Mericka v Rathbone

[2016] SASCFC 95

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

MERICKA v RATHBONE

[2016] SASCFC 95

Judgment of The Full Court

(The Honourable Justice Blue, The Honourable Justice Bampton and The Honourable Justice Doyle)

26 August 2016

PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - DISCIPLINARY PROCEEDINGS - SOUTH AUSTRALIA - APPEALS

PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT

PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE - NATURE OF PROCEEDINGS

The appellant brought proceedings against the respondent practitioner in the Legal Disciplinary Tribunal alleging unprofessional or unsatisfactory conduct by the respondent. The allegation related to the respondent’s conduct in 2009 in her role as Director of the Legal Practitioners Conduct Board in providing Mr Lieschke with copies of documents from the Board’s file relating to Mr Mericka’s 1997 complaint to the Board about Mr Lieschke. The Tribunal dismissed the charge against the respondent and awarded costs against the appellant. In dismissing the charge, the Tribunal found that the conduct complained of was not conduct in the course of, or in connection with, legal practice; there was a breach of s 73 of the Legal Practitioners Act 1981 (SA) notwithstanding that the information provided to Mr Lieschke was largely not confidential; and the conduct was neither unprofessional or unsatisfactory.

The appellant appealed against the dismissal of the charge and the costs order on a number of overlapping grounds. In effect, the appellant contended that the Tribunal failed to afford procedural fairness and erred in dismissing the charge and ordering the costs.

Held per Doyle J (Blue and Bampton JJ agreeing), dismissing the appeal against dismissal of the charge:

1.       The appellant’s procedural complaints are not made out (at [99]-[137]).

2.       The Tribunal erred in finding that the respondent was not acting in the course of, or in connection with, her practice of the law (at [153]).

3.       The Tribunal correctly found that the respondent’s conduct was neither unsatisfactory nor unprofessional (at [160]).

Held allowing the appeal against the Tribunal's costs order:

4.       The unusual circumstances of the case warrant a departure from the general principle that costs follow the event (at [8]-[21] per Blue J, [23] per Bampton J and [165]-[182] per Doyle J).

Legal Practitioners Act 1981 (SA) s 5, s 21, s 73, s 77B, s 82, s 83, s 85; Supreme Court Rules 2006 (SA) r 263, r 288(1)(b); Supreme Court Act 1935 (SA) s 40, referred to.
Advance Resource Services Pty Ltd  v Charlton (2008) 100 SASR 388; Cornall v Nagle [1995] 2 VR 188, discussed.
Mericka v Employers Mutual Ltd/WorkCover Corporation (Pollard Brothers Pty Ltd) [2011] SAWCT 25; In Re Sanderson; Ex parte The Law Institute of Victoria [1927] VLR 394; Kekatos v The Council of the Law Society of New South Wales [1990] NSWCA 288]; The Council of the Law Society of New South Wales v Seymour [1999] NSWCA 117; Yip v Frolich (2004) 89 SASR 467; Road Chalets Pty Ltd v Thornton Motors Pty Ltd (1986) 47 SASR 53; Penfold v Penfold (1980) 144 CLR 311; House v The King (1936) 55 CLR 499; Rasch Nominees Pty Ltd v Bartholomaeus [2013] SASCFC 105; Copping v ANZ McCaughan Ltd (1995) 63 SASR 523; Oshlack v Richmond River Council (1998) 193 CLR 72; Hamdorf v Riddle [1971] SASR 398, considered.

MERICKA v RATHBONE
[2016] SASCFC 95

Full Court:      Blue, Bampton and Doyle JJ

BLUE J:

1. The appellant Alexander Mericka appeals against the dismissal by the Legal Practitioners Disciplinary Tribunal of a charge he brought against the respondent Alexandra Rathbone alleging unprofessional or unsatisfactory conduct. Mr Mericka also appeals, or seeks permission to appeal, against an order for costs made by the Tribunal in favour of Ms Rathbone against him.

2. In respect of the appeal against the dismissal of the charge, I agree with Doyle J.

3. In respect of the appeal or application for permission to appeal against the costs order, I agree with Doyle J that permission to appeal should be granted and that the costs discretion falls to be exercised afresh given this Court’s conclusion that Ms Rathbone was relevantly acting in the course of practice as a legal practitioner.

   Reasons for costs order

4. The Tribunal published its report with its reasons for dismissing the charge on 25 June 2015. The Tribunal gave permission to the parties to lodge written submissions on the issue of costs and foreshadowed its intention of making orders on costs thereafter.

5. On 29 June 2015, Ms Rathbone lodged a submission that the discretion to order costs should be exercised in the usual manner, namely that costs follow the event. On 7 July 2015, Mr Mericka lodged a submission referring amongst other things to the need for the Tribunal to deal with Ms Rathbone’s conduct, the expression by Olsson AJ of concern about Ms Rathbone’s behaviour, his dealings with the Independent Commissioner Against Corruption and advice he had received that the Tribunal was obliged to inquire into the conduct of Ms Rathbone.

6. On 16 July 2015, the Tribunal made an order that Mr Mericka pay Ms Rathbone’s costs excluding the summary judgment application. The Tribunal did not give reasons for its order.

7. For reasons developed below, this was not an ordinary case in which it was evident that the costs discretion should be exercised such that costs follow the event. In the circumstances, the Tribunal had an obligation to give reasons, albeit relatively brief, for its order as to costs.

   Approach to costs in the Tribunal

8. Subsection 85(1) of the Legal Practitioners Act 1981 (SA) (the Act) provides and at all material times provided:

   The Tribunal may make such orders as to costs against any person on whose application an inquiry has been held, or against any legal practitioner or former legal practitioner whose conduct has been subject to inquiry, as the Tribunal considers just and reasonable.

9. Before turning to the operation and effect of subsection 85(1), it is informative to consider first the general principles applied in ordinary civil litigation and summary criminal litigation in which costs are in the discretion of the Court. Section 40 of the Supreme Court Act 1935 (SA), section 42 of the District Court Act 1991 (SA), section 37 of the Magistrates Court Act 1991 (SA) and section 189 of the Summary Procedure Act 1921 (SA) all confer on the relevant court a power to order costs in the discretion of the court.

10. The overriding principle is that costs are in the discretion of the court and this discretion is not to be fettered by a priori rules. The circumstances of any one case will always be unique to a greater or lesser extent. Nevertheless, certain principles have developed about the manner in which the discretion is commonly exercised, subject always to qualifications and the need ultimately to exercise the discretion taking into account all relevant factors.

11. Those general principles include:

    1.Subject to the following principles, the starting point is that costs follow the event.[1]

    2.When the overall successful party fails on one or more discrete issues, the successful party might be deprived of costs or even be ordered to pay the unsuccessful party’s costs in relation to that issue or issues.[2]

    3.When the costs have been caused or increased by misconduct by the successful party in or leading up to the litigation, the successful party might be deprived of costs or even be ordered to pay the unsuccessful party’s costs to that extent.[3]

    4.When there is a public interest aspect to civil litigation, courts have on occasion exercised their discretion to make no order as to costs.[4]

    5.The mere fact that a summary prosecution in the Magistrates Court is brought in the public interest is not in itself good reason not to order payment of costs on dismissal of the prosecution.[5]

    6.In this respect, the same rule applies to complainants as to defendants.[6]

    7.No distinction is drawn in a summary prosecution in the Magistrates Court between costs being awarded against a private complainant and costs being awarded against a police officer or other public servant acting in the course of his or her duties.[7]

    [1]    Milne v Attorney-General for the State of Tasmania (1956) 95 CLR 460 at 477 per Dixon CJ, McTiernan, Williams, Fullagar and Taylor JJ; Copping v ANZ McCaughan Ltd (1995) 63 SASR 523 at 527-528 per King CJ (with whom Mohr and Nyland JJ agreed). See also rule 263(1) of the Supreme Court Civil Rules 2006 (SA).

    [2]    See Australian Trade Commission v Disktravel [2000] FCA 62 at [3] per French, Kiefel and Mansfield JJ; Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107 at [3]-[6] per Finkelstein and Gordon JJ.

    [3]    Bostock v Ramsey Urban District Council [1900] 2 QB 616 at 623 per Smith LJ; F. King & Co v Gillard & Co [1905] 2 Ch 7; Anglo Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873 at 874 per Devlin J.

    [4]    Channel Nine SA Pty Ltd & Anor v Police & Anor (No 2) [2014] SASCFC 119, (2014) 121 SASR 87at [30]-[37].

    [5]    Harmdorf v Riddle [1971] SASR 398 at 399-401 per Bray CJ, Hogarth J and Sangster AJ.

    [6] Ibid.

    [7] Ibid at 401-402 per Bray CJ, Hogarth J and Sangster AJ.

12. Subject to one qualification, these general principles are also applicable in determining appropriate costs orders in the Tribunal’s exercise of its discretion. This includes that, whether a charge is instituted by the Legal Profession Conduct Commissioner (formerly the Legal Practitioners Conduct Board) or a private person, if a charge is dismissed the starting point should be that ordinarily costs follow the event.

13. The qualification arises from the nature of the jurisdiction exercised by the Tribunal, being that of a disciplinary body for legal practitioners. Proceedings brought before such a body often have a public interest element to them. This qualification is no more than a caution that in certain circumstances particular attention may need to be given to the public interest aspect under the fourth general principle.[8]

    [8]    Oshlack v Richmond River Council (1998) 193 CLR 72 at 126-127 per Kirby J.

14. Nevertheless, this does not detract from the fact that an appropriate starting point remains that ordinarily costs ought to follow the event. As in the case of summary criminal proceedings in the Magistrates Court, in general there ought to be no distinction in principle drawn between ordering an unsuccessful practitioner to pay the costs of the person instituting disciplinary proceedings in the Tribunal and ordering an unsuccessful prosecutor to pay the costs of the practitioner in such proceedings.

15. The third general principle referred to above can have particular application in relation to disciplinary proceedings in the Tribunal. For example, where costs have been impacted by a lack of cooperation by the practitioner with investigation by the Commissioner or inquiry by the Tribunal, delays unnecessarily caused by the practitioner or unnecessary or unjustified applications or objections by the practitioner, the conduct of the practitioner might lead to there being no order for costs in favour of the practitioner even if the disciplinary proceedings are ultimately dismissed.

    Exercise of discretion as to costs

16. In the present case, the starting point is that Mr Mericka was unsuccessful in the proceeding in the Tribunal and prima facie costs follow the event.

17. However, on this Court’s conclusions, Mr Mericka succeeded on two of the three issues that arose before the Tribunal on the overall question whether Ms Rathbone engaged in unsatisfactory or unprofessional conduct. Mr Mericka established that objectively Ms Rathbone breached subsection 73(1) of the Act and was engaged in legal practice at the relevant time. This has two consequences for the exercise of the costs discretion.

18. First, in accordance with the second principle referred to above, it is appropriate to take into account Mr Mericka’s success on these two discrete issues in determining whether there should be some form of costs order other than costs following the event.

19. Secondly, the Tribunal is required by subsection 82(4) of the Act on a charge being laid against the practitioner to inquire into the conduct of the legal practitioner. Given that the objective elements of the conduct alleged were established, it was necessary for the purpose of the inquiry that Ms Rathbone give evidence explaining her conduct and concerning her beliefs and state of mind leading to her decision to release the documents to Mr Lieschke. It was only on hearing such evidence that the Tribunal could determine whether Ms Rathbone had engaged in unsatisfactory or unprofessional conduct. In this respect, the nature of the Tribunal’s jurisdiction being disciplinary, semi-inquisitorial and exercised in the public interest is relevant to the application of the fourth principle referred to above.

20. In addition, this case is very unusual in that the practitioner concerned, Ms Rathbone, was the Director of the Board when the proceedings were instituted. Normally it may be expected that a person aggrieved by a practitioner’s conduct (within the meaning of section 82(2)(d) of the Act) will first make a complaint to the Board (now the Legal Profession Conduct Commissioner), which will investigate the complaint and decide whether it should institute disciplinary proceedings in the Tribunal. If the Board (now the Commissioner) concludes after investigation that the practitioner has not engaged in unprofessional or unsatisfactory conduct, that will be a relevant factor in the exercise of the discretion as to costs if the person aggrieved himself or herself institutes disciplinary proceedings in the Tribunal which are dismissed. Given Ms Rathbone’s position at the Board, although not impossible, there were real practical difficulties about the Board undertaking an investigation into her conduct and at no point was it suggested to Mr Mericka that it should do so.

21. In this unique combination of circumstances, it is appropriate to depart from the starting point that costs follow the event and to order that there be no order as to costs of the proceeding in the Tribunal.

22. I agree with the orders proposed by Doyle J.

    BAMPTON J:

23. I agree with the reasons of Blue J and Doyle J dismissing the appeal against the Tribunal’s decision of 25 June 2015.  I agree that the appeal against the decision of 16 July 2015 should be allowed and that in this unique combination of circumstances it is appropriate to depart from the starting point that costs follow the event. 

24. I agree with the orders proposed by Doyle J.

    DOYLE J:

25. The appellant (Mr Mericka) brought proceedings against the respondent practitioner (Ms Rathbone) in the Legal Practitioners Disciplinary Tribunal (the Tribunal) alleging unprofessional or unsatisfactory conduct by Ms Rathbone.  The allegation related to Ms Rathbone’s conduct in 2009, in her role as Director of the Legal Practitioners Conduct Board (the Board), in providing Mr Lieschke with copies of documents from the Board’s file relating to Mr Mericka’s earlier complaint to the Board about Mr Lieschke’s conduct.  Mr Mericka’s earlier complaint against Mr Lieschke related to his conduct when representing Mr Mericka in relation to his workers compensation claim that had concluded in 1997.

26. On 25 June 2015, the Tribunal dismissed the charge against Ms Rathbone, and on 16 July 2015 awarded costs against Mr Mericka.  Mr Mericka appeals against both decisions.

    Background

27. Mr Mericka was injured in the course of his employment in 1993.  His initial injury was to his lower back but he subsequently suffered various associated physical and psychiatric injuries.  He became totally and permanently disabled. 

28. Over time Mr Mericka made various claims for compensation under the Workers Rehabilitation and Compensation Act 1986 (SA). Mr Lieschke, then a practitioner with the firm Lieschke & Weatherill, acted for Mr Mericka in his pursuit of those claims from around October 1995. Mr Lieschke represented Mr Mericka in proceedings in the Workers Compensation Tribunal during 1996 and 1997. Those claims were finalised in April 1997 by way of redemption agreement under s 42 of the Workers Rehabilitation and Compensation Act.

29. Later in 1997 Mr Mericka made a complaint to the Board about Mr Lieschke’s conduct, and in particular his claim for certain fees claimed by Lieschke & Weatherill to be outstanding in relation to Mr Mericka’s compensation claim.  As a term of the conciliated resolution of that complaint, Mr Mericka paid the outstanding fees ($885.75) and Lieschke & Weatherill delivered its file in Mr Mericka’s matter to Mr Mericka, via the Board.

30. In 2005 Mr Mericka commenced a challenge to the validity of the redemption of his workers compensation claims and entitlements. While acknowledging that he had signed the relevant documents, Mr Mericka sought to impugn the two redemption agreements propounded by the compensating authority (WorkCover Corporation and its claims agent Employers Mutual Limited). Mr Mericka asserted that the agreements were not valid because execution of the documents occurred in circumstances that did not comply with s 42 of the Workers Rehabilitation and Compensation Act in that he had not received the requisite competent professional advice as to the consequences of the redemption, or competent financial advice about the investment or use of the money received.  He also contended that his entry into the agreements was the product of undue influence and duress, misleading and deceptive conduct, and unconscionable conduct on the part of the compensating authority. 

31. Mr Mericka’s claims were heard in the first instance by Auxiliary Justice Olsson in the Workers Compensation Tribunal.  The trial commenced in 2009, with Olsson AJ ultimately delivering his reasons for decision on 5 September 2011.

32. On 20 March 2007, in the course of the interlocutory stages of those proceedings, Mr Mericka’s then solicitor (Mr Elekwachi of FNE Lawyers) wrote to the Deputy Director of the Board (Mr Kolarovich) seeking to inspect “any files the Board might still hold in relation to my client’s said complaint (to the Board against Mr Lieschke) of 1997” and attaching an authority to release information signed by Mr Mericka. 

33. Mr Kolarovich responded by letter dated 22 March 2007, in which he wrote:

    I have retrieved from our archives the complaint file which had been closed in February 1998.  I advise that the Board does not permit inspection of its files.  However, I have herewith provided copies of necessary documents from that file which Mr Mericka would have had at the conclusion of the matter.

34. The letter went on to describe the four documents provided with the letter, being copies of a letter from the Board to Mr Mericka dated 27 February 1998 (confirming the terms of the agreement reached at conciliation on 25 February 1998, and the advice that the Board had found no unprofessional conduct on the part of Mr Lieschke), the Board’s receipt dated 13 March 1998, Lieschke & Weatherill’s receipt of the same date for $885.75 in payment of outstanding legal costs, and a subsequent receipt dated 1 April 1998.

35. During 2007, the solicitors for the respondent to Mr Mericka’s claim (Donaldson Walsh, for the compensating authority) were also seeking access to the Board’s file in relation to Mr Mericka’s complaint against Mr Lieschke.  Donaldson Walsh raised the matter with Mr Mericka’s solicitors, but were told by them that they had been unsuccessful in obtaining or inspecting the Board’s file.

1. In June 2009, Mr Lieschke (who was by then a Deputy President of the Workers Compensation Tribunal) requested access to the Board’s file relating to the 1997 complaint against him.  It appears that he wanted the file to assist him in preparing to give evidence in the trial before Olsson AJ.

2. The Board’s response to Mr Lieschke was by letter dated 22 June 2009 from Ms Rathbone, as Director of the Board.  The letter was in the following terms:

   I refer to our recent telephone conversation on 19 June 2009.

   I advise that the Board has retrieved its old complaint file from archives.  I note that the file was closed in February 1998.

   From the Board’s complaint file I have copied the following documents and herewith enclose two identical bundles:

   1.Statement of Alexander Mericka dated 24 July 1997

   2.Letter publishing complaint to practitioner dated 10 July 1997

   3.Response of practitioner (including enclosures) dated 1 August 1997

   4.Letter LPCB to complainant dated 15 August 1997 (enclosure omitted)

   5.Letter complainant to LPCB dated 24 August 1997

   6.Further response from practitioner dated 8 September 1997

   7.Summary of concerns of complainant dated 4 February 1998

   8.Letter LPCB to practitioner dated 12 February 1998

   9.Letter LPCB to practitioner dated 27 February 1998

   10.Letter LPCB to complainant dated 27 February 1998

   11.Handwritten receipt from LPCB dated 13 March 1998

   12.Letter FNE Lawyers to LPCB on behalf of practitioner dated 20 March 2007

   13.Response of LPCB to FNE Lawyers dated 22 March 2007

   I hope this information is of assistance to the parties.

3. Copies of each of the 13 documents were attached to the letter and thus provided to Mr Lieschke.  After receiving the documents, Mr Lieschke (via his associate, Ms Carey) provided a copy of them to Donaldson Walsh, the solicitors acting for the compensating authority in the Workers Compensation Tribunal proceedings.  Upon receipt of these documents, the solicitors for the compensating authority sought an order from Olsson AJ granting leave to reopen the cross examination of Mr Mericka in those proceedings, on the basis that the documents bore on issues in dispute.

4. Mr Mericka’s solicitors and counsel complained before Olsson AJ about the propriety of the conduct of the Board and Mr Lieschke in relation to the documents attached to the 22 June 2009 letter.  Olsson AJ also expressed concerns about the same.  Subsequently, in his reasons for decision, Olsson AJ made the following obiter observations:[9]

   I am bound to record that, in apparent disregard of the statutory confidentiality provisions related to proceedings before the Board, that entity supplied the copy documents that have recently come to light (including a document which was not [part] of the Lieschke & Weatherill file but notes of an interview of the applicant by a Board officer) not to the applicant but to Mr Lieschke.

   He saw fit to pass them on to the respondent without consultation with or the permission of the applicant, his former client.

   It is for others to judge the propriety of that overall situation.

   [9]    Mericka v Employers Mutual Ltd/WorkCover Corporation (Pollard Brothers Pty Ltd) [2011] SAWCT 25 at [661]-[663].

   Proceedings in the Legal Practitioners Disciplinary Tribunal

5. As a result of the concerns expressed by Olsson AJ, Mr Mericka sought to have Ms Rathbone’s conduct in providing documents to Mr Lieschke investigated. He says that he initially approached the Board, but was told that it would be preferable if someone independent investigated his concerns. It was suggested that he approach the Attorney-General’s office or the Law Society, which he apparently did. Ultimately he formed the view that the only way he could ensure an investigation was to lay a charge in the Legal Practitioners Disciplinary Tribunal which, under s 82 of the Legal Practitioners Act 1981 (SA), would trigger an obligation on the part of the Tribunal to investigate.

6. In March 2013, Mr Mericka commenced proceedings in the Legal Practitioners Disciplinary Tribunal against Ms Rathbone, laying a charge of unprofessional or unsatisfactory conduct under s 82(1) of the Legal Practitioners Act. There were four subsequent applications to amend the charge.  Mr Mericka ultimately relied upon his 25 November 2014 articulation of the charge, and this was the version of the charge adjudicated upon by the Tribunal.

   The charge laid against Ms Rathbone

7. While articulated in rather discursive and confusing terms, the essence of the charge was that Ms Rathbone used her position as Director of the Board to access, and release to Mr Lieschke, the documents attached to Ms Rathbone’s letter of 22 June 2009. It was alleged that her conduct was in contravention of s 73 of the Legal Practitioners Act, and constituted unprofessional conduct, or in the alternative, unsatisfactory conduct.

8. The charge focused on three of the 13 documents provided with the 22 June 2009 letter.  They are documents 1, 7 and 11 identified in that letter, although Mr Mericka challenges the descriptions of the documents in the letter.

9. The first document (Document 1) is largely typewritten but with some handwritten amendments and additions.  It is a summary of Mr Mericka’s complaint against Mr Lieschke arising out of the latter’s claim to be owed $885 in fees in acting for Mr Mericka in his workers compensation claim.  The handwritten changes are not in Mr Mericka’s hand, but apparently reflect changes he suggested.  The document is signed by Mr Mericka.  It is dated in two places – one in Mr Mericka’s hand which appears to read 14 July 1997, and one in someone else’s hand which gives the date as 4 July 1997.

10. The document is written in the first person, as a statement from Mr Mericka.  However, Mr Mericka describes it as notes of an interview with him by the Board’s investigating officer, Mr Lawton, which occurred on 23 June 1997.  Both are probably accurate descriptions of the document as it appears to be a statement based upon an interview of Mr Mericka. 

11. The potential significance of the date and description of the document lies in the reference in Document 2 attached to the letter of 22 June 2009 (a letter from Mr Lawton of the Board to Mr Lieschke dated 10 July 1997) to a “statement taken from Mr Mericka” being enclosed.  Ms Rathbone relied on this description in forming her conclusion that Mr Lieschke had received a copy of Document 1 in July 1997.  She was not aware of any earlier document which was a statement of Mr Mericka (or which otherwise summarised his complaint).  Mr Mericka, on the other hand, believes that he provided an earlier typewritten statement and that this must have been what was enclosed with Document 2.  He referred to his handwritten dating of Document 1 on 14 July 1997 in support of his belief that it would not have been enclosed with Document 2 (which bore the earlier date of 10 July 1997). 

12. The second document (Document 7) is also a typewritten document with handwritten amendments and additions.  It is again signed by Mr Mericka and expressed in the first person.  It is dated 4 February 1998.  It is headed, and appears to be, a “summary of concerns” that Mr Mericka had about the conduct of Mr Lieschke, and which he considered needed to be investigated and/or discussed at conciliation.

13. The third document (Document 11) is dated 13 March 1998, and is in the handwriting of Ms Nicholls “for the Board”.  It is signed by Mr Mericka.  It refers to the receipt by the Board of $885.75 in cash from Mr Mericka in payment of the agreed amount of Lieschke & Weatherill’s fees, and a request by Mr Mericka that the Board pay this sum to Lieschke & Weatherill and ask that firm to deliver its file to the Board.  While the document is thus accurately described as a “receipt”, Mr Mericka points out that it also contains reference to the payment of fees being “as agreed at conciliation”, and in that sense records the outcome of the conciliation of Mr Mericka’s complaint against Mr Lieschke.

    The application for referral to ICAC

14. At various stages following commencement of proceedings in the Tribunal there has been uncertainty on Mr Mericka’s part as to whether he was intending to complain about Ms Rathbone’s conduct as a legal practitioner or as a public officer.  The significance of the latter term is that it is one of the criteria for investigation by the Independent Commissioner Against Corruption (ICAC) under the Independent Commissioner Against Corruption Act 2012 (SA) (the ICAC Act).

15. Mr Mericka had since March 2014 been pursuing an investigation of his complaint against Ms Rathbone by ICAC while his proceedings in the Tribunal were on foot, and had apparently raised his concerns about who was the appropriate investigating authority with an officer from the Office of Public Integrity who had been handling his ICAC complaint.

16. By application dated 16 December 2014, Mr Mericka sought an order from the Tribunal referring the matter to ICAC for investigation.  However, Mr Mericka had received a letter from ICAC dated 11 December 2014.  It referred to Mr Mericka’s attempts to have certain complaints addressed by ICAC.  In relation to his complaint that Ms Rathbone had provided confidential documents to Mr Lieschke (described in the letter as “the first issue”), the letter said:

    In relation to the first issue, you have placed a charge against Ms Rathbone in the Legal Practitioners Disciplinary Tribunal (‘LPDT’).  This is the appropriate body to deal with her conduct and provides for good reason why no further action should be taken in relation to this issue. 

    You must understand that the charges which you have made which are being heard by the LPDT are a matter for you, and in the circumstances it is not within my authority to interfere with such proceedings.

17. At the hearing of his application in the Tribunal on 17 December 2014, Mr Mericka continued to express confusion about the status of Ms Rathbone, and the significance of this issue.  It was explained to Mr Mericka that whether or not Ms Rathbone was a public officer was ultimately of no significance so far as the Tribunal was concerned.  Its jurisdiction or powers relevantly turned on the quite separate issue of whether the conduct of Ms Rathbone complained of occurred while she was acting as a legal practitioner (or in the course of, or in connection with, her practice of the law).  If so, then the Tribunal had jurisdiction regardless of whether or not she was also a public officer.  On the other hand, if her conduct was not in the course of her acting as a legal practitioner, then the Tribunal had no jurisdiction regardless of whether or not she was a public officer.  Further, and in any event, the Tribunal had no power to refer a matter to ICAC.  It was entirely a matter for ICAC whether it chose to investigate any matter relating to Ms Rathbone.

18. Mr Mericka ultimately chose to continue to pursue his claim in the Tribunal against Ms Rathbone, on the basis that he was alleging misconduct by Ms Rathbone as a legal practitioner, and so the Tribunal proceeded to hear and determine the complaint.  The Tribunal accordingly dismissed the application for referral to ICAC on 17 December 2014, and delivered its reasons for so doing on 26 February 2015.

    The application for disqualification of Tribunal members

19. Mr Mericka made applications on 25 September 2014 and 16 December 2014 that all members of the Tribunal (Ms Maharaj QC, Ms Lincoln and Mr Brown) disqualify themselves.  The second of the applications appears to have been largely a re-agitation of the first.

20. The basis for the applications was not entirely clear.  The Tribunal interpreted it as allegation of bias and prejudice by reason of the “close-knit” and “inter-related” nature of the relationship between legal practitioners in South Australia.  It was said that legal practitioners, including the Tribunal members, would not want to be seen to be making findings against one of their colleagues.  Reference was also made to a telephone conversation on 24 September 2014 between Mr Mericka and an officer of the Tribunal, in which the latter was alleged to have said (in the context of a telephone conversation in connection with a hearing date being set) that Ms Rathbone’s solicitor and the Tribunal wished to have the charges “removed” before her interview for a new job took place.

21. The second application also included a complaint that the members of the Tribunal had not made “full disclosure”, and had not given reasons for their refusal of the first application to disqualify. 

22. In their reasons for refusing the second application, dated 26 February 2015, the Tribunal addressed both actual and apprehended bias, holding that neither was established.  As to actual bias, the Tribunal reasoned as follows in dismissing the application:

    Nothing has been put by the complainant to indicate that any of the Tribunal members have prejudged the matter or are unable to bring an open mind to bear upon their deliberations in this matter.  Each Tribunal member puts on record that none of them have in any manner whatsoever prejudged any aspect of this case.

    The Tribunal is of the firm view that no circumstances have been pointed to by the complainant, or are known to any of the Tribunal members, that can ground a complaint against the Tribunal members based on actual [bias].

23. As to apprehended bias, the Tribunal reasoned as follows:

    We are not satisfied that we would be perceived by a fair-minded lay person as not coming to hear the matter with an impartial mind. 

    In the Tribunal’s view a fair-minded lay person observer would understand that a charge may be laid against a legal practitioner and that other legal practitioners may constitute the Tribunal but may hear and determine the charge and providing there is no close or personal association and/or dealings between a Tribunal member and the charged practitioner there would be no reason that such a fair-minded lay person would reasonably apprehend that the Tribunal would not bring an impartial mind to a determination of a charge.

    The Tribunal members put on record that none of them have any personal relationship and/or dealings with the practitioner.  We cannot see any basis on which it can be contended that there could be any reasonable apprehension of bias or actual bias on our part.

    The application for summary dismissal

24. On 4 June 2013 Ms Rathbone filed an application seeking summary dismissal of the charges.  The application had a rather involved history, but ultimately came to hearing on 17 December 2014. 

25. Under s 82(5) of the Legal Practitioners Act, the Tribunal may summarily dismiss any charge that it considers “frivolous” or “vexatious”. Counsel for Ms Rathbone contended that the claim was untenable for two reasons. The first was that in providing the documents to Mr Lieschke, Ms Rathbone merely performed an administrative act unrelated to any practice of the law such that the Tribunal had no jurisdiction. The second was that there was no contravention of s 73 of the Legal Practitioners Act because Mr Lieschke had previously had access to the documents such that there could be no confidentiality in them. 

26. The Tribunal determined that it was not appropriate to decide either issue on a summary basis.  In its reasons for dismissing the application dated 26 February 2015, the Tribunal reasoned:

    The Tribunal is unable at this stage to draw a conclusion as to whether the conduct complained of was carried out by the practitioner in the course of, or in connection with, practice and further evidence is required on this issue. 

    Regarding the contentions of both the parties about the confidentiality or otherwise of the documents that were given by the practitioner to Mr Lieschke, the Tribunal is of the view that s 73 of the Act applies according to its terms. Either the giving of the documents to Mr Lieschke was authorized under the Act, or it was not. Assuming that the practitioner was involved in the practice of the profession of law within the meaning of the Act, the Tribunal does not have sufficient evidence to determine this point. Further, the Tribunal does not know whether at the time the documents were given, the complaint against Mr Lieschke was still extant. As to whether the relevant documents were “confidential” or not, a matter both parties addressed, is in the Tribunal’s view not to the point for present purposes.

    As noted above, an application for summary judgment should only be allowed in a clear case.  This is not such a case.

    The hearing before the Tribunal

27. Mr Mericka’s claim was heard by the Tribunal over two days, on 4 and 5 June 2015.  Mr Mericka represented himself.  Ms Nelson QC and Mr Barnett appeared for Ms Rathbone.

28. Mr Mericka relied on various documents, each of which is identified in the Tribunal’s reasons for decision dated 25 June 2015.  They included his articulation of the charge against Ms Rathbone in his document of 25 November 2014, and his “affidavit/statement” dated 7 April 2015 (although the Tribunal ruled that some paragraphs of this second document were inadmissible).  These two documents were, in effect, treated as Mr Mericka’s evidence in chief.  While he was given an opportunity to, and did, explain and elaborate upon various matters arising from his documents, Mr Mericka did not otherwise give oral evidence.  He was not cross-examined, although he was asked to clarify a couple of matters, and did so from the bar table.

29. Ms Rathbone relied on her affidavit sworn on 4 June 2013.  She also gave oral evidence and was cross-examined by Mr Mericka.

    Ms Rathbone’s evidence

30. Ms Rathbone’s evidence was that she was admitted as a legal practitioner of the Supreme Court of South Australia in 1985 and worked for some years with the Director of Public Prosecutions.  In 1997, she was employed as a solicitor by the Board and in 2007 she was appointed the Director of the Board.  She continued in that position until 2014.

31. Ms Rathbone’s evidence was that to her knowledge the position of Director of the Board had always been held by a legal practitioner.  Her duties as Director were largely administrative, and pursuant to her contract of employment there was no requirement for her to be a legal practitioner.  From time to time she instructed counsel on behalf of the Board, and provided legal advice to the Board.  The Act did not require that the Director of the Board be legally qualified, but Ms Rathbone said that as a matter of practice every legal practitioner employed by the Board, including the Director, held a practising certificate.

32. Turning to the subject matter of the charge laid against her, Ms Rathbone recalled receiving a telephone call from Mr Lieschke in 2009 in which he requested copies of documents from the Board’s file relating to a complaint filed by Mr Mericka against him.  She had not been involved in the investigation of that earlier complaint, and did not have much knowledge about the Workers Compensation Tribunal proceedings that were on foot at the time.  She recalled a general understanding that Mr Lieschke’s request was for documents from the Board’s file that had previously been given to him. 

33. Ms Rathbone requested that the Board’s file be retrieved from archives.  She considered the file and formed the view that Mr Lieschke was entitled to the documents listed in the 22 June 2009 letter.  In so doing, she was informed by her understanding of the Board’s general approach to procedural fairness, and to the provision of documents to practitioners the subject of a complaint.  She explained that she understood the practice of the Board was to disclose to practitioners all documents containing the substance of a pending complaint in order to enable them to answer the complaint.  The Board’s practice also included providing the practitioner, upon request, with copies (or further copies) of documents which they had previously been given, or which had emanated from the practitioner. 

1. Ms Rathbone acknowledged that she knew, when she provided the documents to Mr Lieschke under cover of letter dated 22 June 2009, that the complaint against him had been resolved.  However, she believed that the Board’s practice extended to the subsequent provision of documents if a need and request arose – for example, in dealing with a subsequent professional indemnity.

2. Ms Rathbone said that she considered whether it was appropriate to provide the documents listed in the 22 June 2009 letter in light of s 73 of the Legal Practitioners Act. Her understanding of this section (which she believed to be the Board’s approach to that section) reflected the practice just outlined. In particular, if documents were ones that had previously been provided to the practitioner or emanated from the practitioner, then they were not confidential, and hence provision of them to the practitioner did not contravene s 73. Ms Rathbone acknowledged that with the benefit of hindsight it was possible that this construction of s 73 might have been wrong in law, but said that at the relevant time she had accepted and acted upon what she understood to be the Board’s construction of, and practice regarding, s 73.

3. Ms Rathbone said she considered each document in the file individually and satisfied herself that those provided to Mr Lieschke did not involve any contravention of s 73 because they fell into one or other of the categories described above.

4. Ms Rathbone accepted in her evidence that the documents listed as items 12 and 13 in the letter (being correspondence between Mr Mericka’s solicitors (FNE Lawyers) and the Board in March 2007 in relation to previous requests that had been made to the Board for documents, and the documents that had been released), did not fall into either of the two categories mentioned above.  She accepted that these documents were released to Mr Lieschke for the first time on 22 June 2009, and said that she may have released them as simply containing background information. 

5. Ms Rathbone’s evidence was that after inspecting the Board’s file she made a conscious decision to withhold other documents on the file from Mr Lieschke because they did not fall within the two categories described in her evidence.

6. Ms Rathbone said she also considered whether legal professional privilege attached to the documents, and in so doing acted in accordance with the view held by the Board that when a client made a complaint against his or her own solicitor they waived any legal professional privilege they may otherwise have had in relation to the documents on the practitioner’s file.

7. Ms Rathbone also said that she satisfied herself that none of the documents provided to Mr Lieschke fell within s 77B(2) of the Legal Practitioners Act, on the basis that none of the documents appeared on their face to record anything said or done in the course of a conciliation under s 77B.

8. Ms Rathbone could not recall why (according to the terms of her 22 June 2009 letter) she provided two identical bundles of the documents referred to in her letter to Mr Lieschke.  She assumed that he requested this, although she could not recall why (beyond her speculation that Mr Lieschke might have wanted a spare copy to mark up, and that there may have been some difficulty with Mr Lieschke copying the documents).  As to her concluding reference in the letter to her hope that the information would be of assistance to the parties, she said that she wrote this because she understood from Mr Lieschke that some litigation was on foot, that he did not have his file and that the information he requested from the Board’s file would throw some light on the issues in dispute in the litigation.  She said that she did not know what the issues were in the Workers Compensation Tribunal proceedings.  She did not know what Mr Lieschke was going to do with the documents, except that she knew there was a dispute involving Mr Mericka and Mr Lieschke. 

9. Ms Rathbone’s view was that Mr Lieschke was lawfully entitled to the documents and so she gave them to him.  There was no evidence to the effect that she would have approached the request any differently, or applied any different test, no matter who had made the request for the documents.

10. Having summarised her evidence in similar terms to the above, the Tribunal described Ms Rathbone as an impressive witness who gave her evidence in an open and honest manner and to the best of her recollection.  The Tribunal said that it had no hesitation in accepting her evidence, which was largely unchallenged.

    The Legal Practitioners Act

11. In considering the complaint against Ms Rathbone, the Tribunal applied the Legal Practitioners Act as it existed at the time of the relevant conduct, that is, in June 2009, and when Mr Mericka laid the charge, that is, in March 2013.[10]

    [10]   The Legal Practitioners Act was substantially amended by the Legal Practitioners (Miscellaneous) Amendment Act 2013 (SA), with effect from 1 July 2014.

12. Section 82 enabled a charge to be laid alleging unprofessional or unsatisfactory conduct on the part of any legal practitioner. The charge could be laid by the Attorney-General, the Board, the Law Society or a person claiming to be aggrieved by reason of the alleged unprofessional or unsatisfactory conduct. When a charge was laid, the Tribunal was required (subject to its power under s 82(5) to summarily dismiss any charge that it considered frivolous or vexatious) to inquire into the conduct of the legal practitioner to whom the charge related. Section 82(6) gave to the Tribunal certain powers if it was satisfied after conducting the inquiry that the legal practitioner was guilty of unprofessional or unsatisfactory conduct.

13. In s 5 of the Act, “unprofessional conduct” in relation to a legal practitioner was defined as meaning:

    (a)    an offence of a dishonest or infamous nature committed by the legal practitioner in respect of which punishment by imprisonment is prescribed or authorised by law; or

    (b)    any conduct in the course of, or in connection with, practice by the legal practitioner that involves a substantial or recurrent failure to meet the standard of conduct observed by competent legal practitioners of good repute;

14. That section also defined “unsatisfactory” conduct in relation to a legal practitioner as meaning:

    Conduct in the course of, or in connection with, practice by the legal practitioner that is less serious than unprofessional conduct but involves a failure to meet the standard of conduct observed by competent legal practitioners of good repute.

    The Tribunal’s decision

15. In its reasons dated 25 June 2015, the Tribunal focused upon the following three contentions advanced on behalf of Ms Rathbone as to why the charges were not made out:

    1.   The conduct complained of was not conduct in the course of, or in connection with, legal practice.

    2. There was no breach of s 73 of the Legal Practitioners Act because the information provided to Mr Lieschke under cover of the 22 June 2009 letter was not confidential. Rather, it was information that either emanated from him at the time of the complaint against him in 1997, or had been provided to him at that time.

    3. In any event, even if the conduct complained of was in breach of s 73, it was neither unprofessional nor unsatisfactory.

16. In relation to the first issue, the Tribunal noted that Ms Rathbone held a practising certificate at the relevant time, making her a legal practitioner within the meaning of s 5 of the Legal Practitioners Act. As to whether her conduct in providing the documents to Mr Lieschke occurred in the course of, or in connection with, her practice of the law, the Tribunal observed that the concepts of “practise the profession of the law”, “legal practice” and “practice”, used in the Act were not defined. The Tribunal also noted, however, that s 21 provided some guidance. Section 21(2) provided that a person practised the profession of the law if, in acting for fee or reward on behalf of some other person, he or she prepared one of the various types of documents or instruments listed in the section, or represented any party to proceedings in a court or tribunal. Section 21(4) elaborated upon some of the concepts in s 21(2). Further, s 21(4)(d) provided that an employed legal practitioner who provided legal advice, or legal services of a kind mentioned in s 21(2), for or on behalf of his or her employer or clients of his or her employer, practised the profession of the law.

17. The Tribunal noted Ms Rathbone’s evidence to the effect that her role as Director of the Board was an essentially administrative one, which involved her acting as the chief administrative officer of the Board, and did not involve any requirement under the Legal Practitioners Act that she be a legal practitioner.  That said, she did hold a practising certificate and agreed that from time to time she provided legal advice to the Board, handled complaint files and instructed counsel on behalf of the Board. 

18. The Tribunal concluded that Ms Rathbone’s impugned conduct did not occur in the course of, or in connection with, her practising the law.  The Tribunal explained:

    The Tribunal is not satisfied that in responding to Mr Lieschke’s request for documents from the Board’s file in relation to the complaint against him by the Complainant, Ms Rathbone was involved in the practice of the profession of the law within the contemplation of s 21 and s 5 (definition of unprofessional and unsatisfactory conduct) of the Act. She appears in the Tribunal’s view to have performed an administrative task when she sent the subject documents notwithstanding that she had regard to ss 73 and 77B and issues of legal professional privilege.

19. This conclusion was fatal to Mr Mericka’s claim and the charge against Ms Rathbone.  However, the Tribunal went on to address the second and third contentions made by Ms Rathbone.

20. In relation to the second contention, it turned on the proper construction of s 73. That section was headed “Confidentiality” and provided:

    (1)    Subject to this section, a member of the Board or a person employed or engaged on work related to the affairs of the Board must not divulge information that comes to his or her knowledge by virtue of that office or position except-

    (a)in the course of carrying out the duties of that office or position; or

    (b)as may be authorised by or under this Act; or

    (ba) as may be authorised by or under an agreement or arrangement that has been approved by the Attorney-General under section 73A; or

    (c)in evidence before a court in which criminal proceedings arising from    matters subject to a report of the Board have been brought.

21. Section 73(2) provided that a person referred to in s 73(1) may divulge information referred to in that section in certain other circumstances not presently relevant. Further, s 73(3) provided that “nothing in this section prevents the disclosure of information relating to a complaint to the complainant or a person acting on behalf of the complainant”.

22. The Tribunal did not accept Ms Rathbone’s contention in relation to the construction of s 73. The Tribunal reasoned that while s 73 was headed “Confidentiality”, the terms of the section did not confine the prohibition regarding the divulging of information that came to the attention of a member or employee of the Board by virtue of that office or position to information that was confidential. The section applied to all information that came to the person in question by reason of his or her office or position with the Board. Thus, the fact that the documents provided to Mr Lieschke (and the information in them) were already known to him, and hence not “confidential” so far as he was concerned, did not mean that the provision of those documents was not a breach of s 73. The Tribunal took the view that any divulging of the information referred to in s 73 had to be authorised by the terms of that section. The Tribunal concluded that “there is a good argument that there was no such authorisation.”

23. The Tribunal then turned to the third contention advanced on behalf of Ms Rathbone. The Tribunal accepted that, even if Ms Rathbone’s conduct was in contravention of s 73, it nevertheless did not involve conduct that constituted a “failure to meet the standard of conduct observed by competent legal practitioners of good repute”, as required by the Legal Practitioners Act for either unprofessional or unsatisfactory conduct. After summarising Ms Rathbone’s evidence, the Tribunal said:

    Generally speaking, a practitioner’s conduct cannot, in the Tribunal’s view, be described as constituting a “substantial … failure to meet the standard of conduct observed by competent legal practitioners of good repute” as required by the Act in the definitions of both “unprofessional” or “unsatisfactory” conduct, if he/she is acting in accordance with his/her employer’s established practices (as was the case here) and especially if the practices appear to have been based on a considered view of the law that was open to be taken. A mistaken view of the law does not necessarily constitute unprofessional or unsatisfactory conduct within the meaning of the Act. Ms Rathbone acted with heed to such established practices when considering whether any documents ought to be given to Mr Lieschke and gave proper consideration to the issues raised by ss 73 and 77B and legal professional privilege. It matters not, that in the Tribunal’s view, the Board’s construction, for example, of s 73 is open to question.

    Further, the Tribunal accepts Ms Rathbone’s evidence as to why she enclosed two sets of documents … and the reason why she gave document number 12 … Ms Rathbone was concerned to ensure that any documents that were given to Mr Lieschke were in accord with the Board’s practices in view of the law.  She did this.  She cannot be held responsible for what the recipient of the documents may or may not have done with them.

    The Tribunal accepts Ms Rathbone’s evidence on all matters.  Ms Rathbone’s conduct in authoring [the 22 June 2009 letter] and giving the two sets of documents listed therein cannot in the Tribunal’s view, be described as “ … a failure to meet the standard of conduct observed by competent legal practitioners of good repute”.  In the circumstances, Ms Rathbone, in the Tribunal’s view, acted reasonably when she gave the documents to Mr Lieschke.

24. The Tribunal therefore dismissed the charge against Ms Rathbone.

25. On 16 July 2015, the Tribunal ordered that Mr Mericka pay Ms Rathbone’s “legal costs of and incidental to the hearing of the complaint but excluding the practitioner’s costs of the preparation for and appearance in respect of the summary judgment application which failed.”

    The appeal

26. Mr Mericka appeals against both the dismissal of the charge against Mr Rathbone, as well as the Tribunal’s order in relation to costs.

27. Throughout the course of the proceedings before the Tribunal, and the appeal in this Court, Mr Mericka represented himself, with some assistance from his wife (who is also his carer).  While there is no up to date medical evidence before the Court, it is apparent that he continues to suffer from his disabilities, including a pronounced tremor.  Mr Mericka asserts that his various disabilities, as well as his lack of legal training, have inhibited his ability to prepare and present his complaint against Ms Rathbone.  While there is no doubt some truth in this, I am satisfied from reading the Tribunal’s file, and the transcript of the various hearings, that the Tribunal made appropriate allowances for Mr Mericka.  While his written work was often discursive and confusing, he demonstrated an ability, both before the Tribunal and this Court, to articulate himself clearly and coherently when orally presenting his case.

28. Mr Mericka’s notice of appeal raises 24 grounds of appeal.  Some of the grounds are difficult to understand, and many of them are overlapping.  Some involve challenges to the Tribunal’s substantive decision to the effect that the charge was not made out.  Some relate to procedural issues (such as the refusal of the Tribunal members to disqualify themselves, to refer the matter to ICAC, and to permit Mr Mericka to summons or call certain witnesses).  Some relate to the costs issue.

29. Doing the best I can to distill and summarise Mr Mericka’s grounds of appeal, his essential complaints are as follows:[11]

    [11] While grounds 1, 2, 5 and 6 were formally abandoned, I have included them in this summary for the sake of completeness, and because of the overlapping nature of the grounds.

    1.   The Tribunal erred in not referring Mr Mericka’s complaint to ICAC (or the Office for Public Integrity) (grounds 1 and 2).

    2.   The Tribunal failed to afford Mr Mericka procedural fairness in that the Tribunal members refused to make “full disclosure” (ground 5) and/or recuse themselves (ground 6).

    3.   The Tribunal failed to afford Mr Mericka procedural fairness in its conduct of the proceedings in that it:

    (a)disadvantaged Mr Mericka through its “inaction” given that he was self represented and disabled (ground 7);

    (b)refused to allow Mr Mericka to discuss or refer to a document       unless he provided a copy, but allowed Ms Rathbone to do so,     thereby denying him the right to cross-examine (ground 9);

    (c)refused to allow Mr Mericka to summons or call Mr Kolarovich (a Deputy Director and Freedom of Information Officer of the Board) to give evidence about the Board’s practices, rules and procedures for the release of documents and information in the Board’s complaint files, and about his decision in March 2007 to make only a limited release of documents to Mr Mericka (grounds 10 and 11);

    (d)refused to allow Mr Mericka to summons or call Ms Carey (the Workers Compensation Tribunal associate to Deputy President Lieschke) (ground 12);

    (e)    denied Mr Mericka the right or opportunity to call himself as a witness, and to “testify to and factually identify documents and events that [Ms Rathbone] could only speculate about” (grounds 13 and 14), erred in finding that he “did not give oral evidence and was not cross-examined” (ground 15), and did not allow him to “read out and explain (on a point by point basis)” his affidavit statement dated 7 April 2015 (ground 16); and

    (f)permitted Ms Rathbone to give evidence but refused to hear from   Mr Mericka or his witnesses (ground 21).

    4.   The Tribunal erred in its dismissal of the charges in that it:

    (a)       overlooked or ignored the seriousness of Ms Rathbone’s actions,   and created an erroneous mindset by simplifying Mr Mericka’s   complaint (ground 8);

    (b)failed to comprehend his argument and case (ground 17);

    (c)accepted Ms Rathbone’s evidence and arguments despite Mr Mericka’s desire to provide contrary evidence and arguments (grounds 18 and 24) and despite the lack of documentary support for aspects of her evidence (ground 22) or supporting witnesses (ground 23);

    (d)accepted Ms Rathbone’s speculation, views and reasoning as to      why she released the 23 June 1997 notes of interview document      and the 13 March 1998 notes of conciliation agreement       document, even though she was aware that the Board (and its   then FOI officer, Mr Kolarovich) had decided on 22 March 2007        that the documents were confidential or privileged and not to be     released (grounds 19 and 20).

    5.   The Tribunal erred in ordering costs against Mr Mericka given that he was “directed” by ICAC to have the Tribunal deal with Ms Rathbone’s conduct (ground 3), and that a hearing was necessary to inquire into whether Ms Rathbone was acting as a public officer or legal practitioner at the relevant time (ground 4).  Mr Mericka’s contention was that each party should be responsible for its own costs.

30. I propose to address Mr Mericka’s complaints by grouping them as I have above, commencing with the procedural complaints, before then addressing the challenge to the Tribunal’s substantive decision to dismiss the charge, and then finally the issue of costs.  I do so despite Mr Mericka frankly acknowledging on the hearing of the appeal that his main concern was the costs order and that he maintained his challenge to the Tribunal’s substantive decision largely to demonstrate or emphasise the reasonableness of the allegations he made.

    Refusal to refer the matter to ICAC (grounds 1 and 2)

1. It can thus be seen that the compensatory objective of costs orders means that the general principle that costs follow the event is a relevant consideration in any exercise of the discretion in relation to costs.  In the case of ordinary inter partes litigation, the principle has been sometimes described as, or elevated to, a general rule, or starting point, albeit without at the same time fettering the Court’s discretion.

2. Various additional principles, or qualifications to the general principle that costs follow the event, have developed.  These include the ability, in a case where the overall successful party fails on one or more discrete issues, or in a case where the successful party has engaged in misconduct which has increased the costs incurred, to deprive the successful party of some or all of their costs, or order that they pay some or all of the unsuccessful party’s costs.

3. Both the general principle that costs follow the event, and the qualifying or additional principles relevant in ordinary inter partes litigation, are relevant in the Tribunal’s exercise of its discretion as to costs.  However, in exercising its discretion as to costs, it will also be relevant to take account of the nature of the jurisdiction exercised by the Tribunal, namely that of a disciplinary body for legal practitioners.  Proceedings brought before such a body often have a public interest element to them, and in the case of the discipline of legal practitioners it is of obvious importance that proceedings not be unduly deterred by the risk of adverse costs orders.  By holding practitioners to their professional obligations, and making them accountable for any departures from relevant standards, such proceedings are often for the protection of the public, or at least have a public interest aspect to them. 

4. As the High Court recognised in Oshlack v Richmond River Council,[24] litigation which is in the public interest may warrant a departure from the ordinary rule that costs follow the event.  Certainly the public interest is a relevant consideration in the exercise of the discretion.  No doubt reflecting these matters, many disciplinary bodies are not conferred with any power to make orders in relation to costs.  In the case of other such bodies, special circumstances (or some other threshold requirement) must be established before costs will be ordered.[25] 

   [24]   Oshlack v Richmond River Council (1998) 193 CLR 72.

   [25]   This is the case in relation to the disciplinary bodies for legal practitioners in some interstate jurisdictions.  See G E Dal Pont, Lawyers’ Professional Responsibility, 2013, 5^th Edition, at [23.75], and in particular the legislative provisions set out in footnote 93.

5. In proceedings before the Legal Practitioners Tribunal, where the charge against a practitioner is made out, it is likely that the Tribunal’s discretion in relation to costs will ordinarily be exercised in favour of an order for costs against the practitioner.  The public interest, as well as compensatory objectives, will ordinarily support an order for costs against the practitioner in those circumstances.

6. Where the charge against a practitioner is not made out, the starting point will generally remain that costs follow the event, with the result that the complainant will be required to pay the costs of the practitioner.  By analogy to the position that pertains in relation to summary prosecutions in the Magistrates Court, that starting point will generally apply regardless of whether the complainant is the Board (or Legal Profession Conduct Commissioner) or a private individual.[26]  However, having regard to the public interest element often apparent in proceedings brought in the Tribunal, there will be occasions when it is appropriate to depart from that starting point.  For example, where there has been a lack of cooperation on the part of the practitioner with the investigation by the Board (or Commissioner), or where it was otherwise reasonable, appropriate and in the public interest that the charge in question be pursued against the practitioner, then it may be appropriate that there be no order as to costs despite the proceedings being unsuccessful.

   [26]   Hamdorf v Riddle [1971] SASR 398 at 399-402.

7. In the present case, an application of the general principle that costs follow the event would support the order for costs against Mr Mericka made by the Tribunal.  However, there are several unusual features of this case which in combination warrant a departure from that principle. 

8. The first is that the practitioner was the Director of the Board when the proceedings were instituted.  The relevance of this is that it left Mr Mericka without the alternative course, usually available to aggrieved clients, of leaving any investigation to the Board.  In other words, Mr Mericka did not pursue the charge against Ms Rathbone against the background of the Board having investigated and decided (on the merits) not to investigate.  Rather, by reason of Ms Rathbone’s role with the Board, he had no real alternative mechanism for obtaining an appropriate investigation of, and ruling on, Ms Rathbone’s conduct.

9. Secondly, Mr Mericka has been successful on two of the three issues that arose before the Tribunal on the overall question whether Ms Rathbone had engaged in unsatisfactory or unporfessional conduct. In particular, Mr Mericka established that Ms Rathbone breached s 73(1) of the Legal Practitioners Act, and on the basis of my reasons has also now succeeded in establishing that Ms Rathbone was engaged in legal practice at the relevant time. The only issue on which Mr Mericka failed was whether Ms Rathbone’s conduct in breaching s 73(1) involved unsatisfactory or unprofessional conduct, and resolution of that issue depended to a significant extent upon Ms Rathbone’s evidence explaining her conduct and state of mind leading to her decision to provide the documents to Mr Lieschke.

10. Thirdly, it is also relevant that Mr Mericka was unrepresented, and that his thinking and approach was influenced by the concerns expressed by Olsson AJ.[27]

    [27]   I do not accept, however, that Mr Mericka’s communications with ICAC or the Office of Public Integrity in any way added to the reasonableness of his conduct.  He was not “directed” to pursue the matter by ICAC. 

11. Given this unusual combination of circumstances, it is appropriate that there be no order as to the costs of the proceedings in the Tribunal.

    Orders

12. For these reasons, I would to the extent necessary grant permission to appeal against the Tribunal’s order in relation to costs.  I would allow the appeal, set aside the costs order made by the Tribunal, and substitute an order that there be no order as to costs.  I would not, however, interfere with the Tribunal’s order dismissing the charge against Ms Rathbone.