Leneham v Legal Services Commissioner - [2018] QCA 133

SUPREME COURT OF QUEENSLAND

CITATION:

Leneham v Legal Services Commissioner [2018] QCA 133

PARTIES:

RUSSELL JAMES LENEHAM
(appellant)
v
LEGAL SERVICES COMMISSIONER
(respondent)

FILE NO/S:

Appeal No 10189 of 2016
QCATA No 11 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Orders

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal at Brisbane – [2016] QCAT 314

DELIVERED ON:

22 June 2018

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Philippides and McMurdo JJA and Boddice J

ORDERS:

1. The application to adduce further evidence be refused.

2. The respondent pay the appellant’s costs of the appeal, to be assessed upon the standard basis.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the appellant was the subject of six counts under the Legal Profession Act 2007 (Qld) – where the Queensland Civil and Administrative Tribunal dismissed all counts except for one count of failing to provide an updated costs disclosure pursuant to s 315 of the Legal Profession Act 2007 (Qld) – where the appellant successfully had the decision of the Queensland Civil and Administrative Tribunal overturned by the Court of Appeal which found the appellant had not breached s 315 of the Legal Profession Act 2007 (Qld) – where the appellant seeks costs both before the Queensland Civil and Administrative Tribunal and the Court of Appeal on the indemnity basis – whether the appellant should be awarded costs and if so whether costs should be awarded on the indemnity basis

Legal Profession Act 2007 (Qld), s 462(1), s 462(4)

Di Carlo v Dubois & Ors[2002] QCA 225, cited
Legal Services Commissioner v Atkins [2009] QLPT 3, cited
Legal Services Commissioner v Bone [2013] QCAT 550, cited
Legal Services Commissioner v Sing (No 2) [2007] QLPT 5, cited
Leneham v Legal Services Commissioner[2017] QCA 137, cited

COUNSEL:

A Morris QC for the appellant
M D Nicolson for the respondent

SOLICITORS:

Quinn & Scattini Lawyers for the appellant
Legal Services Commission for the respondent

PHILIPPIDES JA:
Background

The appellant was charged with six counts brought by the respondent pursuant to the Legal Profession Act 2007 (Qld) (the Act) as follows:
·Count 1 – Failure to make cost disclosures in breach of the s 308 of the Act.
·Count 2 – Failure to provide an updated costs disclosure in breach of s 315 of the Act.
·Counts 3 and 4 – Charging excessive costs.
·Count 5 – Failure to reasonably supervise.
·Count 6 – Failure to comply with a court ordered costs assessment order.
On 8 September 2016, the Queensland Civil and Administrative Tribunal (the Tribunal) dismissed all counts except for count 2. In respect of that count, the Tribunal found the appellant’s conduct to be unsatisfactory professional conduct and ordered that the questions of sanction and costs be dealt with on the papers.[1]
[1]Legal Services Commissioner v Leneham [2016] QCAT 314.
The appellant successfully appealed against the Tribunal’s decision in relation…

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.

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Details

Case: [2018] QCA 133
Decision Date: 22 June 2018

CaseChat Overview and Summary

In the case of Leneham v Legal Services Commissioner, the appellant, Leneham, appealed against a decision of the Queensland Civil and Administrative Tribunal (QCAT) that had dismissed all counts except for one count of failing to provide an updated costs disclosure pursuant to s 315 of the Legal Profession Act 2007 (Qld). The Court of Appeal found that Leneham had not breached s 315 of the Legal Profession Act 2007 (Qld) and overturned the decision of QCAT. Leneham then sought costs both before QCAT and the Court of Appeal on the indemnity basis.

The primary legal issue the court had to decide was whether Leneham should be awarded costs and, if so, whether costs should be awarded on the indemnity basis. Leneham argued that the Legal Services Commissioner had acted unreasonably, and therefore, costs should be awarded on the indemnity basis. The court had to determine whether there was evidence of unreasonable conduct by the Commissioner and if so, whether it warranted indemnity costs.

The court found that there was no evidence of unreasonable conduct by the Commissioner in the appeal proceedings. The court noted that the Commissioner's actions were motivated by the public interest in regulating the legal profession. The court also held that the evidence sought to be adduced by Leneham was not relevant to the determination of the issue of costs of the appeal. The court held that the Commissioner should pay Leneham's costs of the appeal on the standard basis. However, the court found that QCAT was better placed to decide whether there should be an order, and if so what order, for the costs of the proceeding before it.

In summary, the court held that the Commissioner should pay Leneham's costs of the appeal on the standard basis. The court refused the application to adduce further evidence.

Orders

Orders of the court

1. The application to adduce further evidence be refused.

2. The respondent pay the appellant’s costs of the appeal, to be assessed upon the standard basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

There was no dispute that the costs relating to the hearing before the Tribunal on count 2 should be considered by this Court. For the same reasons as given in relation to the costs of the appeal, it is appropriate to order that those costs be paid by the respondent on the indemnity basis.The application to adduce evidence It is apparent that the evidence sought to be adduced was not relevant to the determination of the issue of costs of count 2 either at first instance or on the appeal. Nor is the material of any other relevance, given the view expressed as to the inappropriateness of considering any other questions of costs.Orders The orders I would make are:1.The application to adduce further evidence is refused.2.The respondent pay the appellant’s cost of the appeal, including costs of the hearing before the Tribunal in so far as they relate to count 2, on a standard basis. McMURDO JA: In my opinion, the order which this Court should make is that the respondent pay to the appellant his costs of the appeal, to be assessed upon the standard basis. I would make no order as to the costs of the proceeding in the Tribunal, because in the circumstances of this case, the Tribunal is better placed to decide whether there should be an order, and if so what order, for the costs of the proceeding before it. As to the costs of the appeal, the only question is whether, as the appellant submits, they should be assessed upon the indemnity basis. For such an order to be made, there must be some evidence of unreasonable conduct on the part of the party against whom the order is sought.[27] And there is the further consideration here that it is the public interest which motivates the Commissioner in bringing proceedings before the Tribunal and, in this Court, in defending a finding by the Tribunal of misconduct by a practitioner.[28][27]Di Carlo v Dubois & Ors [2002] QCA 225 at [36] – [40] citing Rosniak v Government Insurance Office (1997) 41 NSWLR 608 at 616; Johnston v Herrod [2012] QCA 361 at [10] citing White Industries (Qld) Pty Ltd v Flower & Hart (1998) 156 ALR 169 at 236; [1998] FCA 806.[28]Legal Services Commissioner v Sing (No 2) [2007] QLPT 5 at 2 per de Jersey CJ. Clause 52 of Practice Direction 3 of 2013 provides that parties wishing to make submissions on costs must do so in their written outlines of argument and/or orally at the hearing, unless leave is given to make submissions or further submissions on costs after the hearing. When this Court decided the appeal, it directed the parties to provide written submissions on costs. That direction did not expressly limit the length of the submissions, but clause 52(4) required that the submissions not exceed two A4 pages unless otherwise ordered by the Court, a judge of appeal or a registrar. Counsel for the appellant saw fit to present some 40 pages of written submissions on costs. I am unaware of any approval for that course. Most of those submissions addressed the conduct of lawyers representing the Commissioner before the Tribunal. Those submissions relied upon evidence which counsel for the appellant sought to put before this Court. None of that evidence is said to be relevant to the conduct of the case in this Court and to whether costs of this appeal should be awarded upon an indemnity basis. Indeed, at page 39 of his written submissions, Mr Morris QC writes that:“Any criticism of the LSC’s conduct of the proceedings before QCAT does not extend to the conduct by the LSC of proceedings before the Court of Appeal. On the contrary, it is appropriate to acknowledge that proceedings in this Court have been conducted on behalf of the LSC with absolute propriety[.]”

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Leneham v Legal Services Commissioner [2018] QCA 133
PARTIES:	RUSSELL JAMES LENEHAM (appellant) v LEGAL SERVICES COMMISSIONER (respondent)
FILE NO/S:	Appeal No 10189 of 2016 QCATA No 11 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal – Further Orders
ORIGINATING COURT:	Queensland Civil and Administrative Tribunal at Brisbane – [2016] QCAT 314
DELIVERED ON:	22 June 2018
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	Philippides and McMurdo JJA and Boddice J
ORDERS:	1. The application to adduce further evidence be refused. 2. The respondent pay the appellant’s costs of the appeal, to be assessed upon the standard basis.
CATCHWORDS:	APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the appellant was the subject of six counts under the Legal Profession Act 2007 (Qld) – where the Queensland Civil and Administrative Tribunal dismissed all counts except for one count of failing to provide an updated costs disclosure pursuant to s 315 of the Legal Profession Act 2007 (Qld) – where the appellant successfully had the decision of the Queensland Civil and Administrative Tribunal overturned by the Court of Appeal which found the appellant had not breached s 315 of the Legal Profession Act 2007 (Qld) – where the appellant seeks costs both before the Queensland Civil and Administrative Tribunal and the Court of Appeal on the indemnity basis – whether the appellant should be awarded costs and if so whether costs should be awarded on the indemnity basis Legal Profession Act 2007 (Qld), s 462(1), s 462(4) Di Carlo v Dubois & Ors[2002] QCA 225, cited Legal Services Commissioner v Atkins [2009] QLPT 3, cited Legal Services Commissioner v Bone [2013] QCAT 550, cited Legal Services Commissioner v Sing (No 2) [2007] QLPT 5, cited Leneham v Legal Services Commissioner[2017] QCA 137, cited
COUNSEL:	A Morris QC for the appellant M D Nicolson for the respondent
SOLICITORS:	Quinn & Scattini Lawyers for the appellant Legal Services Commission for the respondent