Legal Services Commissioner v Singh

CITATION:

Legal Services Commissioner v Singh [2014] QCAT 218

PARTIES:	Legal Services Commissioner (Applicant)
v
Abhay Kumar Singh (Respondent)

APPLICATION NUMBER:

OCR204-10

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Alan Wilson, President

DELIVERED ON:

19 May 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

Order that the respondent pay the applicant’s costs of and incidental to the disciplinary proceeding, assessed on the standard basis.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – COSTS – where Tribunal found respondent guilty of professional misconduct – where Tribunal ordered that the respondent’s name be removed from the roll of practitioners – where Tribunal ordered parties to file and exchange written submissions on costs – where respondent appealed decision – where Court of Appeal dismissed respondent’s appeal where s 462(1) Legal Profession Act 2007 (Qld) requires Tribunal to make an order requiring a person who has engaged in prescribed conduct to pay costs unless exceptional circumstances exist – whether respondent is exempt from a costs order under s 462(1) in a manner prescribed by s 462(5)

Legal Profession Act 2007 (Qld) ss 462(1), 462(5)
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 194A(2)

Legal Services Commissioner v Singh [2013] QCAT 154, cited
Singh v Legal Services Commissioner [2013] QCA 384, cited

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Ms Lane for the Legal Services Commissioner

RESPONDENT:

Mr Singh in person

REASONS FOR DECISION

On 9 April 2013 the Tribunal, after hearing and deciding disciplinary proceedings against Mr Singh,[1] ordered that his name be removed from the local roll and that the parties file and serve written submissions on costs sought by the Commissioner.[2]
[1]Justice Alan Wilson, President; Mr Matthew Woods, Practitioner Panel Member; Dr Julian Lamont, Lay Panel Member.
[2]Although my term as President of QCAT finished some months ago, this residual costs issue in a matter in which I presided can be heard and determined by me pursuant to s 194A(2) of the QCAT Act 2009.
Under s 462(1) of the Legal Profession Act 2007 (Qld) the Tribunal must make an order requiring a person who has engaged in prescribed conduct to pay costs unless exceptional circumstances exist.
Mr Singh subsequently appealed the Tribunal’s decision to the Court of Appeal. His appeal was dismissed with costs late last year.[3]
[3]Singh v LSC [2013] QCA 384.
Mr Singh responded to the Tribunal’s order about submissions on costs in a document he filed in early September 2013, when his appeal was undetermined. He suggested the Tribunal had no jurisdiction while the appeal was on foot. That is wrong but now, in any event, irrelevant.
Otherwise, he did not contend that exceptional circumstances exist. His submission was that costs ought be ‘minimal’ in light of the fact that he had not practised as a lawyer in Australia in a “major” way; had been unemployed from the year 2010; had family and mortgage commitments; and was attempting to run a business, which was struggling.
These proceedings were vigorously contested, and prolonged. Mr Singh was found guilty of professional misconduct. This is ‘prescribed conduct’ as that phrase is used in s 462(1). There is no reason to exempt this matter, or him, from the usual order that the section prescribes.
Under s 462(5) of the LPA an order for costs may be for a stated amount, or for an unstated amount which, however, shows the basis upon which the costs are to be calculated.
No submissions have been received from the Commissioner seeking a stated amount. In the circumstances of this matter the appropriate order is that Mr Singh pay the Commissioner’s costs of an incidental to the proceedings, assessed on the standard basis.

CaseChat Overview and Summary

The Queensland Civil and Administrative Tribunal (QCAT) dealt with a disciplinary case involving Mr Abhay Kumar Singh, where the Legal Services Commissioner sought costs following disciplinary proceedings. The case was heard and decided on the papers by Justice Alan Wilson, who had previously presided over the disciplinary proceedings. The Legal Services Commissioner sought costs against Mr Singh after the Tribunal found him guilty of professional misconduct and ordered his name to be removed from the roll of practitioners. The Tribunal subsequently ordered the parties to file and exchange written submissions on the costs sought by the Commissioner. Mr Singh appealed the Tribunal's decision to the Court of Appeal, which was dismissed with costs. In the present matter, Mr Singh argued that the costs should be minimal due to his lack of significant practice in Australia, his unemployment since 2010, and his family and business commitments.

The primary legal issue for the Tribunal was whether Mr Singh was exempt from a costs order under section 462(1) of the Legal Profession Act 2007 (Qld) in a manner prescribed by section 462(5). The Tribunal considered whether exceptional circumstances existed that would exempt Mr Singh from the usual order that the section prescribes. Mr Singh did not contend that exceptional circumstances existed and instead argued that the costs should be minimal given his personal and financial situation. The Tribunal found that there was no reason to exempt Mr Singh or the matter from the usual order that section 462(1) prescribes. The appropriate order was that Mr Singh pay the Commissioner’s costs of and incidental to the proceedings, assessed on the standard basis.

Justice Alan Wilson, in delivering the decision, noted that under section 462(1) of the Legal Profession Act, the Tribunal must make an order requiring a person who has engaged in prescribed conduct to pay costs unless exceptional circumstances exist. The Tribunal had already found Mr Singh guilty of professional misconduct, which is considered prescribed conduct under the Act. Since Mr Singh did not argue for any exceptional circumstances, the Tribunal determined that the standard order for costs was appropriate. Although Mr Singh had argued for minimal costs based on his personal and financial situation, the Tribunal found that there was no basis to exempt him from the usual order for costs. The costs were to be assessed on the standard basis, as no submissions had been received from the Commissioner seeking a stated amount.

In conclusion, the Tribunal made an order that Mr Abhay Kumar Singh pay the Legal Services Commissioner's costs of and incidental to the disciplinary proceedings, assessed on the standard basis. This decision followed the Tribunal's previous findings of professional misconduct against Mr Singh and its order for his name to be removed from the roll of practitioners. The Court of Appeal had previously dismissed Mr Singh's appeal with costs, further reinforcing the need for him to cover the Commissioner's costs in this matter. The Tribunal's order ensures that the costs are recovered in accordance with the statutory provisions, reflecting the nature and outcome of the disciplinary proceedings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established