Kowalski v Cole - [2016] SASCFC 142

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Permission to Appeal in Private)
KOWALSKI v COLE
[2016] SASCFC 142
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Blue)
22 December 2016
PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - DISCIPLINARY PROCEEDINGS - SOUTH AUSTRALIA - PROCEEDINGS IN TRIBUNALS
PROCEDURE - COSTS - APPEALS AS TO COSTS
PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT
Application for permission to appeal against costs order made by Legal Practitioners Disciplinary Tribunal.
The applicant brought two charges of unprofessional conduct against the respondents in the Legal Practitioner’s Disciplinary Tribunal. The Tribunal dismissed the charges after a hearing. The Tribunal ordered that the applicant pay the respondents' costs of each action.
The applicant seeks permission to appeal against the costs orders on the ground that the Tribunal erred in adopting as a starting point that costs should follow the event.
Held by the Court:
1. As a general principle, it is appropriate for the Tribunal to adopt a starting point that costs follow the event, provided that the Tribunal takes into account any relevant circumstances by reason of which such an order would not be appropriate (at [10]).
2. There were no special circumstances in the present case by reason of which an order that costs follow the event was not appropriate (at [10]).
3. Permission to appeal refused (at [12]).
Legal Practitioners Act 1981 (SA) s 31, s 41, s 85, referred to.
Mericka v Rathbone [2016] SASCFC 95, discussed.

KOWALSKI v COLE
[2016] SASCFC 142
Full Court: Kourakis CJ, Kelly and Blue JJ
THE COURT:

This is an application for permission to appeal against a costs order made by the Legal Practitioners Disciplinary Tribunal.
In 2007, Kazimir Kowalski laid in the Tribunal a charge of unprofessional conduct against Russell John Cole (no 14 of 2007) and a second charge of unprofessional conduct against Russell John Cole and William Andrew Sim (no 13 of 2008).
The first charge alleged that on 28 March 2007 Mr Cole made a false statement to Mr Ward SM by stating that Mr Kowalski had not made a request to RJ Cole & Partners under subsection 41(2) of the Legal Practitioners Act 1981 (SA) (the Act) for a detailed cost breakdown of RJ Cole & Partners’ 20 March 1992 account within six months of receiving RJ Cole & Partners’ account or indeed at all.
The second charge alleged that Messrs Cole and Sim either made a false statement in their particulars of claim in the Magistrates Court action heard by Mr Ward SM by stating that the $9,118.45 held in their trust account was not trust money (count 3) or deliberately breached subsection 31(6) of the Act by intermixing in their trust account $9,118 of their own funds with trust monies held for Mr Kowalski (counts 1 and 2).
On 5 August 2015, the Tribunal delivered reasons for dismissing both charges. In…

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 Kowalski v Cole

Details

AGLC: Kowalski v Cole [2016] SASCFC 142
Case: [2016] SASCFC 142
Decision Date: 22 December 2016

CaseChat Overview and Summary

Kowalski (the applicant) appealed to the Full Court of the Supreme Court of South Australia against a costs order made by a single judge of that court. The original proceedings concerned disciplinary proceedings brought by the Legal Profession Conduct Commissioner against Cole (the respondent), a legal practitioner. The Commissioner had made a finding of unsatisfactory professional conduct against Cole, but the disciplinary tribunal had dismissed the charges. The Commissioner then sought to appeal that dismissal to the Supreme Court, but the appeal was dismissed. The single judge then ordered the Commissioner to pay Cole's costs of the appeal.

The central legal issue before the Full Court was whether the single judge had erred in ordering the Legal Profession Conduct Commissioner to pay the costs of the legal practitioner, Cole, following the dismissal of the Commissioner's appeal against a disciplinary tribunal's decision. This involved considering the general rule that costs follow the event and any exceptions or special circumstances that might apply to disciplinary proceedings involving a statutory officer such as the Commissioner.

The Full Court held that the single judge had not erred in principle by ordering the Commissioner to pay Cole's costs. The Court affirmed the general rule that costs follow the event, and that there was no inherent reason why a statutory officer, when unsuccessful in an appeal, should be immune from an adverse costs order. The Court noted that while the Commissioner acts in the public interest, this does not automatically displace the ordinary costs rule, particularly when the Commissioner's appeal is unsuccessful. The Court found no special circumstances that would justify departing from the general rule.

Consequently, the Full Court dismissed the applicant's appeal and affirmed the costs order made by the single judge.

Orders