Robb, Gary Alan v The Law Society of the Australian Capital Territory

[1997] FCA 216

IN THE FEDERAL COURT OF AUSTRALIA           )
  )
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY          )  )
GENERAL DIVISION  ) 

No: ACT G 34 of 1996

BETWEEN:              GARY ALAN ROBB

and GERARD PETER REES

Appellants

AND:THE LAW SOCIETY OF THE

AUSTRALIAN CAPITAL TERRITORY

Respondent

CORAM: BLACK CJ, JENKINSON, SACKVILLE, KIEFEL, MERKEL JJ
PLACE: MELBOURNE
DATE : 4 April 1997

MINUTE OF ORDER

THE COURT ORDERS THAT:

The appellants pay the respondent’s costs of the appeals.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA     )

AUSTRALIAN CAPITAL TERRITORY               )
DISTRICT REGISTRY  )          No: ACT G34 of 1996

On Appeal from the Supreme Court of the Australian Capital Territory

BETWEEN:

GARY ALAN ROBB and GERARD PETER REES

Appellants

AND

THE LAW SOCIETY OF THE AUSTRALIAN
  CAPITAL TERRITORY

Respondent

CORAM:      Black CJ, Jenkinson, Sackville, Kiefel and Merkel JJ
DATE   :        4 April 1997
PLACE  :      Melbourne

REASONS FOR JUDGMENT
(Costs)

BLACK CJ, JENKINSON and MERKEL JJ:

The Court has allowed in part appeals against orders of the Supreme Court of the Australian Capital Territory imposing penalties upon the appellants for professional misconduct as barristers and solicitors.  In place of the penalties imposed by the Supreme Court it was ordered that Mr Robb be suspended from practice for a period of six months and that Mr Rees pay a fine of $6,000. The appellants failed in their challenge to the Supreme Court’s findings of professional misconduct and the appeals were otherwise dismissed.  It is now necessary to consider what orders should be made as to the costs of these appeals, the Court having reserved costs and having given leave to the parties to make submissions in writing on that question.

The appellants submit that the respondent Law Society should be ordered to make a substantial contribution to their costs, or ought at least to pay so much of their costs as would have been incurred had the appeal been only against the penalties imposed.  In support of that submission they argue that they were each justified in bringing the appeals, in that lesser
penalties have been imposed and some of the serious criticisms made of them by the Supreme Court have not been upheld.

The Law Society, on the other hand, submits that the Court should order that its costs of the appeal be paid by the appellants on a solicitor and client basis or, alternatively, on party and party basis.  It relies on the fact that although lesser penalties were imposed on appeal the findings of professional misconduct were upheld.  It submits that it was the conduct of the appellants that necessitated the institution of disciplinary proceedings in the first place and that since, on appeal, the appellants continued to maintain that they were not guilty of any professional misconduct, the appeals should be viewed as an extension of the proceedings at first instance.

The Law Society also submits that where a solicitor has failed to displace findings of  professional misconduct on appeal, the usual order is that the solicitor pay the costs of the appeal even if the orders as to penalty are varied.  The Society refers to Chamberlain v The Law Society of the Australian Capital Territory (1992) 43 FCR 148 by way of example. In that case the Court allowed a solicitor’s appeal against an order suspending his right to practise and ordered instead that he be reprimanded. The Court dismissed the solicitor’s appeal against an order that he pay the costs of the Law Society on a solicitor and client basis

and notwithstanding the solicitor’s successful appeal against the penalty imposed by the Supreme Court, the Court ordered that the solicitor pay the costs of the appeal.  These were ordered to be paid on the usual party and party basis.

In the present case, although the appeals were allowed in part and the appellants were certainly justified in bringing them, it is clear that the primary issue was whether the finding of misconduct was justified and on that issue - a very serious issue - the appeals were unsuccessful.  It should also be borne in mind that although the appellants were successful in their appeals to the extent that lower penalties were imposed, the penalties that this Court considered should be imposed were still substantial, involving as they did a suspension from practice for a period of six months,  in the case of Mr Robb and a fine of $6,000 in the case of Mr Rees.  Moreover -

• there was an overlap between the issues of misconduct and penalty; and

• the issue of misconduct occupied a substantial part of the hearing of  the appeal.

In these circumstances, there is no basis for an order that the Law Society pay the appellants’ costs or any part of them.  On the contrary, the appellants should pay the Law Society’s costs of the appeal.  Those costs should, however, be paid on the normal basis, that is to say, as between party and party.

I certify that this and the preceding 3 pages
  are a true copy of the reasons for judgment of
  the Honourable Chief Justice Black, the   Honourable Justice Jenkinson and the   Honourable Justice Merkel.

Associate

Dated: 4 April 1997

IN THE FEDERAL COURT OF AUSTRALIA  )
AUSTRALIAN CAPITAL TERRITORY  )
DISTRICT REGISTRY  )          No. ACT G 34 of 1996
GENERAL DIVISION  )

BETWEEN:

GARY ALAN ROBB and

GERARD PETER REES

Appellants

AND:

THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY

Respondent

CORAM:      BLACK CJ, JENKINSON, SACKVILLE, KIEFEL, MERKEL JJ
PLACE:        MELBOURNE
DATE:          4 APRIL, 1997

REASONS FOR JUDGMENT
  (Costs)

SACKVILLE and KIEFEL JJ:
The appellants seek an order that the respondent Law Society pay the major portion of their costs of the appeal.  They base their claim largely on the contention that they were justified in bringing the appeal.  On the other hand, the respondent seeks an order that the appellants pay its costs of the appeal.

The appellants were successful to the extent that the decision of the Court below, as to penalty, was set aside and lesser penalties were imposed.  However, they also challenged that Court's finding of professional misconduct and that ground involved a substantial argument on the appeal.  This Court confirmed the correctness of the finding of professional misconduct.  In these circumstances we think it appropriate that each party bear their own costs of the appeal.

This conclusion is reinforced by a consideration of the course of arguments on the appeal.  There was, it seems to us, considerable overlap in the matters addressed with respect to the two central issues on the appeal: the characterisation of the relevant conduct and the appropriate penalty to be imposed.  While it is true that the finding of professional misconduct was upheld, this Court concluded that there was much which did not fall properly within the purview of the complaints made against the appellants.  We are of the view that Chamberlain v The Law Society of the Australian Capital Territory (1993) 43 FCR 148, does not lay down an inflexible rule in relation to costs and that the circumstances of the present case warrant a different order being made.

We are also of the view that there is no basis for interference with the order of the Court below that the appellant pay the Law Society's costs, on a solicitor and client basis.  The proceedings were largely concerned with evidence as to the conduct referred to in the report to the Court, which was held to establish professional misconduct, even if the judgment raised additional matters.  The appellants point to one area of complaint which was found by the Court below to have been misconceived.  However, the appellants rely on this matter only in connection with the argument advanced by the Law Society that the appellants should pay the costs of the appeal.  We have not found it necessary to have regard to such matters in determining what orders ought be made with respect to the appeal itself.

In our view there should be no orders as to costs of the appeal.

I certify that this and the preceding two pages are a true copy of the reasons for judgment herein of the Honourable Justice Sackville and the Honourable Justice Kiefel.

Associate:

Date:

Counsel for the appellants:                Mr R A Conti QC and M J Steele
Solicitors for the appellants:              Abbott Tout Harper & Blain

Counsel for the respondent:               Mr R R Stitt QC and Mr G C Lindsay QC
Solicitors for the respondent:             Phelps Reid

Date of Hearing:  11 October 1996

Place of Hearing:  Melbourne
Place of Judgment:  Melbourne
Date of Judgment:  4 April, 1997