Hilton v Legal Profession Admission Board (No 2)

[2016] NSWSC 1842

Supreme Court

New South Wales

Medium Neutral Citation:	Hilton v Legal Profession Admission Board (No 2) [2016] NSWSC 1842
Hearing dates:	16 December 2016
Date of orders:	16 December 2016
Decision date:	16 December 2016
Jurisdiction:	Common Law
Before:	Beech-Jones J
Decision:	(1)   The plaintiff is to pay the Law Society’s costs on and from 20 October 2016.  (2)   Upon the undertaking of the plaintiff to prosecute his appeal with due expedition, the costs order is stayed until the disposition of any appeal.
Catchwords:	COSTS – intervener who became contradictor – no question of principle
Legislation Cited:	Legal Profession Uniform Law
Cases Cited:	Hilton v Legal Profession Admission Board [2016] NSWSC 1617
Category:	Costs
Parties:	Howard Hilton (Plaintiff) Legal Profession Admission Board (Defendant) Law Society of New South Wales (Intervener)
Representation:	Counsel: DMJ Bennett QC; M Gaven (Plaintiff) G Johnson (Law Society of New South Wales)   Solicitors: & Legal (Plaintiff) Law Society of New South Wales (intervener)
File Number(s):	2016/135340

EX TEMPORE Judgment

1. HIS HONOUR: On 17 November 2016 I published reasons for judgment in these proceedings: Hilton v Legal Profession Admission Board [2016] NSWSC 1617. I dismissed the summons. Subsequent to that I made directions for the exchange of written submissions in relation to the issue of costs. In the end result, the contradictor, the Law Society of New South Wales, sought an order that Mr Hilton pay its costs of the proceedings. This was resisted on behalf of Mr Hilton who instead seeks an order that there be no order as to costs with the intention that each party bear their own costs.

2. The provisions governing the making of an order for costs are those set out in the Uniform Civil Procedure Rules as well as s 28(2) of the Legal Profession Uniform Law (NSW) which provides that, on an appeal under Division 3 of Part 2.2, the Supreme Court may make an order as to costs as it thinks fit, other than an order against the “designated local regulatory authority” in favour of an applicant where the appeal was not successful.

3. On my interpretation of that provision I do not think that it alters the application of the general principles governing the Court's discretion as to costs in this case including that, in the ordinary course, costs will follow the event.

4. There are a number of matters that bear upon the application of those principles including that general rule to this matter. The particular matter that is of most significance is that the basis upon which Mr Hilton's application was ultimately unsuccessful was in substance different to that which was the basis of the decision of the Legal Profession Admission Board (the “Board”) that he appealed from. The Board had effectively refused Mr Hilton's application on the basis that it was not satisfied that he was appropriately contrite and had any real insight into the damage caused by his offending to the legal profession in New South Wales.

5. The judgment refusing his appeal was based on broader reasons, namely, that the level of criminality involved in that offending was such that he did not satisfy the very heavy onus upon him to demonstrate that he was a fit and proper person as well as the effect that the readmission to practise Mr Hilton would have upon the maintenance of trust between members of the legal profession and by the public in the integrity of the legal profession. Those matters were not brought to the fore of these proceedings until Mr Hilton received the submissions of the Law Society which were dated 10 October 2016.

6. Subject to the matters that I will now address, and bearing in mind that the proceedings affect Mr Hilton's livelihood, I would ordinarily only make an order for costs from such time as Mr Hilton had received those submissions and had the opportunity to consider them. This would be so because, it is in the nature of adversarial litigation, that the parties have the opportunity to know what the case is against them and then make forensic choices as to whether to proceed or not. They then bear the costs consequences of those forensic choices.

7. Another matter that was raised concerned the Law Society’s status as an intervener. Mr Bennett QC contended that the position of an intervener is that they will not in the ordinary course obtain their costs. However, in circumstances where the Law Society was not just an intervener but the true contradictor, I think an order in its favour for costs would ordinarily be made. I think the position can easily be tested by asking what would have been the position had Mr Hilton succeeded. In that case, I would have thought an order for costs against the effective contradictor would have been inevitable.

8. Another matter raised concerned the manner in which the Law Society conducted the proceedings. It was submitted that the cross-examination of the plaintiff's testimonial witnesses effectively wasted additional costs. It was submitted that the effect of that cross-examination was to only confirm what those witnesses had stated and it did not advance the Law Society’s "case" at all. I do not agree.

9. The first thing to note is that, as a contradictor in a matter that had a public interest component, it was appropriate for the Law Society to take the position that it would cross-examine at least a sample of the plaintiff's testimonial witnesses. Second, one of the themes of the cross-examination which was replicated in the Law Society’s submissions, concerned whether Mr Hilton had any explanation for his commission of his offence. This was taken up with the witnesses, many of whom said they had discussed with Mr Hilton his offending. This aspect of the cross-examination ultimately supported the Law Society’s case. Otherwise, in the end, I think the hearing of the proceedings was conducted in an exemplary fashion by all Counsel.

10. In these circumstances I consider an order for costs is appropriate but it will be limited in the manner which I have stated. In particular, I will order that Mr Hilton pay the Law Society’s costs on and from 20 October 2016.

[Discussion]

11. On the undertaking of the plaintiff to prosecute his appeal with due expedition I will stay the costs order that I have just made until the disposition of any appeal.

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Decision last updated: 16 December 2016