Keung v Abbott [No 3]

[2019] SASCFC 46

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

KEUNG v ABBOTT & ANOR [NO 3]

[2019] SASCFC 46

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Hinton)

9 May 2019

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA

PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT

In Keung v Abbott (No 2) [2019] SASCFC 39 this Court dismissed the appellant’s application to reopen the appeal in the matter of Keung v Abbott [2017] SASCFC 58. Subsequently, the respondents applied for their costs of and occasioned by the appellant’s application.

Held, by the Court, the application is granted. The appellant is to pay the respondents’  costs of and occasioned by the application.

Legal Practitioners Act 1981 (SA) ss 82(2a)(b), 86(3); Supreme Court Civil Rules 2006 (SA) r 242, referred to.
Keung v Abbott [2017] SASCFC 58; Keung v Abbott (No 2) [2019] SASCFC 39; Legal Profession Conduct Commissioner v Fittock [2017] SASCFC 169, considered.

KEUNG v ABBOTT & ANOR [NO 3]
[2019] SASCFC 46

Full Court: Kourakis CJ, Kelly and Hinton JJ

THE COURT:

1. On 12 April 2019 this Court dismissed the appellant’s application to reopen the appeal in the matter of Keung v Abbott[1] and to recall and correct the orders made in disposing of that appeal.[2] The respondents have applied for their costs of and occasioned by the application.

   [1] [2017] SASCFC 58.

   [2]    Keung v Abbott (No 2) [2019] SASCFC 39.

2. In support of their application for costs the respondents submitted that the order sought is warranted, bearing in mind that the appellant was wholly unsuccessful.

3. The appellant contends that the appropriate order is that the parties bear their own costs. His written submissions on the question of costs (dated 29 April 2019) appear, in part, to re-argue the issue of whether this Court should have exercised afresh the discretion whether to grant him an extension of time in which to lay charges in the Legal Practitioners Disciplinary Tribunal. He contends that the appropriate order, accepting the correctness of Legal Profession Conduct Commissioner v Fittock (Fittock), was to remit the matter to the Tribunal to consider afresh the question of an extension of time with the input of lay members which would ensure impartiality.[3] Further, he contends that by not remitting the matter he has been denied procedural fairness in that, before the Tribunal, and with the benefit of the lay members, he might have enjoyed a different outcome. Further again, he contends that the Court was wrong to exercise the discretion refusing him an extension of time without having regard to the content of the CCK report. By so proceeding, he argues, suspicion arises that a fraud has been practised upon the Court. He contends:

   1.   The Appeal against the Tribunal’s Order and the consequential application to recall orders were necessitated by the procedural errors made by the Tribunal and not noted by the Court. The errors must be rectified by the Supreme Court;

   2.   The procedural errors were in fact identified by the Chief Justice in the hearing dated 14 August 2017 and had to be addressed to;

   3.   The appellant was entitled to ask for the matter to be remitted to the Tribunal properly constituted as the Tribunal should primarily be vested with the power to adjudicate on the appellant’s complaints;

   4.   Indeed, as pointed out by the Court, “the respondent accepted that the appeal had been decided on the basis of a significant misapprehension of law which could not be attributed to the appellant”. The appellant, acting in person could not reasonably be expected to raise the argument in relation to the proper constitution of the Tribunal. The respondent should have alerted the Tribunal and the Court as to the proper constitution of the Tribunal;

   5. Whilst the Court has the discretion to exercise the power contained in s 82(2a)(b) afresh, such discretion to correct a procedural error can only be exercised with the appeal brought by the appellant;

   6.   The Court should also take into consideration that the appellant had been aggrieved by the unprofessional conducts [sic] of the respondents and his complaints failed to reach a proper and fair resolution only because he was out of time in the absence of a properly constituted Tribunal and not because the complaints were without merits;

   7.   The Appellant has been self-represented in the Court all along, there was no need for the Respondents to hire a Queen’s Counsel in such a simple and straight-forward case of determination on misconduct. Therefore, it is not the responsibility of the Appellant to pay for Senior Counsel representing the Respondents;

   8.   The appeal and the application were necessary to rectify the procedural errors which affected the validity of the order of the Tribunal due to no fault of the appellant.

   [3] [2017] SASCFC 169.

4. The respondents accepted that Fittock was correctly decided. Consequently, the application was fought, in the main, on the basis that this Court should exercise the discretion contained in s 82(2a)(b) of the Legal Practitioners Act 1981 (SA) afresh, as permitted by s 86(3) of that Act. To the extent that the application travelled beyond the question of the exercise of the discretion, that occurred at the behest of the appellant and was in pursuit of arguments that, the competence of the appeal aside, were in the nature of appeal grounds and inappropriate for consideration on an application under r 242 of the Supreme Court Civil Rules 2006 (SA).

5. The respondents’ attitude to the appellant’s application, made known in advance of the hearing of the application, could not have left the appellant in any doubt that if he failed to persuade this Court that it could not or should not exercise the discretion afresh then, unless one of his other grounds succeeded, he risked an adverse outcome in this Court and an adverse costs order.

6. Put slightly differently, the respondents’ approach was such that if the respondents succeeded, the application would result in an outcome no different to the appeal. Accepting this, there was no imperative driving the application other than the hope that a different outcome would result. That was the risk that the appellant took including the attendant risk of an adverse costs order should he fail.

7. Nothing in the submissions made by the appellant causes us to think that this is a case where the ordinary approach that costs follow the event should not apply.

8. We attach no weight to the fact that the appellant was unrepresented. The appellant clearly understood the respondents’ position and capably responded to it.

9. And we do not accede to the suggestion that the application was not one fit for senior counsel. The appellant challenged the competence of the appeal and asserted that this Court had erred in its initial judgment in addition to taking issue with the question of whether it was appropriate for this Court to exercise the discretion afresh. The issues were of a kind fit for the engagement of senior counsel. Further, bearing in mind the importance of the judgment to the respondents, we do not think that they can be criticised for seeking the services of senior counsel to maintain the judgment.

10. Accordingly, we would order that the appellant pay the respondents’ costs of and occasioned by the application.