LP 12 v The Council of the Law Society of the ACT (No 2)

[2018] ACTSC 105

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

LP 12 v The Council of the Law Society of the ACT (No 2)

Citation:

[2018] ACTSC 105

Hearing Date:

On the papers

DecisionDate:

27 April 2018

Before:

Elkaim J

Decision:

The first defendant is to pay the plaintiff’s costs of the application.

Catchwords:

PROCEDURE – Costs – whether the circumstances of the case justify departure from the general rule that costs will follow the event – whether the successful party should only be awarded a proportion of its costs

Cases Cited:

Gray v Richards (No 2) [2014] HCA 47; 315 ALR 1

LP 12 v The Council of the Law Society of the ACT [2018] ACTSC 27

Parties:

LP 12 (Plaintiff)

The Council of the Law Society of the ACT (First Defendant)

Representation:

Counsel

Mr P Menzies QC and Ms B K Nolan (Plaintiff)

Mr N J Beaumont SC and Ms R Withana (First Defendant)

Solicitors

Capital Lawyers (Plaintiff)

McInnes Wilson Lawyers (First Defendant)

File Number:

SC 285 of 2017

ELKAIM J:

1. On 23 February 2018, I handed down judgment in this matter (LP 12 v The Council of the Law Society of the ACT [2018] ACTSC 27). The plaintiff was successful in obtaining the orders sought in the Further Amended Originating Application, filed on 24 November 2017. I also made an order that the first defendant pay the plaintiff’s costs of the application. I granted leave to the parties to make submissions in support of a different costs order.

1. On 1 March 2018, I made orders by consent in Chambers setting out a timetable for the filing of written submissions on costs.

1. In its written submissions, dated 19 March 2018, the first defendant sought an order that the plaintiff be awarded only a proportion (25%) of its costs.

1. It was submitted that the plaintiff was only successful because I accepted an argument made in support of a “new issue” raised for the first time in reply. I note that the hearing occupied two non-consecutive days (12 February 2018 and 16 February 2018).

1. The first defendant accepts that, as a general statement, costs in a proceeding are in the discretion of the court. Costs will, ordinarily, follow the event. The court’s discretion should be exercised to achieve a just result.

1. In Gray v Richards (No 2) [2014] HCA 47; 315 ALR 1, the High Court expressed the general principle at [2]:

The disposition of costs is within the general discretion of the Court. Ordinarily, that discretion will be exercised so that costs are awarded to the successful party, but other factors may have a significant claim on the discretion of the Court. The disposition which is ultimately to be made in any case where there are competing considerations will reflect a broad evaluative judgment of what justice requires.

1. The first defendant submitted that, on a fair reading of my judgment, the plaintiff would have been unsuccessful but for the “new issue”. It was noted that the bulk of the preparation for the hearing was directed towards matters in respect of which the plaintiff was not successful. A just costs order would, therefore, be in the terms stated above.   

1. There is some prima facie merit in the approach taken by the first defendant. It might be thought that the plaintiff only succeeded on a point which arose in the course of the hearing.

1. It is correct to note that I did not accept the plaintiff’s arguments about the application of the parole evidence rule, the workers compensation issue and the attack on the ACT Civil and Administrative Tribunal’s treatment of Charges 3 and 3A.

1. There were, however, matters on which the plaintiff succeeded other than the “new issue”. For example, the first defendant submitted that I did not have jurisdiction to hear the application. I found that I did have jurisdiction (LP 12 v The Council of the Law Society of the ACT [2018] ACTSC 27 at [19]).

1. The plaintiff did, ultimately, succeed and the purpose of the discretion, as stated above, is to achieve justice between the parties. I mentioned some discretionary factors in my judgment relating to my decision to make the declaration sought. I agree with the plaintiff that these factors can also play a part in my discretion concerning costs. As pointed out by the plaintiff, the litigation has taken two years and arises from charges which were instituted five years after the relevant acts occurred. The original dispute was also resolved as between the solicitor and the client.

1. However, I do not agree with the plaintiff’s submission that the exercise of the discretion should lead to an award of costs on an indemnity basis. I think that the just result in this case is that the normal rule should apply, namely that the loser pays the winner’s costs on an ordinary basis. I make that order.

I certify that the preceding twelve [12] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim

Associate:

Date: 27 April 2018