions) Regulations 2009 (ACT), made appropriate provision for transfer of the hearing of complaints such as in this case. I do not need to consider those provisions further, save to note that the appeal then was heard by the ACAT.
In the ACAT, the practitioner, the subject of the complaint, applied to be joined as a party and the appropriate order was made for that joinder. I shall refer to that party as the Legal Practitioner.
It is not necessary for present purposes to detail or further consider the complaint, its consideration by the Respondent or by the ACAT. Suffice to say that, on 8 January 2010, the ACAT dismissed the appeal from the decision of the Respondent dismissing the complaint. The details are set out in the decision of the ACAT: B and BS Pty Ltd v Law Society of the Australian Capital Territory and Anor [2010] ACAT 1.
When the ACAT dismissed the appeal, the Legal Practitioner and the Respondent both sought an order for costs. That application was heard on 28 May 2010 and, on 30 July 2010, the ACAT ordered that the Appellants pay the costs of the Legal Practitioner and of the Respondent as agreed or taxed at the ACT Supreme Court Scale by a taxing officer appointed by the Registrar of the ACAT, such costs to include costs thrown away by reason of an adjournment granted on 26 March 2010: B and BS Pty Ltd v The Council of the Law Society of the ACT and Anor [2010] ACAT 43.
The Appellants appealed from this decision. As noted above (at [8]), an appeal from a decision of the ACAT is in the first instance made to the ACAT under s 79 of the ACAT Act. Section 81 of that Act requires the Appeal President of the ACAT to constitute a tribunal which includes one or more presidential members and it can include one or more non-presidential members. It does not appear that it must be a multi-member tribunal, though clearly it can be.
Under s 83 of the ACAT Act, however, the appeal can be removed by order of the ACAT to the Supreme Court either by consent, or, if it considers it appropriate, by order of the ACAT. On 21 September 2010, on the consent of the parties, the appeal was removed to this Court.
For some reason, the proceedings in this Court were entitled and numbered as if they were an appeal to the Court of Appeal (constituted under s 37E of the Supreme Court Act 1933 (ACT)). The removal of an appeal from the ACAT into the Supreme Court does not attract the jurisdiction of the Court of Appeal. It is, in this court, simply the exercise of its original jurisdiction in place of the internal appeal process of the ACAT. The ACAT Act is not helpful in deciding the nature of the proceedings, but it seems to me that, in this instance, this Court is hearing the appeal from the decision of the ACAT on the original application that the ACAT in its appellate jurisdiction under Div 8.1 of the ACAT Act would otherwise have heard and it is, therefore, the exercise of the appellate jurisdiction of the ACAT but within the jurisdiction of a single judge, as the appellate jurisdiction of this Court is exercised by a single judge from a decision of a Magistrate. The hearing should be conducted within the procedural framework of this Court. Fortunately, no specific issue arose out of this question.
It is not, however, the exercise of jurisdiction of the Court of Appeal. Accordingly, some remedial directions must be given to regularise the proceedings in this Court. Proposed orders have been helpfully articulated by counsel for the Legal Practitioner and, with some variation, I will proceed accordingly.
The appeal
The Appellants were represented by Senior Counsel as was the Legal Practitioner. The Respondent did not appear at the hearing. It had filed a submitting Notice of Intention to Respond, submitting to any order of the Court save as to costs.
Legislative provisions
The relevant provisions of the Legal Profession Act are to be found in ch 4 (Complaints and Discipline). That chapter has a legislated purpose, which is set out in s 384 as follows:
The purposes of this chapter are as follows:
(a)to provide a nationally consistent scheme for the discipline of the legal profession in the ACT, in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally;
(b)to promote and enforce the professional standards, competence and honesty of the legal profession;
(c)to provide a means of redress for complaints about lawyers;
(d)to enable people who are not lawyers to participate in complaints and disciplinary processes involving lawyers.
As Barwick CJ observed (at 552) of such a provision in R v The Credit Tribunal; Ex parte General Motors Acceptance Corporation Australia (1977) 137 CLR 545:
Such an expression of intention in the Act of the Parliament will not, of course, be definitive. But the courts can resort to it in the case of uncertainty or ambiguity when the operation of the Act of the Parliament, according to its other terms, has been ascertained and applied. Thus, the statutory expression of Parliament is not invalid or inoperative. Without being definitive, it may assist in the determination of the operative effect of the Act ...
More recently, in Tickner v Bropho (1993) 40 FCR 183, all three judges in separate judgments considered that the title and objects section of the subject legislation were relevant to its proper construction.
I do not need to repeat the broad structure of the complaints process, summarised by the Full Court, as I have set out above (at [8]).
The Legal Profession Act provides for the appeal against decisions of the Respondent in Pt 4.5 (Decision of Council), by s 416, which is in the following terms:
416 Appeals to ACAT against decisions of relevant council
(1)A person mentioned in table 416, column 2 may appeal a decision mentioned in column 3 to the ACAT.
(2)The appeal must be made not later than –
(a)28 days after the day the relevant council gave the person making the appeal a statement of reasons under section 415; or
(b)any further time allowed by the ACAT.
(3)The ACAT may make any order it considers appropriate on the appeal.
(4)Without limiting subsection (3), the ACAT may make 1 or more of the orders mentioned in section 425 (3) to (5) (ACAT orders – Australian legal practitioners).
Table 416Appealable decisions
column 1 column 2 column 3
item person decision_____________________________
1 complainant dismiss a complaint under s 412
2complainant omit matter from application to ACAT that was originally part of complaint
3Australian legal take action under s 413 in relation to
practitioner practitioner
complained about
Section 425(3) to (5) (which appears in Pt 4.7 (Disciplinary Action) of the Act) set out orders that the ACAT may make if it is satisfied that a practitioner is guilty of unsatisfactory professional conduct or professional misconduct. The sub-sections are in the following terms:
(3)The ACAT may make the following orders in relation to the Australian legal practitioner:
(a)an order recommending that the name of the practitioner be removed from the local roll;
(b)an order that the practitioner’s local practising certificate be suspended for a stated period or cancelled;
(c)an order that a local practising certificate not be granted to the practitioner before the end of a stated period;
(d)an order that –
(i)stated conditions be imposed on the practitioner’s practising certificate granted or to be granted under this Act; and
(ii)the conditions be imposed for a stated period; and
(iii)states the time (if any) after which the practitioner may apply to the ACAT for the conditions to be amended or removed;
(e)an order publicly reprimanding the practitioner or, if there are special circumstances, privately reprimanding the practitioner.
(4)The ACAT may make the following orders in relation to the Australian legal practitioner:
(a)an order recommending that the name of the practitioner be removed from an interstate roll;
(b)an order recommending that the practitioner’s interstate practising certificate be suspended for a stated period or cancelled;
(c)an order recommending that an interstate practising certificate not be granted to the practitioner before the end of a stated period;
(d)an order recommending –
(i)that stated conditions be imposed on the practitioner’s interstate practising certificate; and
(ii)that the conditions be imposed for a stated period; and
(iii)a stated time (if any) after which the practitioner may apply to the ACAT for the conditions to be amended or removed.
(5)The ACAT may make the following orders in relation to the Australian legal practitioner:
(a)an order that the practitioner pay a fine of a stated amount of not more than the amount mentioned in section 427;
(b)an order that the practitioner undertake and complete a stated course of further legal education;
(c)an order that the practitioner undertake a stated period of practice under stated supervision;
(d)an order that the practitioner do or not do something in relation to the practice of law;
(e)an order that the practitioner cease to accept instructions as a public notary in relation to notarial services;
(f)an order that the practitioner’s practice be managed for a stated period in a stated way or subject to stated conditions;
(g)an order that the practitioner’s practice be subject to periodic inspection by a stated person for a stated period;
(h)an order that the practitioner seek advice in relation to the management of the practitioner’s practice from a stated person;
(i)an order that the practitioner not apply for a local practising certificate before the end of a stated period.
The only reference to costs in the Legal Profession Act is in Pt 4.7, in s 433 which provides:
433 Costs orders by ACAT
(1)If the ACAT finds an Australian legal practitioner guilty of unsatisfactory professional conduct or professional misconduct, the ACAT must order the practitioner to pay costs (including costs of the relevant council and the complainant), unless the ACAT is satisfied that exceptional circumstances exist.
(2)Even if the ACAT does not find an Australian legal practitioner guilty of unsatisfactory professional conduct or professional misconduct, the ACAT may order the practitioner to pay costs (including costs of the relevant council and the complainant), if satisfied that –
(a)the only or main reason why the proceeding was started in the ACAT was a failure of the practitioner to cooperate with a council; or
(b)there is some other reason justifying the making of an order in the particular circumstances.
(3)The ACAT may make orders requiring the relevant council for an Australian legal practitioner to pay costs, but may do so only if satisfied that the practitioner is not guilty of unsatisfactory professional conduct or professional misconduct and the ACAT considers that special circumstances justify the making of the orders.
(4)The ACAT may make orders requiring an Australian legal practitioner in relation to whom a proceeding is pending before the ACAT to pay costs on an interlocutory or interim basis.
Note:Alternatively, the ACAT might order that costs be payable from a particular fund (eg a statutory interest account) in these circumstances.
(5)An order for costs –
(a)may be for a stated amount; or
(b)may be for an unstated amount but must state the basis on which the amount is to be decided.
(6)An order for costs may state the terms on which costs must be paid.
This section does not apply to this appeal for the ACAT did not find the Legal Practitioner guilty of unsatisfactory professional conduct nor of professional misconduct, nor was it making an order for the Legal Practitioner to pay costs.
Although s 48 of the ACAT Act gives certain (and unclear) power for the ACAT to make costs orders, it is expressly excluded from proceedings under the Legal Profession Act: s 434(b) of the Legal Profession Act.
The reasons of the ACAT
In its decision on costs, the ACAT distinguished these proceedings from disciplinary proceedings under Pt 4.7 of the Legal Profession Act. In particular, it rejected s 433, within that Part, as a relevant source of power to make a costs order on the appeal. It identified s 416 of that Act as the only applicable section.
It referred to the submission by the Legal Practitioner that the opening words of s 416(4), “Without limiting subsection (3) ...” as emphasising the breadth of the powers under s 416(3).
It referred to two decisions relied upon by the Appellants, namely Booker v Gill (1898) 15 WN (NSW) 158 and Queensland Fish Board v Bunney; Ex parte Queensland Fish Board [1979] Qd R 301 (Queensland Fish Board).
In Booker v Gill, the Full Court of the Supreme Court of New South Wales held that s 23 of the Partnership Act 1892 (NSW), as it then stood, which provided for the court to make “... all such other orders and directions ... which the circumstances of the case may require”, did not grant the court power to order costs. The decision of the court was very brief. The ACAT, however, considered that the court must have considered that the general words were to be read as limited by the subject matter of the balance of the sub-section in which they appeared, namely the machinery for making of orders to facilitate the collection of money due to a judgment creditor of a partner, and not a general jurisdiction to make any order which may be necessary to dispose of the proceedings.
In Queensland Fish Board, the Full Court of the Supreme Court of Queensland had to consider a provision of the Fish Supply Management Act 1972 (Qld), which gave power to a magistrate after seizure of fish by an inspector to make orders about the disposal of the nett proceeds of the sale of the fish and “(e) make any other order it considers just”. The Court held that the power had to be read in the context of the section, about disposition of the sale proceeds of the seized fish, and did not give power to award costs.
The ACAT referred to the following passage in the decision of Connolly J (with whom Wanstall CJ and Lucas J agreed) where the Court held (at 303):
It must be remembered that there is a well established principle that apart from the inherent jurisdiction of the court of chancery, costs are entirely the creation of statute and there is no common law jurisdiction in tribunals to grant costs: R v Justices of South Brisbane, ex parte Zagami (1901) 11 Q.L.J. 81 at p 83; Garnett v Bradley (1878) 3 App Cas 944 at p 962. Some of the older decisions suggest that the power to award costs must be conferred in express terms. See e.g. Service v Flateau (1900) 16 W.N. (N.S.W.) 248; Victorian Phillip-Stephan Photo-Litho Co v Davis (1890) 11 L.R.N.S.W. 257 but the better view would seem to be that the power can be conferred expressly or by necessary implication: Spicer v Carmody 48 S.R. (N.S.W.) 348 at p 350. Having regard to this principle however, the power must at least clearly appear. The language of paragraph (e) does not in terms refer to costs at all and it contains no clear indication of an intention to confer the power.
The ACAT also referred to Smith v Champion (No 2) [2009] ACTCA 15, where an appeal from the trial judge was upheld but the trial judge died before he could make an order as to the costs of the trial. The Court of Appeal expressed some reservations about whether it could make an order for the costs of the trial. It decided that it could do so, relying on s 37O(1)(b) of the Supreme Court Act 1933 (ACT), which gave the Court of Appeal power “to give any order it considers appropriate”.
The ACAT accordingly considered that it had power to make an order for costs.
It turned to consider the basis for an order for costs against the Appellants. It noted that they had failed in their complaint to the Respondent and also in their appeal to the ACAT against that decision. It stated: “[t]hey have failed”. It referred to the general principles of litigation where costs follow the event, describing it as “a cornerstone of legal proceedings.”
The ACAT next held that “... we can see no grounds for adopting other than a pragmatic exercise of the costs discretion” and noted that “[t]he Appellants did not argue otherwise ...”. The ACAT also considered that the costs thrown away by an adjournment of the proceedings sought by the Appellants in March 2010 should also be paid by the Appellants.
The ACAT then considered that the Respondent’s costs should also be paid by the Appellants. It noted that the appeal was the first of its type under the legislative provisions and that it raised “some novel issues to [sic] the suppression of evidence of the name or other material that might identify the practitioner.” Despite commenting that such “issues were of relevance not only to the practitioner but also in the future to solicitors who may become the subject of appeals” and that the Respondent “to have a limited role in the proceedings”, the ACAT considered that the Respondent was entitled to its costs from the Appellants.
The Appellants’ submissions
The Appellants’ submitted that:
(a) The ACAT had no power to order costs against the Appellants; and
(b) In the alternative, the ACAT erred in exercising its discretion so to order.
As to the first submission, the Appellants submitted that:
(i) The ACAT is and was at all times a statutory tribunal: Knaggs v Solicitors’ Statutory Committee (No 2) (1992) 27 NSWLR 603 (at 610). As such, as the Court there noted, it had to find its powers in the governing legislation.
(ii) The “appeal” proceedings before the Tribunal were wholly statutory: Builder’s Licensing Board v Sperway Constructions (Syd) Pty Ltd and Anor (1976) 135 CLR 616 (at 619, 621-2). As the High Court there noted, an appeal is not a common law proceeding but a remedy given by statute and it is to the statute to which a court has to turn to identify the nature and extent of the proceedings.
(iii) Absent a statutory grant of power, the ACAT had no power to make any order for costs: Knight and Anor v F.P. Special Assets Ltd and Ors (1992) 174 CLR 178 (at 182, 193), in which the court referred to the fact that costs were “entirely and absolutely creatures of statute” at common law. The Appellants also referred to Kirk and Anor v Industrial Court of New South Wales and Anor (2010) 239 CLR 531 (at 584), where the High Court noted that in that case the Court of Appeal, as exercising original jurisdiction in which it quashed the decision of the Industrial Court, had no power to make an order for costs of the proceedings before that Court.
The Appellants further submitted that the proceedings before the ACAT were in the nature of an appeal de novo in the sense described in Eastman v The Queen (2000) 203 CLR 1 (at 97; [290]) and Allesch v Maunz (2000) 203 CLR 172 (at 180-1; [22]-[23]) and illustrated by Veghelyi v Council of the Law Society of New South Wales (1989) 17 NSWLR 669 (at 673). That is to say, the ACAT was not exercising an appellate jurisdiction but an original jurisdiction, reviewing an administrative decision. Such a characterisation, submitted the Appellants, did not carry with it any power to award costs. This was reinforced, it was submitted, by the terms of s 418(4) of the Legal Profession Act. To this, I would add ss 411 and 412(1) and note the scheme of Pt 4.8 itself.
The Appellants attacked the decision of the ACAT, submitting that it was incorrect having regard to:
(i) the terms of s 416(3), including the words “on the appeal”;
(ii) the subject matter of the appeal, namely the decision to dismiss the complaint;
(iii) the nature of the orders referred to in s 416(4);
(iv) that s 48 of the ACAT Act did not apply because of s 434;
(v) that s 48 of the ACAT Act did confer a power to order costs;
(vi) the terms of s 433 which regulated costs under Pt 4.7, without any reference to costs being made against any party other than the legal practitioner;
(vii) the structure and ambit of ch 4 of the Act; and
(viii) the purpose of ch 4 as identified in s 384.
The Appellants submitted that the words “on the appeal” were words of limitation requiring the focus of the section to be on whether the decision of the Respondent was correct and, if not, what orders, if any, should be made in respect of the Legal Practitioner.
The scheme of the legislation, it was submitted, was that consumers of legal services should be able to make a complaint without being ordered to pay any costs. The Respondent had no power to make an order for costs; neither did the ACAT. Such a power would act as a strong disincentive to complainants which was contrary to the purposes expressed in s 384, especially paragraph (d).
There was, it was further submitted, no necessary implication that the ACAT had the power to order costs; the legislative scheme was not unworkable without it.
The construction put on s 416 by the ACAT would lead to the bizarre result that the ACAT would have a wider power of costs on appeal than it had when dealing with discipline under Pt 4.7 and under s 433 in particular and, indeed, than it had under s 48 of the ACAT Act itself.
As to the exercise of the discretion, if any, to award costs, the Appellants submitted that it took no account of the nature of the appeal, as a mechanism designed to protect the public through the complaints mechanism. They referred to Oshlack v Richmond River Council (1998) 193 CLR 72 (at 88; [40]; 89 [45] and to Law Society of New South Wales v Jackson [1981] 1 NSWLR 730, where, in the latter case (at 737), Samuels JA (with whom Reynolds and Mahoney JJA agreed) said:
It seems to me that, there being no provision in the Act or rules akin to the Supreme Court Rules, 1970 Pt 52, r 11 the Statutory Committee has a complete discretion, which of course must be exercised judicially. There is, however, no presumption (in regard to costs) in favour of a party before the Statutory Committee who has succeeded on any issue or question. Indeed the contrary is rather suggested by the terms of r 14 which enable the Committee, even in the absence of a finding of misconduct, to order the solicitor to pay the costs of the proceedings if, having regard to his conduct and to all the circumstances of the case, it seems just to do so. It follows also that the principle of cases such as Donald Campbell & Co Ltd v Pollak [1927] AC 732, do not apply. Hence in assuming, as the Statutory Committee did, that the solicitor had a prima facie right to his costs, the Committee fell into error and the order should be set aside. It therefore falls to us to exercise the discretion afresh.
The presumption that costs followed the event was, it was submitted, a failure to exercise the discretion in the particular proceedings which the Legal Profession Act enabled and it could not ignore the policy of that Act.
Indeed, that the proceedings were the first under the legislated provisions, as noted by the ACAT, was a powerful reason for declining to make any order.
The submissions of the Legal Practitioner
After raising the issue of the matter being entitled as in the wrong court (as to which, see [17] and [18] above), the Legal Practitioner submitted that there was no jurisdiction to entertain “what purports to be an appeal from a ruling on costs made in the ACAT”.
The practitioner relied on ss 79 and 83 of the ACAT Act which, relevantly, provide:
79 Appeals within tribunal
(1)This section applies if –
(a)the tribunal has decided an application (the original application); and
(b)the original application was not an appeal from a decision by the tribunal.
...
(3)A party to the original application may, by application, appeal the decision to the tribunal on a question of fact or law.
83Removal of application from tribunal to Supreme Court
(1)If the parties to an application or an appeal (a matter) jointly apply to have the matter removed to the Supreme Court, the tribunal must order that the matter be removed to the Supreme Court.
(2)If a party to a matter applies to have the matter removed to the Supreme Court, the tribunal may, if it considers it appropriate, order that the matter be removed to the Supreme Court.
The argument was that the initial proceedings in the ACAT under s 416 of the Legal Profession Act was not an application within the meaning of s 79 of the ACAT Act and so there was no jurisdiction to appeal internally to the ACAT under that section; thus there was no appeal.
As the appeal from the Respondent had been disposed of, there was (because of the absence of a power for an internal appeal) nothing by way of appeal that could be removed to this court under s 83 of the ACAT Act.
It does not appear that any such submission was made to the Appeals President of the ACAT at the time that the parties on 21 September 2010 all consented to the matter being transferred to this court under s 83(1) of the ACAT Act. It has, of course, been long held that, unless by statute, consent cannot give jurisdiction where there is none: Mason v Ryan (1884) 10 VLR (L) 335 (at 339); Harrison, San Miguel & Co v Maddern [1905] VLR 400 (at 403-4).
The Legal Practitioner submitted, however, that, if there was jurisdiction, the ACAT had, in exercising its power under s 416 of the Legal Profession Act, power to make an order for costs. Relying on the width of s 416(3), the Legal Practitioner submitted that it was wide enough to empower the making of an order for costs and that this was the plain meaning of the words, from which there was no reason to depart.
The Legal Practitioner relied on the introductory words to s 416(4), “Without limiting subsection (3)...” as reinforcing this, since the breadth of the powers under s 425(3) to (5) was “such as to leave very little to be covered by” s 416(3) otherwise.
In response to the Appellants’ submission that the words “on the appeal” in s 416(3) were words of limitation, the Legal Practitioner submitted that this simply meant that, for example, it would preclude the ACAT from making an order that the Appellants pay the costs of the Legal Practitioner in connection with his response to the complaint before the Respondent.
The Legal Practitioner then referred to s 433 of the Legal Profession Act and agreed that it had no application to appeals under s 416. He further submitted that “[i]t is inconceivable that it was intended by the legislature to leave [the] ACAT without any power to order costs in appeals under the Legal Profession Act”, a position that would pertain were the Appellants’ construction of s 416(3) to be accepted.
It was also accepted that s 48 of the ACAT Act did not apply to proceedings under s 416 of the Legal Profession Act.
The Legal Practitioner also relied on Smith v Champion (No 2), on which the ACAT had relied.
In argument, Mr M Bartfeld QC, who appeared with Mr R Clynes for the Legal Practitioner, was asked to delimit the width of the power given under s 416(3), if any was to be set. I confess during this argument I posed some quite extreme examples, such as whether it would empower the court to impose a sentence of imprisonment on the Legal Practitioner or to hold that the Legal Profession Act was invalidly enacted. While he submitted that these orders would not be encompassed, Mr Bartfeld did not, so far as I understood his submissions, give a clear principle as to the limits, if any, of the width of the power under the sub-section. Whatever the limits, however, he submitted that the section empowered the ACAT to make the costs order and that this was the plain meaning of the sub-section.
As to the second ground of appeal, the Legal Practitioner submitted that such an appeal was from a discretionary decision of the ACAT and thus governed by the well-known principles established by the High Court in House v The King (1936) 55 CLR 499 (at 504-5). He also pointed to the following passage from Professor Dal Pont’s Law of Costs (at 686; [20.28]):
Expressed another way, where there is a decision involving discretionary judgment, an appellate tribunal will adopt a strong presumption in favour of the correctness of the decision appealed from, which it will affirm unless satisfied that it is clearly wrong. (Footnote omitted; emphasis in the original)
The decision of the ACAT was, he submitted, well within the discretion to be exercised by the ACAT.
In the event that I held that the discretion did miscarry, however, he submitted, that I should exercise the discretion anew, a submission supported by s 82 of the ACAT Act. I would, he submitted, make the same orders as the ACAT had made. The factors he submitted that were relevant to that re-exercise of discretion may be summarised as follows:
(i) the Appellants had failed before both the Respondent and the ACAT, which attracted “... the general principles applying to litigation [that] the unsuccessful party should be required to meet the costs of the successful party”;
(ii) had the Respondent referred the matter to the ACAT under Pt 4.7 of the Legal Profession Act and failed, it would have faced a costs order in favour of the Legal Practitioner; it would be curious if, the Respondent having made the correct decision, the Legal Practitioner’s vindication on appeal from that decision left him without the possibility of recovering costs;
(iii) the very wide and serious powers that the ACAT possessed under s 425 of the Legal Profession Act meant that the Legal Practitioner was inevitably required to take the proceedings very seriously; indeed, the Appellants in their submissions to the ACAT had submitted that the matter was “not a case which can be satisfactorily dealt with by anything in the nature of a ‘private reprimand’.”
(iv) the Appellants had urged the ACAT to order that their costs be paid by the Legal Practitioner whether or not misconduct should be found;
(v) the Legal Practitioner had urged that the appeal be heard “on the papers” and the Appellants had insisted upon a hearing;
(vi) the Legal Practitioner’s written submissions on appeal should have made it clear to the Appellants that their appeal was without foundation, which should have led them, acting reasonably, to withdraw the appeal and thus save the costs of an extended hearing, lasting three days, and of the consequences of the Appellants’ conduct which the Legal Practitioner criticised as having wasted time and resources;
(vii) the ACAT was in the best situation to determine the question of costs, having heard the whole of the proceedings;
(viii) there is no inconsistency with a regime established “to protect the public” and the making of costs orders in the proper exercise of a discretion; and
(ix) the Appellants had caused unnecessary costs to be incurred in their late application for an adjournment on 26 March 2010.
Consideration
Jurisdiction(i)
The first issue is the submission of the Legal Practitioner that the court had no jurisdiction, for s 79 of the ACAT Act did not permit the Appellants to appeal within the ACAT from the original decision and so there was no appeal that could be removed under s 83 of the ACAT Act.
In response, the Appellants pointed to the wide use of the term “application” in the ACAT Act. Thus, in the objects section, s 6, object (c) was “to ensure that applications to the Tribunal are resolved as quickly as is consistent with achieving justice” and there was no reference to any other proceeding, such as an appeal.
Further, Pt 3 of the ACAT Act was concerned with and entitled “Applications to Tribunal”. The first section, s 9, provides:
A person may apply to the tribunal if an authorising law provides that the application may be made.
Section 10 then sets out the prescribed contents of an application which initiates proceedings and the time limit for making the application.
There was no similar provision in the ACAT Act for any other method of invoking the jurisdiction of the ACAT. Thus, if the Legal Practitioner was correct and the appeal under s 416 of the Legal Profession Act was not an application, then there was no prescribed method or time limit for commencing such proceedings or any content of the initiating process. These would be odd gaps in the legislation.
Similarly, Pt 5 (Tribunal Procedures) of the ACAT Act refers to applications extensively. These procedures would appear to apply to the initial proceedings reviewing (appealing) the Respondent’s decision before the ACAT. It is true that there are several references that could be considered as referring to proceedings such as those under s 416 of the Legal Profession Act as being a different kind of proceeding rather than an application (for instance, s 25(1)(b), “deal with applications and other proceedings”, s 29(5)(b) “for an appeal”) but, without dealing with those expressly, they are, in my view, at least ambiguous and not determinative.
I note that the ACAT Act also refers widely to the source of jurisdiction, apart from civil disputes, as originating in an “authorising law” which is relevantly defined in the Dictionary as “a territory law that provides that an application may be made to the tribunal”.
Having considered the terms of the ACAT Act and the scheme of the regime it establishes to manage its business, I am satisfied that all matters that come before ACAT at first instance are, within the meaning of the ACAT Act, applications, whether called applications or appeals in the authorising law. The term “appeal”, within the ACAT Act, is only used for appeals within the ACAT or to the Supreme Court.
I am reinforced in my view by what French CJ, Gummow and Bell JJ said in Osland v Secretary to the Department of Justice (2010) 84 ALJR 528, when considering provisions of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), which provided, in s 148(1), for an “appeal, on a question of law” to the Supreme Court of Victoria from orders of the Tribunal. Their Honours said (at 535; [18]):
Section 148 confers ‘judicial power to examine for legal error what has been done in an administrative tribunal’. Despite the description of proceedings under the section as an ‘appeal’, it confers original not appellate jurisdiction; the proceedings are ‘in the nature of judicial review’. (Footnotes omitted)
Accordingly, there is, in my view, no substance in the challenge to the jurisdiction of the court which was made on the ground that there can be no appeal within the ACAT and so nothing to be removed to this Court. The Court has jurisdiction and the appeal is properly before it.
“Make any order it considers appropriate”(ii)
At the heart of this appeal is the meaning and extent of the power given to the ACAT under s 416(3) to “make any order it considers appropriate”.
This formula seems to me to be a result of lazy drafting instructions, where the policy is not clear and no thought has been given to the precise parameters of the power to be given to the court or tribunal. Regrettably, it is an approach that has a long history, though, so far as I can see, not a significant body of judicial consideration. I have commented on it in the context of a similar provision in s 318(2) of the Crimes Act 1900 (ACT), in R v Fisher (No 2) [2011] ACTSC 100 (at [55] to [60]).
In the case of the Legal Profession Act, the Explanatory Statement is decidedly unhelpful. As in so many cases, it merely repeats, with some paraphrase, what the section actually says. This cannot be said to be an explanation; it should not be dignified by being included in what then becomes quite misleadingly called an Explanatory Statement. If the section is self-explanatory, it would be cheaper (including saving paper and so, we are told, the environment) simply to say so rather than merely repeating (even with some paraphrase) the words of the section, thus necessarily implying that it is self-explanatory.
An impressive example of an Explanatory Statement that is helpful and genuinely explanatory is that for the Legislation Act 2001 (ACT).
With so many Explanatory Statements that are unhelpful in this way, it is no wonder that the Legislation Act 2001 (ACT), has introduced the device of the example (see s 132) which does some of what a good Explanatory Statement should do, though, as an example, it cannot always give the courts the more contextual and policy based explanation required to address ambiguity. Regrettably, there is no example to section 416 or sub-section (3) so no help is provided in that way.
To some extent, too, the increasing use of an objects or purposes clause (such as s 384 of the Legal Profession Act), can fulfil some of the lacunae that many Explanatory Statements leave.
At issue is the width of s 416(3) and, in particular, whether it is sufficiently wide to encompass an order for costs.
It is clear in the first place, however, that the power to award costs must be found in a statutory provision. It is clear from decisions of this jurisdiction that this is so. In Byrnes v Barry (2004) 150 A Crim R 471, French J (as his Honour then was) in the Court of Appeal quoted (at [52]) with approval the House of Lords in Garnett v Bradley (1878) 3 App Cas 944 (at 962, 953 and 958), that in the Common Law Courts of England, costs were “entirely and absolutely a creatures of statute”. This was followed very recently by Gray J in GJ v AS [2011] ACTSC 119.
In Queensland Fish Board, the court there held that the power may be found by necessary implication as well as by express power. If such a power is to be implied, it seems to me that, by analogy with the construction of contracts, it must be a power that is rather like the terms that courts are prepared to imply because they are necessary to give business efficacy to a contract. That is to say, the power “must be necessary to make the [ACAT] work and must be so obvious that it goes without saying”: Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226 (at 241).
It is probably inappropriate to try and define the precise parameters of the sub-section, though it may be necessary to find a principle which underpins the application of such a provision and which then permits an answer to the specific question.
I shall deal with the issue under the following four headings:
(a) the nature of the ACAT;
(b) the Legal Profession Act as a whole;
(c) section 416 of the Legal Profession Act; and
(d) the authorities.
(a) The nature of the ACAT
As a tribunal, the ACAT is part of the trend in Australia to establish tribunals to hold government authorities and those exercising statutory powers more accountable. Thus, as the NSW Administrative Decisions Tribunal said in Maylor (No 2) v Mid North Coast Area Health Service [2001] NSWADT 118 (at [22]),
Public interest considerations are very much part of the texture of all aspects of proceedings in this Tribunal, including applications for costs orders.
This is reinforced by the provisions of s 48 of the ACAT Act where the default and, perhaps, expected position is that parties will bear their own costs, a general principle recognised in relation to a similar provision in NSW legislation by the Court of Appeal in that State in AT v Commissioner of Police (NSW) [2010] NSWCA 131 (at [33]). I accept that this section is expressly excluded from proceedings under the Legal Profession Act, but it seems to me that it is relevant when considering the nature of the ACAT and whether a power to order costs is necessarily implied by the legislation.
It is to be accepted that a power to order costs will be more readily implied in superior courts. This was stated in Clyne v Wrigley [1980] 1 NSWLR 599 (at 601; [5] to [9]), where the court was construing a power in the Court of Criminal Appeal to make “such order ... as it thinks fit”. Moffitt P, (with whom Begg and Cantor JJ agreed) said in this case (at 601; [7]):
... courts should be slow to read down powers conferred on them in wide and general terms, so as to deprive themselves of a power to exercise a discretion to do that which is fit or just.
This position, however, is to be contrasted with the position of a tribunal. As Professor Dal Pont says in Law of Costs (at p 157; [6.10]):
The curial interpretation of the scope of tribunals’ costs jurisdiction has been more restrained again. For a tribunal to have jurisdiction to order costs, it must be clearly conferred by statute.
Moreover, it appears that courts will adopt a narrow interpretation of, or otherwise read down, even a broad discretion in a tribunal where its exercise is inconsistent with the purposes of the tribunal in question. In practice, though, the legislative trend is to prescribe those circumstances, if any, in which a tribunal may make a costs order rather than vest the tribunal with a general costs discretion. (Footnotes omitted; emphasis in the original).
In the decision of the Commonwealth Administrative Appeals Tribunal which Professor dal Pont cites, Re Verus Capital Ltd (as mgr of the Benwood Property Trust) and Australian Securities and Investments Commission (2001) 37 ACSR 430, Deputy President Handley said (at 442; [57]):
Another argument against the Tribunal awarding costs, is that it would be inappropriate for the Tribunal to award costs, unless this is explicitly provided for by the relevant legislation. Awarding costs has the potential to reduce informality in the Tribunal’s administrative proceedings and disadvantage parties who are not legally represented. As the Administrative Review Council noted in its Eleventh Annual Report (1986-87) at 80:
... it is inappropriate for the award of costs, which is an incident of civil proceedings before the Courts of law, to be applied in relation to administrative proceedings before the AAT.
To similar effect is what was said by the NSW Administrative Decisions Tribunal (Equal Opportunity Division) in Maylor (No 2) v Mid North Coast Area Health Service (at [21] to [25]):
21.In their attempts to make justice more accessible, governments throughout Australia over the last 25 years or so, have created a number of administrative tribunals. One of the features of what was known in the 1970s and 1980s as ‘the New Administrative Law’ was the cost regime.
22.To encourage a resort to law, and to make government authorities more accountable to the citizens of Australia and the various States and Territories, many if not most administrative tribunals established on the model of the Commonwealth Administrative Appeals Tribunal generally expect the parties to bear their own costs. This is particularly so where the respondent party is usually a government authority.
23.Public interest considerations are very much part of the texture of all aspects of proceedings in this Tribunal, including applications for costs orders ...
24.The public policy underlying such a divergence away from the time-honoured practice in courts is obvious. While a balance of interests has always to be struck, in these cases it is generally struck in favour of the citizen rather than the government authority. It is recognised, of course, that many complaints will ultimately not be substantiated or adequately established, the complainant bearing the onus of proof.
25.... The informality of procedures, and the removal of the disincentive of costs orders in the ordinary run of cases, are intended to introduce into the proceedings a measure of fairness and equality which is not generally to be found in traditional courts.
This is consistent with what I ascertain from the objects of the ACAT Act set out in s 6.
(b) The Legal Profession Act as a whole
As noted above, the Legal Profession Act expressly omits, for the purposes of proceedings in the ACAT, the limited costs regime established in s 48 of the ACAT Act. It was accepted by both parties that s 48 does not apply to these proceedings.
Instead, for disciplinary matters under Pt 4.7 of that Act, it enacts a particular regime in s 433. That regime is constrained and does not follow the approach to costs which is either the limited one in the ACAT Act or the wider discretionary approach of the more usual power given to courts. It requires that a practitioner found guilty of unsatisfactory professional conduct or professional misconduct pay costs (of the relevant professional council and the complainant) unless exceptional circumstances exist. It permits the ACAT in specific circumstances to make such an order even if it does not find that the practitioner is guilty of such conduct. It only permits the ACAT to require a council to pay the practitioners costs if not satisfied that the practitioner is guilty of such conduct and also, significantly, that special circumstances justify such an order.
Very significantly, it does not give power to order that a complainant pay the costs of a practitioner.
There appear to be no other express provisions about the costs of proceedings in the ACAT in the Legal Profession Act.
There are two other policy matters that are relevant.
The Legal Profession Act establishes in Pt 2.2 a level of monopoly in respect of legal practice by persons who are qualified, admitted and holders of appropriate practising certificates. Such a monopoly might be expected to be accompanied, as it is under the Act, by appropriate regulation, including discipline in the public interest.
That regulation would include a regime, as there is under the Act, for dealing with complaints by members of the public about legal practitioners and that, for this purpose, members of the public would include clients and former clients of such practitioners.
A factor that the legislature would be entitled to take into account in establishing such a regime would be the question of whether the access to such a regime would be unreasonably hampered, or the informality that may be desired for such a regime rendered ineffective, by imposing on a complainant the risk of costs should the complaint not be upheld.
If, as I find, these are reasonable issues which the legislature might need to decide, then I need to ascertain as best I can from the terms of the Act whether the legislature has so decided and what it has decided.
In this case it is relevant to consider s 6 of the Legal Profession Act which sets out the purposes of the Act and it provides:
The purposes of this Act are as follows:
(a)To provide for the regulation of legal practice in the ACT in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally;
(b)To facilitate the regulation of legal practice on a national basis across State and Territory borders.
This clearly places importance on the public interest in consideration of these issues. It is re-enforced by the objects of ch 4 found in s 384, especially paragraph (d).
Then s 433 does, as I have noted above, provide in the costs regime for disciplinary proceedings that there is no power to order that a complainant, whose costs in certain circumstances can be ordered to be paid by a legal practitioner, pay the costs of a legal practitioner.
It seems to me, that these combine to render it more likely than not that the Act does not envisage that a complainant would be the subject of an order to pay the costs of a legal practitioner.
The second policy matter is the structure of the relevant Part, that is Pt 4.5 and its interaction with the ACAT Act.
Clearly under Pt 4.5 of the Legal Profession Act, the relevant council, here the Respondent, is to conduct an administrative inquiry. It does not appear that it is in the nature of a curial inquiry. Under s 406, the council is to investigate the complaint. Under s 407, the council may appoint an investigator to assist it. The council may refer a complaint for assessment of costs by the Supreme Court. After it has finished the investigation, the Council may make one of three decisions under s 410, that is: dismiss the complaint, take “summary action” (under s 413) or apply to the ACAT under Pt 4.7 for disciplinary action.
The decision of the counsel is, then, as noted earlier, subject to “appeal” to the ACAT. This, it seems to me, is not an appeal in the sense one uses the term as between courts, but in the sense that administrative review as conducted in the Commonwealth sphere by the Administrative Appeals Tribunal. See my comments above (at [74] and [75]).
It is true that, so far as I could see from an inspection of the ACT Civil and Administrative Tribunal Legislation Amendment Act 2008 (ACT), by which most other Acts were amended to provide access to the ACAT for review of decisions, the term used in them is “application for review” rather than “appeal” but that may be because of the particular nature of the Legal Profession Act and the wish for national uniformity. I note, too, that most of the other Acts so amended refer to “Occupational Discipline” whereas the Legal Profession Act refers to “Disciplinary Action”. I do not regard this matter as particularly relevant.
In my view, the process under s 416 is a review of an administrative decision in the same way as under other similar legislation.
That then calls into play s 29 of the ACAT Act, which relevantly provides:
29 Parties to applications
(1)The parties to an application are the applicant and the respondent, unless this section or an authorising law otherwise provides.
(2)The parties to an application for occupational discipline are the entity bringing the application and the person to whom the application relates.
(3)The parties to an application for review of a decision are the applicant and the decision-maker.
(4)The party to an application for an advisory opinion is the applicant.
(5)The tribunal may, by written notice to the parties to an application, join a person as a new party to the application if –
(a)the person has an interest in the application; or
(b)for an appeal – the person was a party to the original decision.
(6)The tribunal must not join a person as a new applicant to an application if the person is not entitled to apply to the tribunal under the authorising law under which the application is made.
As is clear from the title to these proceedings and in the ACAT, the parties and the ACAT clearly proceeded as if this were a proceeding regulated by s 29(2) and not by s 29(3).
In that context, where the council is the other party, with public interest obligations, it is also consistent with policy that it should bear its own costs of such proceedings, as often would a government agency.
Thus, while the Legal Profession Act does not mandate that there should be no costs orders made under s 416, that position is certainly consistent with what can be discerned from the structure and content of the Act. It is inconsistent with a view that power to order costs in such proceedings is necessary to make the ACAT and its regime work and so obvious that there should be a costs power that it goes without saying.
(c) Section 416 itself
This section is set out above (at [25]) and does not need to be repeated here.
If the wide construction to s 416(3) contended for by the Legal Practitioner is accepted, namely that of the words “any order it considers appropriate”, then an order for which there is otherwise no express or implied jurisdiction for the ACAT to make may be made.
In particular, the orders set out in s 425(3) to (5) would already be within power.
Ordinarily, on appeal or review, the body entrusted with such proceedings would, absent statutory prescript, be able only to make the orders that the body from whom the review or appeal was taken was able to make. In this case, these are limited to those orders set out in s 413 of the Legal Profession Act.
Thus, the reference to s 425(3) to (5) makes sense if it is considered to be enlarging (hence the initial words “[w]ithout limiting subsection (3)” in s 416(4)) the powers of the ACAT. It is difficult to see why the powers need to be enlarged if they are already as wide as contended for by the Legal Practitioner. Taken at their face value, as the Legal Practitioner wishes, they are, without s 416(4), wide enough to encompass all the powers in s 425(3) to (5).
Had the initial words in s 416(4) been something like “for the avoidance of doubt”, then the position may have been different, but it seems to me that the current drafting leads me to the view that s 416(4) is intended to enlarge the powers under s 416(3), without, of course, limiting them to those specified in s 425(3) to (5).
In my view, the principle to apply then to the construction of s 416(3) is that it permits the ACAT to make any order that the ACAT otherwise has power to make. As a statutory tribunal, those powers must be found in the relevant statutes. Neither the Legal Profession Act nor the ACAT Act provide any statutory power, express or implied, to order costs in a case such as the one subject to this appeal.
(d) Case law
I have referred to some of the relevant jurisprudence above. In my view, neither Booker v Gill nor Queensland Fish Board assist the Legal Practitioner.
In relation to superior courts, it is clear that there is an implied power to make costs orders, unless statutorily excluded.
Even in such courts, however, the power to make an order for costs is not “at large” and there must be identified a specific source of power. As Spigelman CJ (with whom Mason P, McClellan CJ at CL and Hidden and Howie JJ agreed) said (at 12; [3] to [6]) in R v JS (No 2) (2007) 179 A Crim R 10:
The Court of Criminal Appeal is a statutory court which has such powers as are expressly conferred on it or are implied from the express conferral of jurisdiction upon, and grant of powers to, the Court. As I indicated in John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344; 148 A Crim R 522 at [28] it is usual to refer to a statutory court as having an implied jurisdiction. (See Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 623-634.) An alternative formulation is that it has ‘incidental statutory powers’. (Linprint Pty Ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 508 at 515B)
The respondent submitted that, subject only to s 17 of the Criminal Appeal Act 1912 (NSW), to which I will refer below, this Court’s power to award costs is ‘generally at large’. This submission should be rejected. It is necessary to identify an express or implied statutory power to make such an order.
At a time when the powers conferred on this Court were to be found only in the Criminal Appeal Act 1912, this Court held that it ‘has no powers except those conferred upon it by that statute’. (R v Burns (1920) 20 SR (NSW) 351 at 358.) Subsequently, other statutes have conferred powers on this Court. (See Director of Public Prosecutions (Cth) v Cassaniti (2006) [2006] NSWCCA 335; 204 FLR 152 at [12]-[13].) The Respondent has failed to identify any relevant statutory provision.
As part of its implied jurisdiction this Court has power to control abuse of its process and, as an incident of that power, may order a person who has abused that process to pay the other party’s costs, at least where s 17 of the Criminal Appeal Act does not apply.
In R v Mosely (1992) 28 NSWLR 735, the NSW Court of Criminal Appeal had to consider the extent of the power, if any, to make costs orders under s 6 of the District Court Act 1973 (NSW), which provided:
Where under this Act or the civil or criminal procedure rules the Court may make any order or give any direction or leave or do any other thing on terms, the Court may make the order or give the direction or leave or do the thing on such terms and conditions (if any) as the Court thinks fit.
A trial in the District Court had to be adjourned on the application of the prosecution without prior notice of the application. The adjournment was opposed but granted and the court, after some argument, held that it had power to make an order for costs and made one.
The Crown appealed the decision to grant a stay. At the hearing the Crown filed a Notice of Appeal against the original costs order.
The Court of Criminal Appeal held that, notwithstanding the width of s 6 and the fact that costs orders could be made in civil cases under other provisions, the section did not authorise orders for costs in criminal cases. In this, they relied on other provisions relevant to criminal proceedings.
Though perhaps of uncertain precedental value, I do note that in In Re Crown Employees (Division of Science Services – Department of Agriculture) Award [1960] AR(NSW) 567, Cook, McKeon and Beattie JJ (In Court Session) referred to s 30B(1) of the Industrial Arbitration Act 1940 (NSW), which provided, inter alia:
In any proceedings under this section the commission in court session may make such order, award, ruling or decision as to it seems fit in the circumstances of the case.
Their Honours expressly agreed with the submission of counsel that the provision “could not be regarded as authorising the commission to disregard limitations on its jurisdiction imposed by other sections of the Act.”
See also Re Hospital Employees Technical (State) Award (1992) 42 IR 1 (at 3).
In support of a more restrictive approach to such wide powers, the appellant referred to what French CJ, Gummow and Bell JJ said in Osland v Secretary to the Department of Justice where the Court was considering s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), which relevantly provided:
148. Appeals from the Tribunal
(1)A party to a proceeding may appeal, on a question of law, from an order of the Tribunal in the proceeding –
(a)to the Court of Appeal, if the Tribunal was constituted for the purpose of making the order by the President or a Vice President, whether with or without others; or
(b)to the Trial Division of the Supreme Court in any other case –
if the Court of Appeal or the Trial Division, as the case requires, gives leave to appeal.
...
(7)The Court of Appeal or the Trial Division, as the case requires, may make any of the following orders on an appeal –
(a)an order affirming, varying or setting aside the order of the Tribunal;
(b)an order that the Tribunal could have made in the proceeding;
(c)an order remitting the proceeding to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the court;
(d)any other order the court thinks appropriate.
Their Honours considered the width of s 148(7)(d) in the context of the limit on the power to appeal only on a question of law. Their Honours said (at 535-6; [19] to [20]):
[19]The jurisdiction conferred by s 148(1) is confined to appeals on questions of law. Section 148(7) does not enlarge that jurisdiction. It confers powers on the court in aid of its exercise. That feature of s 148 resembles s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the Commonwealth AAT Act), which defines the analogous jurisdiction of the Federal Court to hear appeals on questions of law against decisions of the Administrative Appeals Tribunal (AAT). Under s 44(4) of the Commonwealth AAT Act, the Federal Court, in determining an appeal, may ‘make such order as it thinks appropriate by reason of its decision’. But wide as that power may be, the Court ‘should not usurp the fact-finding function of the AAT’. Those observations turn upon the text of s 44. They do not depend upon the separation of judicial and executive powers, which limits the functions that can be conferred upon federal courts. They have application to the jurisdiction conferred upon the Court of Appeal by s 148 of the VCAT Act, which is, in concept and in terms, modelled on, although not identical to, s 44.
[20]The Court of Appeal, in the exercise of its jurisdiction under s 148 of the VCAT Act, may make substitutive orders where only one conclusion is open on the correct application of the law to the facts found by the Tribunal. Such a case arises when no other conclusion could reasonably be entertained. In that event, the court can make the order that the Tribunal should have made. The language of s 148(7) is also wide enough to allow the Court of Appeal to make substitutive orders in other circumstances. But its powers must, as with the equivalent powers of the Federal Court in relation to the AAT, be exercised having regard to the limited nature of the appeal. Absent such restraint, a question of law would open the door to an appeal by way of rehearing. Where there is a factual matter that has to be determined as a consequence of the appeal, it may be that it is able conveniently to be determined by the Court of Appeal upon uncontested evidence or primary facts already found by the Tribunal. When the outstanding issue involves the formation of an opinion which is, as in this case, based upon considerations of public interest, then it should in the ordinary case be remitted to the body established for the purpose of making that essentially factual, evaluative and ministerial judgment. (Footnotes omitted)
I do not consider that Smith v Champion (No 2) is contrary to any of these authorities. In that case, both the Court of Appeal and the Supreme Court had clear power to make an order for costs. The only question was whether the Court of Appeal should do so where the trial judge had made none and where, as he had died, he was unable to do so. That is quite a different situation from the case here and of no assistance in construing the limits of s 416(3) of the Legal Profession Act.
In my view, the weight of authority supports the view that the ACAT has, under s 416(3) of the ACAT Act, no power to make an order for costs.
(e) Conclusion
Having carefully considered these matters, in particular the authorities referred to above, I consider that when a statute permits a body to make “any orders it considers appropriate”, such a provision does not confer any jurisdiction on the body that it does not already possess either expressly or by such implication that the law may permit.
That is to say, such a provision gives the body the discretion to make any order that it otherwise has power to make and that whether it can make such an order must be determined by the jurisdiction or power otherwise given to the body by any legislation or other law.
Here, the relevant legislation is the Legal Profession Act and the ACAT Act and I can find no express or implied power in either to permit the ACAT to make the orders challenged by the Appellants.
Accordingly, I have come to the view that the ACAT has no power under s 416(3) of the Legal Profession Act to make an order for costs.
If there is power should the order have been made?(iii)
In the light of my conclusion of the question of whether the ACAT had power to make the costs order it made, I do not need to decide this issue.
In deference to the submissions made, however, I will express my views briefly.
Even were, contrary to my findings, the ACAT to have the power to make any order for costs on an appeal under s 416 of the Legal Profession Act, it seems to me that the terms and structure of both Acts, the Legal Profession Act and the ACAT Act, make it clear that the ordinary approach of adversarial litigation does not apply.
Thus, in my view, the ACAT erred when it considered that the notion that “costs follow the event” is a relevant consideration. Having regard to the nature of the tribunal and the proceedings as referred to above, it does not seem to me that such an approach is appropriate. Such an approach seems to me to be based on the approach of the respondent referred to by Gaudron and Gummow JJ in Oshlack v Richmond River Council (at 87; [37]), which their Honours, and the Court, rejected. Similarly, their Honours considered that the litigation in that case was concerned with public rather than private rights (at 91; [49]).
Clearly, proceedings in respect of complaints against lawyers has a strong public interest component, that would justify a different costs regime.
In addition, the ACAT referred to special circumstances about the hearing. It said, in B and BS Pty Ltd v The Council of the Law Society of the ACT and Anor (at [29]):
Notwithstanding that the appeal was the first of its type under the Legal Profession Act 2006, it raised some novel issues to the suppression of evidence of the name or other material which might identify the practitioner. These issues were of relevance not only to the practitioner but also in the future to solicitors who may become the subject of appeals. It was submitted that in the circumstances it was necessary and appropriate for the Society to have a limited role in the proceedings to the extent of supporting the practitioner’s submissions with regard to non-publication and to put its submissions on that issue. The Society played a limited role but in the circumstances it was necessary and appropriate that the Society play a part in the proceedings and as it turned out the Society went no further than was required. Accordingly, we are of the view that the Society is entitled to an order that the appellants pay its legal costs.
It seems to me that these sentiments would require that there be no order for costs of the proceedings. Indeed, it may have justified an order that the Respondent pay the Appellants’ costs.
In my view, the discretion of the ACAT miscarried. I would have, but for the orders I propose to make, set aside the orders and re-exercised my discretion.
Orders
In the event, the appeal must be upheld and the orders of the ACAT set aside and, in lieu, the applications for costs be dismissed.
In line with my decision, it would appear that I should make no order as to costs, but I will give the parties an opportunity to address me on that issue and any other consequential orders they consider should be made.
I certify that the preceding one hundred and fifty (150) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour,
Acting Chief Justice Refshauge.Associate:
Date: 24 August 2011
Counsel for the Appellants: Mr G C Lindsay SC and Mr C Ryan
Solicitor for the Appellants: Lander & Co
Counsel for the Respondent: Submitting appearance
Solicitor for the Respondent: Chamberlains
Counsel for the Party Joined: Mr M Bartfeld QC and Mr R Clynes
Solicitor for the Party Joined: Farrar Gesini & Dunn
Date of hearing: 24 February 2011
Date of judgment: 24 August 2011
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