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:

1. 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:

1. 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.

1. 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, that there is an exception to this general rule in that solicitors are able to recover professional fees for acting on their own behalf.  In support of this contention he relied upon the decision of the High Court of Australia in Cachia v Hanes & Anor (1994) 179 CLR 403 in which Mason CJ, Brennan, Deane, Dawson & McHugh JJ said at 412 that:

Both the general principle and the exception have been accepted in this Court.  In Guss v. Veenhuizen [No.2] (1976) 136 CLR 47, Gibbs ACJ, Jacobs and Aickin JJ, after citing London Scottish Benefit Society v. Chorley and H. Tolputt and Co. Ltd. v. Mole [1911] KB 87 and 836, said of a solicitor who acts for himself (1976) 136 CLR at 51.):

"Those authorities establish that the litigant in person does not recover such costs in such circumstances in the capacity of a solicitor, but because, he happening to be a solicitor, his costs are able to be quantified by the Court and its officers.”

They went on to cite with approval the passages from the judgments of Brett MR and Bowen LJ in London Scottish Benefit Society v. Chorley which we have cited above.  It is, however, important to note that no general submission was advanced in Guss v. Veenhuizen [No.2] to the effect that a successful solicitor litigant who acts for himself is never entitled to recover "costs" in respect of his own time and services.  The argument in the case was about whether the solicitor litigant was precluded from recovering "costs" in respect of his own time and services in relation to an appeal to this Court by reason of the fact that he was not on this Court's Register of Practitioners.

If the explanations for allowing the costs of a solicitor acting for himself are unconvincing, the logical answer may be to abandon the exception in favour of the general principle rather than the other way round . . .  However, it is not necessary to go so far for the purposes of the present case.

1. The respondent accepts that an unrepresented litigant may recover out of pocket expenses and has drawn our attention to a decision of a Full Court of the Federal Court of Australia in Secretary, Department of Foreign Affairs & Trade v Boswell (1992) 108 ALR 77 accepting that this concept extended to some earnings actually lost by an employed litigant. The respondent also accepts that there is an exception for solicitors who act for themselves, and concedes that the decisions of the High Court in Guss and Cachia suggest that the rationale for the exception is that the costs of a solicitor are measurable.  It maintains, however, that professional costs should be awarded only when:

(a)      the solicitor is, or is a member of the principal on the record;

(b)      they are an indemnity for costs in respect to the opportunity costs lost, rather than direct costs actually incurred and, if this is established;

(c)      there is a proper method for quantifying same; and

(d)      the costs are limited to truly professional work done in relation to the case.

1. It does not seem to be disputed that the appellant is entitled to an order for costs following his successful appeal, albeit one not entitling him to recover professional fees, and we think it appropriate to make an order for costs in his favour.  In our opinion, the issues raised as to the extent of the costs payable pursuant to that order should be left for the Registrar to determine in the light of the authorities to which we have referred, any evidence that the appellant may wish to adduce as to his professional arrangements at the time of the appeal and the nature and extent of work shown to have been done in relation to the appeal.

   I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

   Associate:
   Date:  23 June 2006

Counsel for the appellant:  Self represented litigant

Counsel for the respondent:  Mr J Buxton

Solicitor for the respondent:  Dibbs Barker Gosling

Date of hearing:  Argued by written submissions

Date of judgment:  23 June 2006