LP 12 v The Council of the Law Society of the ACT (No 3)

[2018] ACTSC 115

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

LP 12 v The Council of the Law Society of the ACT (No 3)

Citation:

[2018] ACTSC 115

Hearing Date:

27 April 2018

DecisionDate:

27 April 2018

Before:

Elkaim J

Decision:

See [6] – [7]

Catchwords:

PROCEDURE – Application for a stay of orders in the nature of certiorari and declaratory relief – where an appeal to the Court of Appeal in a civil proceeding does not operate as a stay of the order appealed from unless the Court otherwise orders – power of the Court to grant a stay

Cases Cited:

Council of the Law Society of the ACT v The Legal Practitioner D3; Practitioner D3 v The Council of the ACT Law Society [2018] ACTSC 45

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

LP 12 v The Council of the Law Society of the ACT (No 2) [2018] ACTSC 105

Parties:

LP 12 (Plaintiff/Respondent) 

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

Representation:

Counsel

Ms B K Nolan (Plaintiff/Respondent)

Ms R Withana (First Defendant/Applicant)

Solicitors

Capital Lawyers (Plaintiff/Respondent)

McInnes Wilson Lawyers (First Defendant/Applicant)

File Number:

SC 285 of 2017

ELKAIM J:

1. On 23 February 2018, I handed down a judgment in this matter (LP 12 v The Council of the Law Society of the ACT [2018] ACTSC 27). On 27 April 2018, I delivered a judgment on costs (LP 12 v The Council of the Law Society of the ACT (No 2) [2018] ACTSC 105). The applicant has since filed a Notice of Appeal.

1. On 12 April 2018, the applicant filed an application for a stay of my orders. It has properly acknowledged that a stay of the declaratory order is not available. This order is not pressed. It now only seeks the stay of the order remitting the proceedings to the ACT Civil and Administrative Tribunal (‘ACAT’).  

1. The applicant’s written submissions include a suggestion that there is ambiguity in my orders and ACAT’s powers if the matter were remitted to it. I think that the claimed ambiguity is non-existent, and the applicant’s construction of the word “determine” is a remarkable stretch. Suffice to say I do not think that the ambiguity point is of any consequence.

1. I do, however, think that the applicant has a point in raising the complexities that would arise if the matter went back to ACAT, particularly if ACAT determined the matter in the manner in which I anticipate it would and the appeal in this Court were successful. The complications that might arise would be significant. If I erred in my original decision, such that I ought to have made different orders, ACAT’s orders may frustrate any orders that may be made by a Court of Appeal.

1. The parties directed my attention to the decision of Penfold J in Council of the Law Society of the ACT v The Legal Practitioner D3; Practitioner D3 v The Council of the Law Society [2018] ACTSC 45. The applicant submitted that the overriding principle is to ask what the interests of justice requires. If the refusal to grant a stay would ultimately result in an unjust consequence, the interests of justice would be defeated.

1. Accordingly, and with some reluctance, I will grant a stay in terms of Order 1(b) of the Application in Proceedings filed on 12 April 2018, subject to further order.

1. On the question of costs of the application, the applicant submitted that it was, in effect, the winning party and should, therefore, get costs. It is true that a stay has been granted. However, the original application also sought a stay of the declaration, which counsel for the applicant subsequently discovered was unavailable. In my view, the applicant has been successful in part but also pursued an order that ought not to have been pursued. I think that the fair result in respect of costs is that each party should bear its own costs of the application. I make that order.

I certify that the preceding seven [7] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: 27 April 2018