Council of the Law Society of the Australian Capital Territory v Giles (No 2)

[2020] ACTSCFC 2

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
FULL COURT

Case Title:

Council of the Law Society of the Australian Capital Territory v Giles (No 2)

Citation:

[2020] ACTSCFC 2

DecisionDate:

20 May 2020

Before:

Murrell CJ, Burns and Loukas-Karlsson JJ

Decision:

The defendant is to pay the plaintiff’s costs.   

Catchwords:

PROCEDURE – COSTS

Cases Cited:

Council of the Law Society of the Australian Capital Territory v Giles [2020] ACTSCFC 1

Latoudis v Casey (1990) 170 CLR 534

Parties:

The Council of the Law Society of the Australian Capital Territory (Plaintiff)

Charles Filgate Giles (Defendant)

Representation:

McInnes Wilson (Plaintiff)

Self-represented (Defendant)

File Number(s):

SC 462 of 2019

THE COURT

1. The Australian Capital Territory Civil and Administrative Tribunal (ACAT) found that the defendant was guilty of professional misconduct and had recommended that his name be removed from the local roll. On 21 April 2020, this Court ordered that the defendant’s name be removed from the roll of legal practitioners: Council of the Law Society of the Australian Capital Territory v Giles [2020] ACTSCFC 1 (Giles).

1. ACAT’s finding of misconduct related to the dishonest misappropriation of $295,644.45 from the defendant’s trust account. In ACAT, the defendant conceded that the sum had been transferred and that the transfer had not been authorised, but he disputed that he had acted dishonestly; he said that his actions had been honest but mistaken. The defendant opposed the removal of his name from the roll, instead suggesting that he be suspended from practice and/or be entitled to a restricted practising certificate.

1. In this Court, the defendant opposed the application for removal of his name from the roll, approaching the issues in a manner that was very similar to that adopted in the ACAT proceedings. For most of the hearing, the defendant maintained that his conduct had been honest but mistaken. He submitted that the Court should not take the drastic step of removing his name from the roll.

1. As to the issue of dishonesty, in Giles at [131] we said:

During these proceedings, the practitioner both maintained that he had acquired new and profound insight and also maintained that his conduct was the result of an honest but mistaken belief about his entitlement under the costs agreements. It was only when he was well into oral submissions and was pressed by the bench that he conceded that he had known at the time of the misconduct that he was acting dishonestly. This extraordinarily belated acknowledgement of dishonesty can only reflect a fundamental lack of insight.

1. As to the appropriate outcome, we said at [132]:

Having regard to the gravity of the practitioner’s misconduct, the history of similar misconduct, his breach of past assurances, the dishonesty manifested in other respects connected with the complaint, and the practitioner’s fundamental lack of insight, we are satisfied that the practitioner suffers from a seemingly permanent character flaw such that it will never be possible to be confident about the practitioner dealing properly with trust funds. We are well satisfied that he is permanently unfit to practice.

1. The defendant was wholly unsuccessful in opposing the application.

1. The award of costs is in the discretion of the Court. Costs are not punitive but compensatory. They are awarded because it is just and reasonable that the party that has caused the other party to incur litigation costs should reimburse the latter for the liability incurred: Latoudis v Casey (1990) 170 CLR 534 at 567 (McHugh J).

1. The defendant has advanced no reason as to why he should not be required to reimburse the plaintiff for its costs.

Order

1. The defendant is to pay the plaintiff’s costs.

I certify that the preceding nine [9] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Chief Justice Murrell, Justice Burns and Justice Loukas-Karlsson. 

Associate:

Date: