Nichols v Legal Services Commissioner (No 2)

The case of Nichols v Legal Services Commissioner (No 2) involved the applicant, Nichols, who sought a statutory order of review against the respondent, the Legal Services Commissioner. The crux of the dispute was the respondent’s decision not to investigate a complaint made by Nichols against two individuals. Nichols was successful in his application for review, and the court ordered the respondent to reconsider the complaint. The respondent had declined an offer by Nichols to settle the proceedings two days prior to the hearing. Nichols argued that the respondent's conduct was unreasonable and sought costs on the indemnity basis.

The central legal issue before the court was whether Nichols was entitled to indemnity costs given the circumstances of the case. Specifically, the court needed to consider the respondent's refusal to settle the proceedings and whether this constituted unreasonable conduct. Additionally, the court had to examine whether Nichols had supplied the respondent with all necessary material prior to the decision being made, as this could impact the assessment of costs.

The court found that the respondent's refusal to settle the proceedings was unreasonable, particularly given the offer was made just two days before the hearing. This unreasonable conduct warranted the grant of indemnity costs. The court also noted that the respondent did not have all the material relied upon by Nichols prior to making the decision, which further supported the finding of unreasonable conduct. Consequently, the court ordered the respondent to pay the applicant’s costs on the indemnity basis.

In summary, the court set aside the respondent’s decision not to investigate the complaint, directed the respondent to reconsider the complaint in light of the judgment, and ordered the respondent to pay the applicant's costs of the proceedings on the indemnity basis.