B and B S PTY LTD & COUNCIL of the LAW SOCIETY of the ACT & the LEGAL PRACTITIONER (Legal Professions)
[2010] ACAT 43
•30 July 2010
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
B and B S PTY LTD v THE COUNCIL OF THE LAW SOCIETY OF THE ACT and THE LEGAL PRACTITIONER
(Legal Professions) (2010) ACAT 43 (S2)
30 July 2010
LP 3 of 2008
Catchwords: Legal Profession – appeal – costs
Legislation: Legal Profession Act 2006 (ACT), s 394, s 412, s 416, s 419, s 423, s 433, Chapter 4, Part 4.5, Part 4.7
ACT Civil and Administrative Tribunal (Transitional Provisions) Regulations 2009 (ACT), reg 32,
CASE LAW: Brooker v Gill (1899) 15 W.N. (NSW) 158,
Queensland Fish Board v Bunney;
Ex parteQueensland Fish Board [1979] Qd R 301
Wayne James Smith v Kaye Louise Champion (No. 2) [2009] ACTCA 15 (19 October 2009)
Tribunal: The Hon J F Gallop, QC, Presiding Member
Mr G Lunney SC, Senior Member
Ms T McDonald, Senior Member
Date of Orders: 30 July 2010
Date of Reasons for Decision: 30 July 2010
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) LP 3 of 2008
BETWEEN:B
First Appellant
AND:B S PTY LTD
Second Appellant
AND:THE COUNCIL OF THE LAW SOCIETY OF THE ACT
Respondent
AND:THE LEGAL PRACTITIONER
Party Joined
TRIBUNAL: The Hon J F Gallop, QC, Presiding Member
Mr G Lunney SC, Senior Member
Ms T McDonald, Senior Member
DATE: 30 July 2010
ORDER
THE TRIBUNAL ORDERS THAT:
The appellants jointly and severally pay the practitioner’s and the Law Society’s costs as agreed or as taxed at the ACT Supreme Court Scale by a taxing officer appointed by the Registrar of the Tribunal, such costs to include costs thrown away by reason of the adjournment on 26 March 2010;
Until further order, the names of the appellants and the legal practitioner be suppressed; and
All parties have liberty to apply in relation to the implementation of these orders.
……………………………………………………….
The Hon J F Gallop, QC, Presiding Member
REASONS FOR DECISION
On 8 January 2010, the Tribunal dismissed the appeal of the first and second appellants and reserved issues of costs. The further hearing of the matter was adjourned to 26 March 2010. On that date, the further hearing was adjourned to 28 May 2010 on the application of the appellants
As a result of the decision of the Tribunal there are two questions which need to be resolved, namely:
(1) whether costs should be awarded against the appellants; and
(2) whether non-publication of the legal practitioner’s name and the names of the appellants should be ordered.
The appellants contend that there is no power in the Tribunal to make any order for costs. We turn now to consider that objection to the Tribunal making any order in respect of costs.
As we said in part 3 of our Reasons for Decision, the original complaint by the two appellants was made in a letter of 23 October 2007 to the Law Society of the Australian Capital Territory, (the Law Society). The letter was written by T A Williams, Solicitor and Barrister of Level 13, 99 Elizabeth Street, Sydney NSW. The complaint was made under s 394 of the Legal Profession Act 2006 (ACT). There was a further letter of 6 November 2007 which corrected two factual errors in the first letter.
As stated above, the Tribunal’s decision was given on the 8 January 2010. The appeal was lodged by letter dated 26 June 2008 to the Legal Practitioners Disciplinary Tribunal. By letter to the practitioner dated 2 July 2008 the practitioner was notified that the Tribunal was treating the letter as a notice of appeal.
We turn to the statutory basis upon which it is submitted that this Tribunal has the power to make an order for costs. Regulation 32 (2) of the ACT Civil and Administrative Tribunal (Transitional Provisions) Regulations 2009 says:
32 Appeal to legal practitioners disciplinary tribunal—no hearing
(1)This section applies if, before the commencement day—
(a)an appeal was made to the legal practitioners disciplinary tribunal under the Legal Profession Act 2006; and
(b)the tribunal had not begun hearing the appeal.
(2)The appeal is taken to be an appeal to the ACAT under the Legal Profession Act 2006.
(3)An order made by the legal practitioners disciplinary tribunal in relation to the appeal is taken on and after the commencement day to be an order of the ACAT.
The Legal Practitioners Disciplinary Tribunal had not commenced to hear the appeal when it ceased to exist on 1 February 2009. Therefore, the appeal is covered by reg 32 as set out above. Because of reg 32(2), the appeal is an appeal to the ACAT under the Legal Profession Act.
The proceedings were instituted by the appellants pursuant to Chapter 4 Part 4.5 of the Legal Profession Act. That Part is entitled “Decision of Council”. The section entitling the appellants to bring an appeal is s 416. Section 416 gives the appellants standing to appeal the decision of the Council of the ACT Law Society dismissing their complaint under s 412. Section 416 is the only section of the Legal Profession Act which mentions appeals. There is no other provision in the Act enabling a complainant to bring proceedings before the ACAT.
It is important to note that the appeal is against the decision of the Council of the Law Society. The appeal is not brought under Part 4.7 of the Act which deals with “disciplinary action”. This was not disciplinary action under Part 4.7. This was an appeal against the decision of the Council of the Law Society brought under Part 4.5. The Council was the respondent to the appeal and the practitioner was joined by order of the former Tribunal.
Part 4.7 deals comprehensively with the procedure which is followed when the Law Society makes a complaint under s 419. In that circumstance, under s 423, the parties to an application to ACAT for an order in relation to an Australian legal practitioner arising from a complaint are the practitioner and the relevant Council (that is, the Law Society). There is no mention of an appellant under s 416. This is because s 423 is part of Part 4.7 which is entitled “Disciplinary Action” and deals with applications to the ACAT by the Law Society.
Section 416 is the only section applicable to appeals. Section 416(3) says:
The ACAT may make any order it considers appropriate on the appeal.
It was submitted on behalf of the practitioner and the Council of the Law Society that s 416(3) empowers ACAT to make orders for costs on the appeal. The breadth of s 416(3) is emphasized by s 416(4) which says:
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).
The only specific mention of costs orders in Chapter 4 of the Legal Profession Act is in s 433. Section 433 of the Act falls within Part 4.7 which is entitled “Disciplinary Action”.
A reading of s 433 makes it plain that the section deals with the issue of the costs of a complaint brought by the Law Society against a practitioner and not the costs on appeal under s 416. Section 433 empowers the Tribunal to order the legal practitioner to pay the costs of the Law Society and of the complainant. It also empowers the Tribunal to order that the Law Society pay costs.
Had the legislature intended that the provisions of s 433 applied to appeals under s 416, it would have included in s 416 a subsection equivalent to s 416(4) stating that s 433 applied. It did not. It included s 416(4) to make clear that in relation to appeals, ACAT has the same disciplinary powers as it has in relation to disciplinary proceedings, that is, the penalties on an appeal can be the same as in disciplinary proceedings. The absence of a section importing the costs provisions of s 433 into Part 4.5 indicates that s 433 does not apply to appeals and s 416(3) has the meaning contended for above, namely that in considering what orders to make, ACAT can make any orders it considers appropriate including orders for costs.
We conclude that the relevant statutory provision is s 416(3). There is no other statutory provision that relates to the costs of an appeal. We note that in written submissions the appellants asked for costs against the practitioner. Such a submission presupposes a power to do so under s 416(3). There is no other provision that relates to costs of an appeal. The submissions went so far as to urge that the Tribunal order the practitioner to pay the appellants’ costs, whether or not misconduct was found.
Two cases are relied upon in opposition to the submissions made on behalf of the Legal Practitioner, even though the appellants’ submissions refer to “numerous judicial findings”.
The first case is Brooker v Gill (1899) 15 W.N. (NSW) 158, a case dealing with s 23 of the Partnership Act (NSW) as it stood in 1899. That section provided that:
(I) After the commencement of this Act a writ of execution shall not issue against any partnership property except on a judgment against the firm.
(II) The Supreme Court or a Judge thereof, may, on the application by summons of any judgment creditor of a partner, make an order charging that partner’s interest in the partnership property and profits with payment of the amount of the judgment debt and interest thereon and may by the same or a subsequent order appoint a receiver of that partner’s share of profits (whether already declared or accruing), and of any other money which may be coming to him in respect of the partnership, and direct all accounts and inquiries, and give all other orders and directions which might have been directed or given if the charge had been made in favour of the judgment creditor by the partner, or which the circumstances of the case may require.
(III) The other partner or partners shall be at liberty at any time to redeem the interest charged, or in the case of a sale being directed to purchase the same.
In a commendably short judgment the Full Court held that it did not have the power to order costs either generally or pursuant to s 23.
It is clear that reliance on the words “or which the circumstances of the case may require” was not able to found a jurisdiction to order costs. The terms of the section make the decision clearly distinguishable from the current case. The general words at the end were (and must be) read as being limited by the subject matter of the balance of the sub-section and additional to the type of power granted within it, that is, the power which is granted is a power to take accounts and appoint a receiver of a partner’s share of profits and of any money which may be coming to the partner in respect of partnership. The jurisdiction is directed at providing the machinery for the making of orders to facilitate the collection of money due to a judgment creditor of a partner – it is not a general jurisdiction to make any order which may be necessary to dispose of the proceedings.
The point is better illustrated by the second and more modern decision relied upon by the appellants – Queensland Fish Boardv Bunney; Ex parteQueensland Fish Board [1979] Qd R 301. The Full Court of the Supreme Court of Queensland was there dealing with a section of the Queensland Fish Supply Management Act 1972-1976 which deals with how the proceeds of sale of confiscated fish are to be dealt with. The Act empowers an application to a Magistrates Court for an order to either pay the proceeds into a designated fund, pay the proceeds to any persons who may be entitled to them or make any other order which the court considers just.
Again, the broad words “any other order” must be limited by the subject matter of the section, in this case, how to deal with the proceeds of sale of confiscated property. Therefore, the court would have been entitled to make a payment in favour of an employee of the owner of the fish who lost a commission. However, not unusually, the sub-section was held not to give the court jurisdiction to make a costs order in the proceedings.
Connolly J (with whom Wanstall CJ and Lucas J agreed) observed at p 303 of the Queensland Fish Board case as follows:
Some of the older decisions suggest that the power to award costs must be conferred by express terms but the better view would seem to be that the power can be conferred expressly or by necessary implication.
(Citations omitted)
We were referred to other cases where the power to make any order it considers appropriate has been held to authorise a court to make an order for costs. Such a case is Wayne James Smith v Kaye Louise Champion (No. 2) [2009] ACTCA 15 (19 October 2009).
We conclude that s 416 of the Legal Profession Act 2006 must be construed as conferring jurisdiction upon ACAT to make an order for costs in an appeal under that section.
We turn to the submission on behalf of the practitioner that the appellants should be ordered to pay the practitioner’s costs of the appeal. The appellants, having failed in their complaint to the Council of the Law Society, brought an appeal against that decision before this Tribunal. They have failed. On general principles applying to most forms of litigation, the unsuccessful party should be required to meet the costs of the successful party. Moreover, the appellants, having been unsuccessful at first instance (namely in the complaint to the Law Society), chose to challenge that decision and once again have been unsuccessful. The practitioner cannot seek that the appellants pay his costs of the complaint to the Law Society. However, the appellants having failed in their complaint to the Law Society, and having decided notwithstanding that failure to pursue the matter by appealing to this Tribunal, there is much force in the submission that they should not be able to do so with impunity as to the costs consequences. The notion that costs follow the event is a cornerstone of legal proceedings.
The provision in s 416(3) is for the ACAT to make any order it considers appropriate on the appeal. In all the circumstances we can see no grounds for adopting other than a pragmatic exercise of the costs discretion. The appellants did not argue otherwise, contending only that the Tribunal lacked jurisdiction to make a costs order.
The practitioner also applied for an order for costs reserved on 26 March 2010 when the appellants applied for, and were granted, an adjournment on very late notice. The adjournment was an indulgence to a litigant in person who should have been ready to proceed on the adjourned date. The practitioner was ready to proceed, having incurred costs with Senior Counsel and Junior Counsel attending. Ordinary fairness justifies an order that the costs thrown away by reason of the adjournment be paid by the appellants.
The Law Society has also applied for an order for costs against the appellants. The Society was originally the only respondent to the appeal and later the practitioner was joined and was the true respondent on the hearing of the proceedings.
Notwithstanding that the appeal was the first of its type under the Legal Profession Act2006, 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.
The practitioner sought orders in respect of his costs in submissions which, in our view, go too far and encroach upon the assessment of his costs which might more appropriately be done on a taxation of the practitioner’s costs. We conclude that the practitioner is entitled to an order that the appellants jointly and severally pay the practitioner’s costs of and incidental to the appeal, such costs to be agreed, or taxed as per the ACT Supreme Court Scale. We are of the opinion that the Society is entitled to an order in the same terms. It is not appropriate for this Tribunal to identify matters to be taken into account on a taxation of costs such as the preparation of submissions, settling by both counsel and the engagement of both Senior and Junior Counsel.
With regard to the non-publication of the names of the parties, the President of the Tribunal made an order on 28 August 2009 that “until further order, the party joined is to be referred to as ‘the legal practitioner’”. It is not necessary in the circumstances to make any further order in relation to the practitioner because the existing order will, by agreement, endure until further order.
The appellants applied for a similar order and such an order was not opposed by the practitioner or the Law Society. Accordingly, it is appropriate that a similar order be made by consent.
Accordingly, the orders we make are as follows:
(1) that the appellants jointly and severally pay the practitioner’s and the Law Society’s costs as agreed or as taxed at the ACT Supreme Court Scale by a taxing officer appointed by the Registrar of the Tribunal such costs to include costs thrown away by reason of the adjournment on 26 March 2010;
(2) that until further order, the names of the appellants and the legal practitioner be suppressed; and
(3) that all parties have liberty to apply in relation to the implementation of these orders.
……………………………………………………….
The Hon J F Gallop, QC, Presiding Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO: LP 3 of 2008
APPLICANT: B AND B S PTY LTD
RESPONDENT: THE COUNCIL OF THE LAW SOCIETY
PARTY JOINED: THE LEGAL PRACTITIONER
COUNSEL APPEARING: APPLICANT:
RESPONDENT:
PARTY JOINED:
SOLICITORS: APPLICANT:
RESPONDENT:
PARTY JOINED:
OTHER: APPLICANT:
RESPONDENT:
PARTY JOINED:
TRIBUNAL MEMBER/S: The Hon J F Gallop, QC, Presiding Member
Mr G Lunney SC, Senior Member
Ms T McDonald, Senior Member
DATE/S OF HEARING: 28 May 2010 PLACE: CANBERRA
DATE/S OF DECISION: 30 July 2010 PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
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