McFarlane v Legal Profession Conduct Commissioner

[2017] SASCFC 39

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

MCFARLANE v LEGAL PROFESSION CONDUCT COMMISSIONER

[2017] SASCFC 39

Ruling of The Full Court

(The Honourable Justice Peek, The Honourable Justice Parker and The Honourable Justice Doyle)

1 May 2017

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - GENERAL RULE: COSTS FOLLOW EVENT

PROCEDURE - COSTS

Order as to costs.

The Full Court dismissed Mr McFarlane’s appeal and considered it unnecessary to deal with the respondent’s notice of alternative contention. The respondent applied for costs.

Held (per Peek, Parker and Doyle JJ):

1)      The appellant is to pay the respondent’s costs of the appeal except for preparatory work and time spent at the hearing of the appeal concerning the notice of alternative contention.

Legal Practitioners Act 1981 ss 73, 82, referred to.

MCFARLANE v LEGAL PROFESSION CONDUCT COMMISSIONER
[2017] SASCFC 39

Full Court:  Peek, Parker and Doyle JJ

THE COURT.

1. Order as to costs.

2. On 7 April 2017 this Court delivered a reserved judgment on Mr McFarlane’s appeal against the decision of the Legal Practitioners Disciplinary Tribunal of 4 July 2016 whereby pursuant to s 82(5) of the Legal Practitioners Act 1981 it summarily dismissed a charge laid by the appellant against Mr Greg May, the Legal Practitioners Conduct Commissioner.

3. This Court indicated in its judgment that the solicitor for the Commissioner had filed a notice of alternative contention contending that the process for disciplinary action in relation to the conduct of the LPCC was, at the relevant time, governed by s 73 of the Act; and that the usual procedures applicable to legal practitioners, including the laying of the complaint, do not apply; and that the Tribunal should have dismissed the complaint for this alternative and additional reason. However, the Court was of the view that, in all of the circumstances, it was not necessary to deal with this notice.

4. On delivery of judgment, the respondent applied for costs of the appeal.  The Court inquired of the appellant as to whether there was anything he wished to say in opposition.  The appellant requested a period of 14 days within which to file a written submission concerning costs.

5. The Court granted that request and made such an order.  It was stated very clearly to the appellant, several times, that such submission was to be restricted solely to the matter of costs.  However, in spite of those statements, the appellant later forwarded various emails complaining about matters not relating to the application for costs.

6. On 21 April 2017, this Court ultimately received from the respondent a document entitled “Submission on Cost”.  Again, this document ranged beyond the topic on which the appellant was granted to file a written submission.  However, as far as we can understand it, the submission appears to accept that costs generally follow the event but asserts that the respondent was guilty of dis-entitling conduct.  This Court finds without hesitation that the respondent was in no way guilty of dis-entitling conduct.

7. We consider that the appropriate course is to order that the respondent has his costs of the appeal, except for preparatory work and time spent at the hearing of the appeal concerning the notice of alternative contention.  We are conscious of the fact that that order may be unduly favourable to the appellant in that we have not ruled against the respondent on the matter of the notice of alternative contention.

8. We do not consider it appropriate to make a further order in favour of the appellant for costs concerning the notice of alternative contention since he has not incurred any liability for legal fees and he was required to attend at Court irrespective of the notice of alternative contention.

9. Accordingly, the Court now makes the following order:

   “The appellant is to pay the respondents costs of the appeal except for preparatory work and time spent at the hearing of the appeal concerning the notice of alternative contention.”