DP v The Law Society of the Australian Capital Territory - [2006] ACTSC 61

DP v THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY [2006]
ACTSC 61 (23 June 2006)

LEGAL PRACTITIONERS – disciplinary proceedings - finding of unsatisfactory professional conduct - legal practitioner said to have misled court concerning right of audience - finding not supported on appeal – application for costs by unrepresented appellant.

Legal Practitioners Act 1970 (ACT), s 38

Cachia v Hanes & anor (1994) 179 CLR 403
Secretary, Department of Foreign Affairs and Trade v Boswell (1992) 108 ALR 77

ON APPEAL FROM THE PROFESSIONAL CONDUCT BOARD OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY

No SCA 36 of 2004

Judges: Crispin, Gray and Connolly JJ
Supreme Court of the ACT
Date: 23 June 2006

IN THE SUPREME COURT OF THE  )
  )  No SCA 36 of 2004
AUSTRALIAN CAPITAL TERRITORY  )

ON APPEAL FROM THE PROFESSIONAL CONDUCT BOARD OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:DP
Appellant

AND: THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY
Respondent

Judges:  Crispin, Gray and Connolly JJ
Date:  23 June 2006
Place:  Canberra

THE COURT ORDERS THAT:

the respondent pay the appellant’s costs of the appeal.

IN THE SUPREME COURT OF THE  )
  )  No SCA 36 of 2004
AUSTRALIAN CAPITAL TERRITORY  )

ON APPEAL FROM THE PROFESSIONAL CONDUCT BOARD OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:DP
Appellant

AND: THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY
ABN 60 181 327 029

Respondent

Judges:  Crispin, Gray and Connolly JJ
Date:  23 June 2006
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

On 2 December 2004 we heard an appeal by the appellant, who is a legal practitioner, against certain findings and orders of the Professional Conduct Board (“the Board”) constituted, pursuant to s 38 of the Legal Practitioners Act 1970 (ACT). At the conclusion of the argument we upheld the appeal, set aside the orders made by the Board and granted the appellant leave to file written submissions as to costs. We provided written reasons on 17 December 2004. It now appears that the appellant promptly sought an order for costs and provided written submissions pursuant to the leave we had granted him but that, for reasons that are not readily apparent, they were not drawn to our attention until earlier this week. In view of the delay that has already occurred we have considered his application as a matter of urgency.

It is common ground that costs are intended to compensate a successful litigant for expense incurred in conducting the proceedings and that, since unrepresented litigants will not have incurred legal fees, it would be inappropriate to make an order for costs that would effectively enable them to profit from the proceedings. On the other hand, whilst unrepresented litigants are not usually entitled to be paid for the time they have devoted to the proceedings, they may be entitled to an order for costs so that they may recover out of pocket expenses such as that incurred in photocopying. The appellant contends, however,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DP v The Law Society of the Australian Capital Territory

Details

AGLC: DP v The Law Society of the Australian Capital Territory [2006] ACTSC 61
Case: [2006] ACTSC 61
Decision Date

CaseChat Overview and Summary

The case of DP v The Law Society of the Australian Capital Territory involves an appeal by a legal practitioner, DP, against findings and orders made by the Professional Conduct Board of the Law Society of the Australian Capital Territory. DP had appealed against the Board's decision that found him guilty of misleading the court regarding his right of audience. DP sought costs of the appeal as he was unrepresented in the proceedings.

The legal issues the court had to decide involved the entitlement of an unrepresented appellant to costs after a successful appeal. Specifically, the court had to determine whether DP could recover professional fees for acting on his own behalf, as well as out-of-pocket expenses incurred during the appeal process. The court also needed to assess the proper method for quantifying such costs.

The Supreme Court of the ACT held that DP was entitled to an order for costs following his successful appeal, albeit one that did not entitle him to recover professional fees. The court reasoned that unrepresented litigants may recover out-of-pocket expenses but may not profit from the proceedings. However, the court found that there is an exception for solicitors who act for themselves, based on the rationale that the costs of a solicitor are measurable. The court decided to leave the issues raised as to the extent of the costs payable to be determined by the Registrar, taking into account the relevant authorities, any evidence DP may wish to present, and the nature and extent of work done in relation to the appeal.

In conclusion, the court ordered the respondent, the Law Society of the Australian Capital Territory, to pay DP's costs of the appeal.

Orders