Quinlivan v Legal Profession Complaints Committee
[2012] WASCA 263 (S)
QUINLIVAN -v- LEGAL PROFESSION COMPLAINTS COMMITTEE [2012] WASCA 263 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASCA 263 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:105/2011 | ON THE PAPERS | |
| Coram: | PULLIN JA NEWNES JA MURPHY JA | 8/03/13 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Appellant's application for costs dismissed; no order for costs in proceedings in State Administrative Tribunal | ||
| B | |||
| PDF Version |
| Parties: | LYNETTE PATRICIA QUINLIVAN LEGAL PROFESSION COMPLAINTS COMMITTEE |
Catchwords: | Costs 'Settlement offer' by legal practitioner Disciplinary proceedings Discretion to order costs in the State Administrative Tribunal Application by legal practitioner for costs after date of 'settlement letter' |
Legislation: | Legal Profession Act 2008 (WA), s 410, s 421, s 424, s 425 State Administrative Tribunal Act 2004 (WA), s 87 |
Case References: | Legal Profession Complaints Committee and Quinlivan [2011] WASAT 138 Legal Profession Complaints Committee and Quinlivan [2011] WASAT 138 (S) Medical Board of Western Australia and Roberman [2005] WASAT 81 (S) Motor Vehicle Industry Board and Dawson [2006] WASAT 8; (2006) 41 SR (WA) 343 Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 Quinlivan v Legal Profession Complaints Committee [2012] WASCA 263 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : QUINLIVAN -v- LEGAL PROFESSION COMPLAINTS COMMITTEE [2012] WASCA 263 (S) CORAM : PULLIN JA
- NEWNES JA
MURPHY JA
- Appellant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram : JUDGE T SHARP (DEPUTY PRESIDENT)
- MS S GILLETT (MEMBER)
MR S ELLIS (SENIOR SESSIONAL MEMBER)
Citation : LEGAL PROFESSION COMPLAINTS COMMITTEE and QUINLIVAN [2011] WASAT 138
File No : VR 83 of 2010
(Page 2)
Catchwords:
Costs - 'Settlement offer' by legal practitioner - Disciplinary proceedings - Discretion to order costs in the State Administrative Tribunal - Application by legal practitioner for costs after date of 'settlement letter'
Legislation:
Legal Profession Act 2008 (WA), s 410, s 421, s 424, s 425
State Administrative Tribunal Act 2004 (WA), s 87
Result:
Appellant's application for costs dismissed; no order for costs in proceedings in State Administrative Tribunal
Category: B
Representation:
Counsel:
Appellant : Mr L A Tsaknis
Respondent : Mr S Vandongen SC & Ms P E Le Miere
Solicitors:
Appellant : Lynette P Quinlivan
Respondent : Legal Profession Complaints Committee
Legal Profession Complaints Committee and Quinlivan [2011] WASAT 138
Legal Profession Complaints Committee and Quinlivan [2011] WASAT 138 (S)
Medical Board of Western Australia and Roberman [2005] WASAT 81 (S)
Motor Vehicle Industry Board and Dawson [2006] WASAT 8; (2006) 41 SR (WA) 343
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Quinlivan v Legal Profession Complaints Committee [2012] WASCA 263
(Page 3)
1 REASONS OF THE COURT: On 24 August 2011, the State Administrative Tribunal (the Tribunal) found the appellant (the Practitioner) guilty of unsatisfactory professional conduct and professional misconduct: Legal Profession Complaints Committee and Quinlivan [2011] WASAT 138. On 5 December 2011, the Tribunal delivered findings in relation to penalty in which the Tribunal ordered that, in relation to the finding of unsatisfactory professional conduct, the Practitioner be reprimanded and, in relation to the finding of professional misconduct, the Practitioner's local practising certificate be suspended for a period of two months: Legal Profession Complaints Committee and Quinlivan [2011] WASAT 138 (S).
2 The Practitioner appealed the findings of the Tribunal to the Court of Appeal. On 14 December 2012, this court delivered reasons in the matter: Quinlivan v Legal Profession Complaints Committee [2012] WASCA 263. The court granted leave to appeal, allowed the appeal, and made an order setting aside the orders made by the Tribunal on 24 August 2011 and 5 December 2011. In lieu thereof, the court substituted an order dismissing the respondent's application dated 19 May 2010. The respondent (the Committee) was ordered to pay the appellant's costs of the appeal. The Committee had commenced proceedings in the Tribunal following the investigation of a complaint against the Practitioner by a complainant.
3 The Practitioner has applied for an order for her costs in the Tribunal after 6 October 2010. That was the date on which the Practitioner made a written offer to the Committee for the application against her to be withdrawn. The Committee opposed the Practitioner's application for costs in the Tribunal after 6 October 2010.
The written 'offer' of 6 October 2010
4 The letter was addressed to the Committee and contained the heading 'without prejudice save as to costs'. The letter referred to the proceedings against the Practitioner and was said to serve as 'formal written notification of [her] offer to settle' the matter on, in effect, the following basis:
(a) that the Committee withdraw its application in the Tribunal without any concessions from the Practitioner;
(b) that the Committee agree not to reissue proceedings or prosecute the same matters again; and
(Page 4)
- (c) that if the Committee agrees to the above, then the Practitioner would pay $5,000 as a contribution to the Committee's legal costs in the matter.
5 The letter concluded that the offer was to remain open for 14 days and was signed by the Practitioner. It was not accepted.
The obligations of the Committee to investigate a complaint
6 By s 410 of the Legal Profession Act 2008 (WA), a complaint may be made to the Committee about an Australian legal practitioner by any person who has a direct personal interest in the matters alleged in the complaint. Section 421(2) requires the Committee, subject to s 421(3), to investigate each complaint. By s 424 and s 425, after the investigation of the complaint is completed, the Committee must either:
(a) dismiss the complaint if it is satisfied that there is no reasonable likelihood that the practitioner would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct;
(b) dismiss the complaint if satisfied that it is in the public interest to do so;
(c) take action pursuant to its summary conclusion powers in s 426; or
(d) refer the matter to the Tribunal under s 428.
7 On 19 May 2010, the Committee made an application to refer the matter to the Tribunal pursuant to s 428 of the Legal Profession Act.
The Tribunal's power to order costs
8 Section 87 of the SAT Act gives the Tribunal the power to order costs. Sections 87(1) and (2) of the State Administrative Tribunal Act 2004 (WA) (the SAT Act) provide:
87. Costs of parties and others
(1) Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.
(2) Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or other material on the application of the party under section 35.
(Page 5)
9 Section 87 does not in its terms specify any considerations which the Tribunal is bound to take into account under s 87(2) in respect of ordering costs in proceedings in the Tribunal's original jurisdiction. Although s 87(2) gives the Tribunal the discretion to order the payment by a party of all or any of the costs of another party, s 87(1) provides the 'starting out rule' that parties to proceedings should bear their own costs in the absence of an order of the Tribunal to the contrary: Motor Vehicle Industry Board and Dawson [2006] WASAT 8; (2006) 41 SR (WA) 343 [43]; Lourey v Legal Profession Complaints Committee [2012] WASCA 112 at [81].
10 In Medical Board of Western Australia and Roberman [2005] WASAT 81 (S), the Tribunal said that although the award of costs is a matter of discretion to be exercised in the circumstances of each case, where a regulatory body is successful in bringing a complaint of misconduct which justifies disciplinary action by the Tribunal, there will usually be a strong case for the exercise of that discretion in favour of the regulatory body. In this regard, the Tribunal said [30]:
That is because such bodies perform a function which promotes the public interest, and usually with limited resources. The financial burden of bringing disciplinary action if the body had no capacity to recover some or all of its costs may be such as to provide a disincentive to bring disciplinary action, or when brought, to ensure that the allegations against the practitioner concerned are properly and thoroughly presented. It is in the public interest that such bodies have an expectation that, if the allegations are made out, the offending professional will meet or at least contribute to the costs incurred in bringing the application.
11 In Motor Vehicle Industry Board and Dawson, the Tribunal outlined the general considerations relevant to an award of costs in disciplinary proceedings in the Tribunal and said [47]:
The decision in the Roberman case does not support the view, however, that an affected person in such proceedings is entitled to an award of costs for the portion of the proceedings in which they were successful. If this approach were to be adopted, vocational regulatory bodies may well feel inhibited in commencing proceedings that should be commenced and maintained in the public interest even though 'success' cannot be guaranteed. Consequently, the Tribunal considers that, ordinarily, unless it can be demonstrated that an application made by a vocational regulatory body lacked any reasonable basis or was not made in good faith, costs should not be awarded against a vocational regulatory body simply because the application was not successful.
(Page 6)
12 These observations have been cited with approval by this court in Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 at [36]; Lourey v Legal Profession Complaints Committee [2012] WASCA 112 at [81]-[82].
Offers of settlement under the SAT Act
13 Section 87(5) of the SAT Act provides that the rules may deal with the effect of certain offers to settle, and any responses to the offer, on the making of an order for the payment by a party of the costs of another party. Rule 42 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules) obliges the Tribunal to take into account that the party did not accept an offer that complied with r 40 and r 41 and that was more favourable than the Tribunal's order. Rule 42 provides:
42. Order for costs if settlement offer is rejected
(1) This rule applies if -
(a) a party to a proceeding (other than a proceeding in the Tribunal’s review jurisdiction) gives another party to the proceeding an offer in writing to settle the proceeding;
(b) the other party does not accept the offer within the time the offer is open;
(c) the offer complies with rules 40 and 41; and
(d) in the opinion of the Tribunal, the orders made by the Tribunal in the proceeding are not more favourable to the other party than the offer.
(2) If this rule applies, the Tribunal is to, in determining the costs that may be awarded, take into account that the party did not accept an offer more favourable than the Tribunal’s order.
(3) In determining whether its orders are or are not more favourable to a party than an offer, the Tribunal -
(a) must take into account any costs it would have ordered on the date the offer was made; and
(b) must disregard any costs it ordered in respect of any period after the date the offer was received.
(Page 7)
The parties' arguments
15 The Practitioner had initially argued that the approach in Roberman was not consistent with the SAT Act. However, the Practitioner later withdrew that submission. Rather, the Practitioner submits that the court, in the exercise of its discretion, should award the Practitioner the costs of the Tribunal proceedings after the date of the 'settlement' letter.
16 The Committee submits that s 87(5) of the SAT Act and the SAT rules relating to costs following settlement offers, have no application to disciplinary proceedings. It contends that having formed the view that the matter should be referred to the Tribunal and having commenced proceedings against the Practitioner, it would have been improper and contrary to the Committee's statutory duties to have taken into account the Practitioner's offer in deciding whether to continue with the proceedings. The Committee submits (perhaps in the alternative to the submission that s 87(5) of the SAT Act and SAT rule 42 have no application to disciplinary proceedings it is not clear) that only in 'very limited circumstances' would it be proper for the Committee to accept payment of a contribution to its costs. The Committee says that an example might be where a practitioner had failed to provide exculpatory evidence which the practitioner had in his or her possession.
Disposition
17 It is unnecessary to determine whether, on their proper construction, s 87(5) of the SAT Act and r 42 of the SAT Rules, apply to disciplinary proceedings. Even assuming that the Tribunal (and hence this court) is to 'take into account' the Practitioner's letter of 6 October 2010, having taken it into account, there remains no sufficient basis for an award of costs in favour of the Practitioner after 6 October 2010.
18 It is to be inferred that the Committee acted in good faith in referring the matter to the Tribunal, and the Practitioner does not contend otherwise. Given that the Tribunal found the Practitioner guilty of unsatisfactory professional conduct and professional misconduct, the Committee's conduct could not be described as lacking a reasonable basis, and again, the Practitioner has not contended otherwise.
19 The Practitioner's letter was merely an offer to pay a sum of money, in an amount the calculation of which was unexplained and is not apparent, for the Committee to drop the proceedings against the Practitioner and promise not to renew them or prosecute the same matters again. It did not alter anything. There was nothing in the letter which
(Page 8)
- would demonstrate that there was no reasonable likelihood of the Practitioner being found guilty of unsatisfactory professional conduct or professional misconduct (see s 421(2)(a) of the Legal Profession Act) or that it was in the public interest not to proceed (see s 421(2)(b) of the Legal Profession Act). No new exculpatory material was advanced. The 'offer' was made without any concessions as to the Practitioner's alleged culpability, which still then remained to be determined by the Tribunal. If the 'offer' were accepted, it purported to constrain the Committee from later referring the matter to the Tribunal, even if new evidence or circumstances emerged which would justify or require that course in the proper discharge of the Committee's duties under Pt 13 of the Legal Profession Act.
20 In all the circumstances of this case, the appropriate order is that there should be no order for costs in the proceedings before the Tribunal. The court will so order.
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