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:

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.
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.
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…

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 Keung v Abbott [No 3]

Details

AGLC: Keung v Abbott [No 3] [2019] SASCFC 46
Case: [2019] SASCFC 46
Decision Date: 9 May 2019

CaseChat Overview and Summary

The appeal concerned an application for indemnity costs in the South Australian Supreme Court, brought by the respondent, Mr. Abbott, against the appellant, Mr. Keung. The dispute arose from prior litigation between the parties, where Mr. Keung had been unsuccessful. Mr. Abbott sought indemnity costs on the basis that Mr. Keung's conduct during the proceedings had been unreasonable, warranting a departure from the usual order that costs follow the event.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether Mr. Keung's conduct justified an award of indemnity costs in favour of Mr. Abbott. This required the court to consider the principles governing the award of indemnity costs, particularly in circumstances where a party's conduct is alleged to be vexatious, meritless, or otherwise unreasonable, thereby causing the other party to incur costs that would not otherwise have been necessary.

The Full Court applied the established principles for awarding indemnity costs, which require a higher threshold than ordinary costs. The court found that Mr. Keung's conduct, including his pursuit of a hopeless appeal and his failure to engage constructively with settlement offers, demonstrated an unreasonable approach to the litigation. This conduct was deemed to have caused Mr. Abbott to incur costs beyond those that would ordinarily follow the event, justifying the departure from the general rule.

Consequently, the Full Court ordered that Mr. Abbott be awarded indemnity costs of the appeal.

Orders