LP 12 v The Council of the Law Society of the ACT (No 4)
[2018] ACTSC 117
•4 May 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | LP 12 v The Council of the Law Society of the ACT (No 4) |
Citation: | [2018] ACTSC 117 |
Hearing Date: | 4 May 2018 |
DecisionDate: | 4 May 2018 |
Before: | Elkaim J |
Decision: | See [17] |
Catchwords: | PROCEDURE – Application in proceeding to restrain a party from moving on its application – whether the court has the power to grant injunctive relief |
Cases Cited: | 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 LP 12 v The Council of the Law Society of the ACT (No 3) [2018] ACTSC 115 |
Parties: | LP 12 (Plaintiff/Respondent) The Council of the Law Society of the ACT (First Defendant/Applicant) |
Representation: | Counsel Mr P Menzies QC and 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:
This is the latest skirmish in the Law Society’s pursuit of a solicitor for his alleged breach of trust account regulations. The matter arises from a long since settled dispute between a solicitor and client over a small sum of money.
The charges were brought in the ACT Civil and Administrative Tribunal (‘ACAT’). The proceedings were brought to this Court by the solicitor, who sought declarations and orders effectively designed to bring the matter to an end.
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). I made the following orders:
(a)A declaration that on the evidence as it stands in the proceedings, the plaintiff could not lawfully be found guilty of the charges numbered 2, 2A, 3 and 3A of the Further Amended Application, dated 7 March 2017 filed by the First Defendant in the ACT Civil and Administrative Tribunal.
(b)An order quashing the part of the decision handed down by the second defendant in the proceedings on 7 July 2017 that relates to the charges numbered 2, 2A, 3 and 3A of the Further Amended Application dated 7 March 2017, filed by the First Defendant in the ACT Civil and Administrative Tribunal.
(c)An order remitting the proceedings to the second defendant to determine the plaintiff’s no case to answer submission in respect of charges 2, 2A, 3 and 3A according to law.
(d)The first defendant is to pay the plaintiff’s costs of this application.
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).
On 27 April 2018, I dealt with an application by the Law Society for a stay of the orders I had made on 23 February 2018. The Law Society properly acknowledged that a stay of the declaratory order was not available. This order was not pressed. I did, however, make the second order sought, namely that the order remitting the matter to ACAT be stayed (LP 12 v The Council of the Law Society of the ACT (No 3) [2018] ACTSC 115).
The Law Society has today filed in Court an application for an order restraining the solicitor from taking any further action in ACAT. The application came about after the solicitor filed an application in ACAT, on 30 April 2018, seeking “interim” orders, including the dismissal of charges 2, 2A, 3 and 3A against the solicitor. The orders sought in ACAT seem to be more final than interim, but I accept this may simply reflect the standard form of the application.
The application has been listed for mention at ACAT on 7 May 2018, generating the application before me. I do not know if the procedures in ACAT would permit the application to be heard on that date. Nevertheless, the Law Society wishes to protect its position.
The Law Society, in seeking stay orders, did not seek the relief that it now requests. It presumably took the view that the action contemplated by the solicitor in ACAT would not occur. In fact, the Law Society, in its written submissions, has described the solicitor’s application in ACAT as “extraordinary”. This is despite the very action being contemplated by counsel for the solicitor during argument in the stay application.
The solicitor has submitted that the injunction sought is beyond my power because “the effect of the Court’s declaratory order was not to create rights, but merely to indicate that the plaintiff has no case to answer on Charges 2, 2A, 3 and 3A in ACAT”. As rights were not created, there are no rights to protect by injunctive relief.
I do not think it necessary to enter into the discussion of whether an injunction is an available remedy. I do not propose to grant such relief.
In my view, this matter, having been transferred from ACAT to the Supreme Court and now being the subject of a stay preventing it from being remitted back to ACAT, remains in this Court. The matter is no longer, other than perhaps in respect of management of its future when it does return to ACAT, before ACAT in a character which would permit the orders sought in the application of 30 April 2018 to be made.
Both parties submitted today that the substantive proceedings remain at ACAT. I do not agree. It is apparent from order (c) that I made on 23 February 2018 that it was the “proceedings” that were being remitted back to ACAT. Further, this was an adoption of the precise order that had been sought by the solicitor.
When the stay was granted on 27 April 2018, this order was stayed. It must follow that the proceedings remain in this Court, until further order. The solicitor specifically sought orders in the proceedings and for that reason referred the proceedings to this Court.
Learned Senior Counsel appearing for the solicitor gave an undertaking today that Particular No 2 in the Application filed at ACAT would be abandoned. However, he frankly made it clear that the basis for the declaration would form part of the argument to be placed before ACAT in seeking the orders that the solicitor is requesting from ACAT.
This concession was made to meet the concern I expressed that pursuit of the application at ACAT, relying on the declaration or only on the reasoning behind the declaration, would be contrary to the spirit of the stay order that I made. Although the abandonment of the Particular goes some way to meeting this concern, I remain of the view that, assuming there are proceedings that can be dealt with at ACAT, reliance on my reasoning leading to the declaration would defeat the intent of the stay.
In relation to costs of this application, although the Law Society has failed to achieve the order that it seeks, I do think it was appropriate for the application to be made. It also led to the abandonment of the above Particular in the course of today’s hearing. I think each party should pay its own costs.
I make the following orders:
(i)The application filed in Court by the Law Society on 4 May 2018 is dismissed.
(ii)Each party is to pay its own costs of the application.
| I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 4 May 2018 |
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