Legal Practitioner ‘S' (Steven Gavagna) v Council of the Law Society of the Act - [2018] ACAT 12

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

LEGAL PRACTITIONER ‘S’ (Steven Gavagna) v COUNCIL OF THE LAW SOCIETY OF THE ACT (Occupational Discipline) [2018] ACAT 12

AA 59/2016 (OR 40/2015)
Catchwords: OCCUPATIONAL DISCIPLINE – legal practitioner – costs orders – section 433 Legal Profession Act 2006 – whether there are exceptional circumstances – whether section 433 applies to costs of appeal proceedings in the ACAT– meaning of ‘under’ – the ordinary or legal meaning of the phrase ‘proceedings under this Act’ in section 434
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 8, 48, 79, 82, 83
Family Law Act 1976 s 117
Legal Profession Act 2006 ss 413, 433, 434
Legislation Act 2001 s Dictionary

Cases cited:A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253
Andara Homes Pty Limited v Nicholas Palm and Ling Jiang [2014] ACTSC 141
CIC Australia Ltd v ACT Planning and Land Authority Ors [2013] ACTSC 96
Council of The Law Society of The ACT v Legal Practitioner RN [2017] ACAT 23
Dickson & Dickson [1999] FamCA 768
Energy Resources of Aust Ltd v Commissioner of Taxation [2003] FCA 26
Legal Practitioner v Council of the Law Society of the ACT (No 3) [2015] ACTSC 90
The Legal Practitioner v Council of the Law Society of the ACT [2011] ACAT 77
Legal Services Commissioner v Reeve (No 2) [2016] QCAT 486
In the Marriage of Dixon [No2] [1999] 151 FLR 344
The Appellants v Council of the Law Society of the ACT & Anor (2011) 252 FLR 209

Tribunal: Presidential Member M-T Daniel
Senior Member B Meagher SC

Date of Orders: 12 February 2018
Date of Reasons for Decision: 12 February 2018

AUSTRALIAN CAPITAL TERRITORY )

CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 59/2016 (OR 40/2015)
BETWEEN:
LEGAL PRACTITIONER ‘S’
Appellant

AND:
COUNCIL OF THE LAW SOCIETY OF THE ACT
Respondent

APPEAL TRIBUNAL: Presidential Member M-T Daniel
Senior Member B Meagher SC

DATE:12 February 2018

ORDER

The Tribunal orders that:

Order 5 of the decision of the Tribunal made on 9 November 2016 in matter OR 40/2015 is amended to add after the word “application” the words “excluding the costs associated with the prosecution of ground six of the application”.
There be no order for costs in respect of the appeal.

………………………………..
Presidential Member M-T Daniel
Delivered for and on behalf of the Tribunal

REASONS FOR DECISION

Background

On 7 August 2017 orders were made in this matter setting aside a finding of professional misconduct and replacing it with a finding of unsatisfactory professional conduct. Leave was given to make written submissions about the costs of the appeal and the costs order made by the Tribunal appealed from (the costs order). Written submissions have now been filed by the parties.[1]
[1] This decision was previously anonymised and cited as Legal Practitioner ‘S’ v Council of the Law Society [2018] ACAT 12 pursuant to section 423A of the Legal Profession Act 2006. As the appeal period has ended, the practitioner has now been identified in the citation of this decision. The reasons for decision otherwise remain unchanged from the date of publication.
The costs order made in the Tribunal appealed from was:
5. The practitioner is to pay the Council’s costs of this application dated 20 October on a party/party basis at the scale applicable to matters in the Supreme Court in an amount to be agreed, or failing agreement to be determined by the Tribunal.
As has been pointed out by the Council in its further written submissions this is a slip and, in accordance with the written reasons of the original Tribunal, the costs order should read:
5. The practitioner is to pay the Council’s costs of this application dated 20 October 2015, excluding the costs associated with the prosecution of ground six of the application, on a party/party basis at the scale applicable to matters in the Supreme Court in an amount to be agreed, or failing agreement to be determined by the Tribunal.[2] (our highlighting)
[2] See transcript of proceedings 9 November 2016 page 31 (Appeal Book (AB) 538)
The practitioner submits that the costs order should be capped at $25,000 or some other figure as the Tribunal thinks appropriate. He also seeks an order that Council pay him the filing fee and the hearing fee for the appeal. Whilst not stated expressly he must be taken to be submitting that the Council should not have its costs of the appeal.
The Council submitted that, subject to correction under the slip rule, the costs order should remain and that the practitioner should pay 50% of the Council’s costs of the appeal.[3]

The legislation applying to costs of the original, and appeal, proceedings

[3] The correction has been explained above. The Council said there was no need for the Appeal Tribunal to interfere as it could be done by the Tribunal appealed from and was understood by the parties to apply and may not need to be formally amended. We think it better to formally amend it

Section 48 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) sets out the generic approach to costs of proceedings in the Tribunal. That approach is that parties to proceedings will bear their own costs, except where the Tribunal orders otherwise or the ACAT Act otherwise provides. There is no general discretionary power for the Tribunal to award costs[4], but there is a power limited to the circumstances or matters set out in subsection 48(2).
[4] CIC Australia Ltd v ACT Planning and Land Authority Ors [2013] ACTSC 96
However, for matters brought under the Legal Profession Act 2006 (LP Act) section 434 of the LP Act excludes the application of section 48 of the ACAT Act. It provides:
434 Application of ACT Civil and Administrative Tribunal Act
The following provisions of the ACT Civil and Administrative Tribunal Act 2008 do not apply in relation to a proceeding under this Act:
(a)   section 8 (Rules of evidence);
(b)   section 48 (Costs of proceedings);
(c)   division 6.2 (Powers and decisions in applications for occupational discipline).
In place of section 48 of the ACAT Act, section 433 of the LP Act provides a specific costs regime whereby once a finding of unsatisfactory professional conduct or professional misconduct is made, the practitioner must be ordered to pay the Council’s costs unless the Tribunal is satisfied there are exceptional circumstances. Even where no such finding is made, the Tribunal is given a limited power to order the practitioner to pay costs. The Tribunal may only order the Council to pay the practitioner’s costs where there are no findings of professional misconduct or unsatisfactory professional conduct, and special circumstances justify the making of the orders. Clearly here there has been a relevant finding and so there is no power to order that the practitioner’s costs be paid by the Council under section 433 which provides as follows:
433   Costs orders by ACAT
(1)     If the ACAT finds an Australian legal practitioner guilty of unsatisfactory professional conduct or professional misconduct, the ACAT must order the practitioner to pay costs (including costs of the relevant council and the complainant), unless the ACAT is satisfied that exceptional circumstances exist.
(2)     Even if the ACAT does not find an Australian legal practitioner guilty of unsatisfactory professional conduct or professional misconduct, the ACAT may order the practitioner to pay costs (including costs of the relevant council and the complainant), if satisfied that—
(a)the only or main reason why the proceeding was started in the ACAT was a failure of the practitioner to cooperate with a council; or
(b)there is some other reason justifying the making of an order in the particular circumstances.
(3)     The ACAT may make orders requiring the relevant council for an Australian legal practitioner to pay costs, but may do so only if satisfied that the practitioner is not guilty of unsatisfactory professional conduct or professional misconduct and the ACAT considers that special circumstances justify the making of the orders.
(4)     The ACAT may make orders requiring an Australian legal practitioner in relation to whom a proceeding is pending before the ACAT to pay costs on a interlocutory or interim basis.
Note Alternatively, the ACAT might order that costs be payable from a particular fund (eg a statutory interest account) in these circumstances.
(5)     An order for costs—
(a)may be for a stated amount; or
(b)may be for an unstated amount but must state the basis on which the amount is to be decided.
(6)     An order for costs may state the terms on which costs must be paid.

The costs of the original proceedings

In the application for appeal, and amended grounds, no error was asserted in relation to the costs order. However, as the Appeal Tribunal found that the conduct should have been characterised as unsatisfactory professional conduct, it was open to the practitioner to query the basis on which the costs order had been made, particularly given the practitioner’s offer of settlement outlined below.
As noted by the Council, whether the conduct was characterised as professional misconduct or unsatisfactory professional conduct, either finding would trigger the operation of subsection 433(1) of the LP Act, requiring the Tribunal to order the practitioner to pay the Council’s costs unless satisfied there were exceptional circumstances. It was the finding of the original Tribunal that there were no exceptional circumstances which would warrant an order for costs not being made, which is critical.
We have considered the submissions made to the original Tribunal about costs. There was a significant submission based on the hardship suffered by the practitioner.[5] Most if not all the hardship now referred to by the practitioner had occurred by then.[6] These matters did not deter the Tribunal from making the order it did. The argument about whether these facts might be exceptional circumstances was not developed as clearly before the original Tribunal as it might have been. Apart from hardship the substantial delay in the disciplinary action and proceedings was also pointed to.
[5] See AB 302-303, 330 and 527ff
[6] The loss of his new partnership - described below - occurred on the making of the decision that there had been professional misconduct and the penalty hearing occurred some time later
The practitioner in his submissions to us did not identify any particular error in the original’s Tribunal’s determination as to whether exceptional circumstances existed or not, but rather made a general submission that exceptional circumstances did exist. He relied upon his affidavit dated 18 August 2017 in which the relevant circumstances were set out in detail.
The facts relied on[7] by the practitioner are as follows:
[7] omitting unnecessary information that would identify the practitioner
(a)The appellant commenced practice in March 2006 as a sole practitioner.
(b)The impugned invoice was for $6,493 dated 30 November 2009 – three and a half years later. Taking into account the $450 already charged, the total charge was $6,943. The invoice was issued by the appellant’s experienced employee who had an unrestricted practising certificate and whose conduct was determined by the ACT Law Society to have been unsatisfactory professional conduct.[8] The appellant’s office manager was also involved in the process of issuing the invoice.
[8] AB 181
(c)In April 2010, the client proffered the appellant a cheque for $3,000. Following assistance from another of his senior employees, the appellant misguidedly deposited that cheque and proceeded to assessment.
(d)The client complained and the ACT Law Society pursued the matter. On 2 December 2011, the appellant offered to engage in an alternative dispute resolution process. Discussions occurred on 19 December 2011.
(e)Attempts to resolve the matter were made on 20 December 2011 and again on 27 August 2012 and further attempts at mediation were made on 11 and 20 February 2013.
(f)The appellant resolved the matter with the complainant on 20 February 2013. The ACT Law Society’s complaint against the appellant included a charge that this settlement was a breach of his ethical duties as an attempt to hinder or interfere with the complaints process. This ground was dismissed below.
(g)By May 2014 the appellant had received professional counselling[9] about the matter and asked the ACT Law Society to have mercy on him.
(h)The same request was made on 1 October 2015[10] in which the appellant offered to accept a finding of unsatisfactory professional conduct.
(i)The application was made on 20 October 2015.
(j)The hearing was on 21 and 22 March 2016. The affidavit[11] of the appellant’s employee (who issued the impugned invoice) was dated four days before the hearing and was not provided to the appellant until the hearing itself.[12]
(k)On 2 April 2016, the appellant transferred his entire practice and 26 staff to another firm where he joined as a salaried partner. The transfer was for no consideration in the expectation of continuing to carry on his practice at that firm. The appellant assumed a debt of $106,000 to pay for staff entitlements.
(l)The Tribunal’s decision below was handed down on 4 July 2016. Four days later the appellant’s position as a partner of the new firm was terminated.
(m)The appellant handed in his practising certificate but was not granted a restricted one until 4 August 2016 and therefore could not work for almost four weeks.
(n)The appellant was treated for clinical depression by reason of the circumstances surrounding this matter.
(o)The appellant was represented by senior counsel at the hearing below (at considerable expense) and by experienced junior counsel on appeal.
(p)The appellant’s reputation has been severely damaged.
[9] We understand from what follows that this was psychological counselling
[10] AB 172
[11] AB 196
[12] We note the practitioner’s own affidavit was made on 15 March 2016; AB 212
It is submitted that the impugned invoice was for less than $7,000; the matter had been hanging over the practitioner’s head for seven years; the Appeal Tribunal had found the practitioner was not motivated by avarice; the whole episode has come at an enormous cost financial, reputational and emotional, and has virtually destroyed him.
It is also submitted that the practitioner had offered to accept the finding of unsatisfactory conduct and has been vindicated on appeal; he cannot rescue his lost partnership; he is picking himself up.[13] It was submitted that “in the exceptional circumstances of this case” to impose upon the practitioner the full costs of the hearing below would be harsh and unfair in the extreme.
[13] and has overcome his clinical depression; practitioner’s affidavit paragraph 17
The Council submitted that there were no exceptional circumstances; further the hardship matters now referenced had been considered by the original Tribunal and it would be wrong to allow this to be re-agitated now.
In terms of the appropriateness of the decision to institute disciplinary proceedings in the Tribunal, the Council submitted that once it had formed the view that the conduct may be professional misconduct it could not accept the offer of settlement made on 1 October 2015. This is because section 413 of the LP Act prevents the matter being dealt with summarily if the Council is satisfied that there is a reasonable likelihood that the practitioner will be found guilty of professional misconduct. This is correct. We have held that a finding of professional misconduct was open, although we did not make that finding. The offer of 1 October 2015 was not one that could be accepted in its terms. Of course, the Council could have agreed to such a finding by the Tribunal once an application had been made. However, there is no suggestion or evidence that either party did much to resolve the disciplinary application in such a manner after the application was made.
It seems to us that the Council had to make the disciplinary application. It may have been able to achieve what is now the situation thereafter by consent, but that is not clear. Section 433 of the LP Act is obviously designed to ensure the Council is not deterred from carrying out its onerous task by fear of a costs burden.
The Council also suggested the assertion that the experience has destroyed the practitioner was special pleading. We understand that to mean that whilst the behaviour found was wrong the practitioner should not be dealt with on that basis because of his hardship.
It is necessary to consider what ‘exceptional circumstances’ are. A decision as to whether there are exceptional circumstances or not is the application of facts to a legal criterion, not the exercise of a discretion. While we might be reluctant to interfere with the original Tribunal’s exercise of discretion, such considerations do not apply to this question. One critical difference is that the original Tribunal was assessing the situation on the basis that the conduct was professional misconduct and we are not.
In Council of The Law Society of The ACT V Legal Practitioner RN[14], the cases on this term were reviewed and a conclusion reached that there were exceptional circumstances allowing a reduction in the costs awarded. The factors in that case are not present here. A useful guide to the equivalent of section 433 is set out in Legal Services Commissioner v Reeve (No 2) [2016] QCAT 486 (Reeve) as follows:
[14] [2017] ACAT 23. This was decided in April 2017 but the decision has not been published yet
[17] As to orders with respect to costs in disciplinary proceedings, each case turns upon its own facts. There is no hard and fast rule.
[18] The Tribunal must make an order requiring the practitioner found to have engaged in prescribed conduct to pay costs unless the Tribunal is satisfied exceptional circumstances exist.^[17]
[19] The criterion adopted in section 462(1) is whether the practitioner has been found to have engaged in prescribed conduct.^[18]
[20] The words used in section 462(1) LPA allow little discretion to the Tribunal. The wording is not designed to confer or preserve any broad discretion over costs commonly found in statutory provisions conferring power to award costs.^[19]
[21] The fact that a practitioner succeeds on some charges but fails on others does not amount to exceptional circumstances.^[20]
[22] Whether “exceptional circumstances” exist depends upon the facts of each case.
[23] As to when “exceptional circumstances” might arise, Fryberg J^[21] referred to the passage from R v Kelly (Edward)^[22] where Lord Bingham of Cornhill CJ had to construe the term in a statutory context and said:
“we must construe ‘exceptional’ as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.”
[24] When the charge against the practitioner is dismissed, section 462(4) LPA provides that the Tribunal may make an order requiring the Commissioner to pay costs but may only do so if it satisfied that the practitioner has not engaged in prescribed conduct and in addition the Tribunal considers that special circumstances warrant the making of the order.
[25] The statutory provision assumes that ordinarily, notwithstanding the success of the respondent, the Commissioner will not be ordered to pay costs. This no doubt recognises with the public interest which motivates the Commissioner in approaching the Tribunal.^[23]
[26] In this context, “special circumstances” means just that. They must be special.^[24]
[27] The mere fact that a disciplinary application fails, or that a particular factual allegation is not sustained, cannot alone establish “special circumstances”. The general rule is that the practitioner found not guilty is not entitled to costs.^25]
[28] However, if a charge has no substantial prospects of success, and that conclusion reasonably ought to have been appreciated by the Commissioner, “special circumstances” may arise. (Footnotes omitted)

Here the impact on the practitioner was substantial and out of proportion to the nature of the complaint. It is such that it warrants the emotional language in the submissions of his counsel. The events surrounding his loss of partnership are indeed unfortunate. We are asked to infer that they are in part at least, if not completely, as a result of the decision of the Tribunal which we have found was incorrect in respect of the reliance on the duty of fidelity and the categorisation of the nature of the conduct. Nonetheless, the latter decision was open to it and the Council was required to initiate the proceedings.
The Council must bear some responsibility for the extreme delay in this matter, but it is not clear that it bears all of it. The proceedings have had an extremely negative impact on the practitioner economically by loss of employability and costs incurred in defending the matter. There has been a heavy emotional toll.
Impacts of the kind experienced by the practitioner are not unexpected consequences of disciplinary proceedings. Whilst it is arguable that the circumstances attending the decision of the Tribunal were exceptional, we are not convinced that they are in fact. Importantly, the Council was required to make the application. The finding that there was professional misconduct was open to the Tribunal. There was no evidence that once the proceedings commenced the Council was responsible for the matter not being resolved. Further, if it was open to the Tribunal to find professional misconduct, it was a proper course for the Council to prosecute that case. Until the evidence was heard the attitude that might be taken by the Tribunal to the credibility of the witnesses and in particular the practitioner was not known. This may be distinguished from the considerations that affect the appeal. The Council would have incurred costs even if it accepted a guilty plea to the lesser charge assuming it was then offered.
In respect of the submission, that the amount be capped, this may assume that we have concluded there were exceptional circumstances and we have not. It is arguable that the power to order a lump sum is not dependent on this finding but the sum suggested is likely to be a very small part of the actual costs. There is no adequate material that enables us to assess such a sum in any principled way. This also is not the usual situation where there should be capped costs.[15]
[15] see Andara Homes Pty Limited v Nicholas Palm and Ling Jiang [2014] ACTSC 141 at [45] – [50]
In respect of the order made by the Tribunal in respect of costs we will amend it to correct the clerical error identified but otherwise do not see that it should be altered.

Costs of the appeal

The practitioner sought orders that the Council pay him the appeal filing fee and the hearing fee. In this respect the practitioner referred to section 48 of the ACAT Act.
The Council submitted that the costs of the appeal, like the costs of the original disciplinary application, are governed by section 433 of the LP Act and not section 48 of the ACAT Act, and sought that the practitioner pay 50% of the Council’s costs of the appeal.
The Council pointed to section 434 of the LP Act that excludes section 48 of the ACAT Act in relation to “a proceeding under this Act” and cited The Appellants v Council of the Law Society of the ACT (2011) 252 FLR 209; [2011] ACTSC 133 at [38][16], in which Refshauge J stated:
Although s 48 of the ACAT Act gives certain (and unclear) power for the ACAT to make costs orders, it is expressly excluded from proceedings under the Legal Profession Act: s 434(b) of the Legal Profession Act.
[16] the correct paragraph is at [28]
The Council submitted that the appeal, which is one of fact and law under section 79(3) of the ACAT Act is a proceeding ‘under the Legal Profession Act’. It relied by analogy on the way the word ‘proceeding’ for section 117 of the Family Law Act 1976 has been interpreted to include both original and appeal proceedings under that legislation: see In the Marriage of Dixon [No2] [1999] 151 FLR 344; 25 Fam LR 79 at [16].[17]
[17] See too [1999] FamCA 768. The issue was whether a pre-trial offer was relevant to a costs order on appeal. Two judges thought it could be but one saw it as separate proceedings. All accepted that both were proceedings under the Act
The Council also referred to The Legal Practitioner v Council of the Law Society of the ACT [2011] ACAT 77 as authority for the proposition that section 433 of the LP Act applied to an appeal. That was certainly said in that case, but no reasoning was provided. It also was said there, incorrectly[18], that costs follow the event. This case is not persuasive.
[18] This proposition was identified as an incorrect approach in the Tribunal by Refshauge J at [144] of The Appellants v Council of the Law Society of the ACT (2011) 252 FLR 209; [2011] ACTSC 133
The Council submitted that the interpretation that sections 434 and 433 of the LP Act applied was consistent with the surrounding legislative context, and necessary for that context to be, in practice, coherent. The Council submitted that the term ‘ACAT’ as appearing in section 433 described the Appeal Tribunal as well as the Tribunal appealed from and referred to various provisions of the ACAT Act. This seems unarguably correct.
It was also noted that section 82 of the ACAT Act allowed an appeal to proceed as a hearing de novo, and that must be intended to be covered by the costs regime set out in section 433. Further, under section 434 the rules of evidence exclusion for ACAT proceedings (section 8) is also excluded and it would make sense for the rules of evidence to apply to appeals in proceedings under the LP Act.
The practitioner did not wish to make any submissions in reply.
We agree with the Council’s submission that section 433 applies to an appeal such as this and section 48 of the ACAT Act does not by reason of section 434.
It is arguable that the word ‘proceedings’ applies to both the initial application and hearing and the appeal process but it is also clear that they are two different processes. Thus we are not persuaded that that the appeal proceedings are necessarily to be considered to be the same proceedings as those instituted under the LP Act, and do not consider that the reasoning in In the Marriage of Dixon [No2] [1999] 151 FLR 344 which related to specific legislation, is of general application.
The issue of whether section 433 of the LP Act applies to costs of appeal proceedings in the ACAT has not been the subject of any detailed consideration by the Supreme Court. In Legal Practitioner v Council of the Law Society of the ACT (No 3)[19], an appeal proceeding in the ACAT had been removed to the Supreme Court pursuant to section 83(1) of the ACAT Act. In considering the costs of that appeal, Murrell CJ noted “Although the Supreme Court is not bound by s 433 of the Act, it is appropriate to take into account the scheme under that section”.[20]
[19] [2015] ACTSC 90
[20] It is not explained whether the Supreme Court was considered not to be bound by section 433 because, on its face, it refers only to the ACAT, or because when an appeal is removed from the Tribunal to the Supreme Court, the procedures of the Supreme Court (including relevant provisions as to costs) apply, or both. In any event section 433 does not purport to govern the Supreme Court’s powers in respect of costs
We agree with the Council’s submission that an interpretation of the phrase ‘proceedings under this Act’ to include appeal proceedings in the ACAT would in some ways provide consistency and coherence to the statutory context. The continued application of the rules of evidence would be significant for any application to adduce fresh evidence on appeal, and the continued application of section 433 in relation to costs would be important for appeals conducted as a new application under section 82. In other ways, however, the application of section 433 to appeal costs could seem an awkward fit, as the preconditions in subsections (1), (2) and (3) necessarily occur in original proceedings, rather than appeal proceedings.
In the end, such considerations cannot be relied upon to adopt an interpretation of the words of section 434 which is not otherwise open.
Neither party considered in submissions the ordinary or legal meaning of the phrase ‘proceedings under this Act’ in section 434, although the expression has a rich legal history On a narrow approach, the appeal proceedings are proceedings under the ACAT Act, which provides for the institution of an appeal.
In Energy Resources of Australia Ltd v Commissioner of Taxation [2003] FCA 26 Lindgren J wrote:
[37] The word ‘under’ appears in subs 28(1) and s 29. It is necessary to have regard to the context in order to identify the meaning of the word intended in a particular case. Dictionaries give the relevant definition as ‘in accordance with’ (The New Shorter Oxford English Dictionary (1993), 16b ;The Macquarie Dictionary (1988), 16 ). Meanings recognised as possibilities in the cases include ‘in accordance with’ ( Gilbert v Western Australia [1962] HCA 7 ; (1962) 107 CLR 494 at 516), ‘pursuant to’ and ‘by virtue of’ ( R v Clyne; ex parte Harrap [1941] VLR 200 at 201 per O'Bryan J) and ‘by’ ( R v Tkacz (2001) 25 WAR 77 at [23]-[26] per Malcolm CJ). The word ‘under’ admits of degrees of precision and exactness on the one hand, and of looseness and inexactness on the other.
For ACT legislation, the word ‘under’ has been given an expansive, and inclusive, definition by the Dictionary to the Legislation Act 2001:
under, in relation to an Act or statutory instrument, includes the following:
(a)   by;
(b)   by virtue of;
(c)    for or for the purposes of;
(d)   in accordance with;
(e)    in pursuance of;
(f)     pursuant to;
(g)   within the meaning of.
While the appeal might be considered to be proceedings ‘pursuant to’ or ‘by virtue of’ the ACAT Act, it is also arguably ‘in pursuance of’ or ‘for the purposes of’ the LP Act. The legislative scheme adopted in relation to the ACAT, common to all ‘super-tribunals’, whereby the Tribunal and its general procedural framework are established by the ACAT Act, and the substantive law (and sometimes specific procedures) of particular jurisdictions are contained in separate ‘authorising’ laws, lends itself to the conclusion that proceedings may be, in the broader sense of the word, proceedings ‘under’ both the ACAT Act and the authorising law.
Given the broad statutory definition of the word ‘under’ we are satisfied that the appeal can be considered to be both a proceeding under the ACAT Act, and a proceeding under the LP Act. This means that section 48 of the ACAT Act does not apply, and section 433 of the LP Act does apply, to the costs of the appeal.
Thus, for there to be any order other than that the Council should have its costs on the appeal, there must be exceptional circumstances.[21] There is no power to award costs to the practitioner where the Tribunal is satisfied that the practitioner is guilty of unsatisfactory professional conduct: section 433(3).[22]
[21] (1) If the ACAT finds an Australian legal practitioner guilty of unsatisfactory professional conduct or professional misconduct, the ACAT must order the practitioner to pay costs (including costs of the relevant council and the complainant), unless the ACAT is satisfied that exceptional circumstances exist.
[22] (3) The ACAT may make orders requiring the relevant council for an Australian legal practitioner to pay costs, but may do so only if satisfied that the practitioner is not guilty of unsatisfactory professional conduct or professional misconduct and the ACAT considers that special circumstances justify the making of the orders.
The Council argues also that the appeal decision was not favourable to the practitioner; or that he lost all or most the grounds he argued and was successful because of the Tribunal’ own propositions not submitted by the practitioner; that there were no exceptional circumstances; and the hardship matters had been considered by the original Tribunal and it would be wrong to allow this to be re-agitated now.
The practitioner’s submission on appeal canvassed four issues. The first was whether the duty of fidelity applied. The Council argued that the Tribunal had not really relied on such a duty. We found that the Tribunal did rely on it and was wrong to do so. We also found that this affected the finding as to quality of the conduct. This was an issue won by the practitioner. The second was accord and satisfaction. We found that the Tribunal had made no material error about this point. This was a conclusion in favour of the Council. The third point was whether there had been a breach of the duty of good faith. We held there had been and this was a finding in favour of the Council. The fourth point was whether the conduct viewed as a whole was professional misconduct or unsatisfactory conduct. We held the latter. This was the point argued for by the practitioner and resulted in an overall success in reversing the finding made by the Tribunal.
The practitioner says that was the whole point of the appeal. The appeal had sought orders that might set aside the penalty but no submissions were ever made about that. We had understood that the practitioner was content to leave them unchanged but gave the parties the chance to say otherwise in case we were wrong. The practitioner did not. It was and remains our view that the issues of penalty was never a serious matter that required our intervention. It is not a relevant factor now.
It was argued by the Council that a close analysis of the way the practitioner developed his arguments in writing, at least, meant that success depended on a finding that there was no breach of the duty to act in good faith. That may be a technically justifiable conclusion but the whole reason why we were able to have a proper perspective on the fourth issue was because of the careful and detailed way the practitioner’s counsel took us through the events that made it clear the real state of the practitioner’s mind. In substance, if not in form, the conclusion we reached was based on the absence of a duty of fidelity and the practitioner’s oral argument. Thus we do not agree that the result was not one favourable to the practitioner or that it was in some way adventitious.
In respect of the appeal there are some differences from the circumstances in relation to the original proceedings. The Council maintained its stance unsuccessfully in spite of knowing that there was an error in respect of the duty of fidelity. The difference between its position and that of the practitioner was that he should be taken to have known that he had no argument that warranted his course in banking the $3,000. The practitioner’s position was that he should have known but did not.
Whilst we agree with the Council that it must do its duty irrespective of the personal toll it might have on the practitioner, the toll here was exceptional and out of all proportion to his misdeeds. Additionally, whilst not decisive, the Council lost. When added to the extreme delay not only up until it was dealt with by the Tribunal but the additional time needed to complete the appeal we think the circumstances of the appeal become exceptional. The Council implicitly recognised this by suggesting it should get 50% of the costs.[23] We agree with the practitioner that in the peculiar facts[24] of this case, it is exceptional and that a fair outcome is to make no order as to costs of the appeal.
[23] There was no argument about whether the power to order a percentage requires a finding of exceptional circumstances. We are inclined to the view that it does but even if it does not we have found that the circumstances in relation to the appeal are exceptional
[24] as helpfully explained in the Council’s supplementary note, professional disciplinary cases “turn upon a close consideration of their own facts”: A Solicitor v Law Society of New South Wales (2004) 216 CLR 253 at 275 [37],
The orders we make are first, that Order 5 of the decision of the Tribunal made on 9 November is amended to add after “application” the words “excluding the costs associated with the prosecution of ground six of the application” and secondly that there be no order for costs in respect of the appeal.

………………………………..
Presidential Member M-T Daniel
Delivered for and on behalf of the Tribunal