Supreme Court Of the Australian Capital Territory; Case Title:; Council of the Law Society of the Act v Legal Practitioner; 202021 (No 2); Citation:
[2022] ACTSC 204
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Council of the Law Society of the ACT v Legal Practitioner 202021 (No 2) |
Citation: | [2022] ACTSC 204 |
Hearing Date: | Decided on written submissions |
DecisionDate: | 15 August 2022 |
Before: | Mossop J |
Decision: | There is no order as to the costs of the proceedings. |
Catchwords: | CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Assessment of costs – appeal from a decision of a single member of the ACT Civil and Administrative Tribunal – appeal to the Appeal Tribunal of the ACAT removed to the Supreme Court – appeal against decision overturning summary action against a legal practitioner under s 413 of the Legal Profession Act 2006 (ACT) – where appeal was dismissed – whether power exists to order costs in removed appeal proceedings – where nature of proceedings are administrative review proceedings – prescriptive costs provisions in the Legal Profession Act 2006 (ACT) give rise to necessary implication that the general costs power in r 1721 of the Court Procedures Rules 2006 (ACT) is excluded |
Legislation Cited: | ACT Civil and Administrative Tribunal Act 2008 (ACT), ss 48, 82, 83, 84, 85, 86 Civil and Administrative Tribunal Act 2013 (NSW), s 60 Legislation Act 2001 (ACT), s 176 |
Cases Cited: | B & T Constructions (ACT) Pty Ltd v Construction Occupations Registrar [2013] ACTSC 219 Booker v Gill (1898) 15 WN (NSW) 158 |
Parties: | Council of the Law Society of the ACT ( Appellant) Legal Practitioner 202021 ( Respondent) |
Representation: | Counsel D Moujalli ( Appellant) R Arthur ( Respondent) |
| Solicitors McInnes Wilson Lawyers ( Appellant) KJB Law ( Respondent) | |
File Number: | SCA 39 of 2021 |
Decision under appeal: | Court/Tribunal: ACT Civil and Administrative Tribunal Before: Senior Member Orlov Date of Decision: 10 August 2021 Case Title: Legal Practitioner 202021 v Council of the Law Society of the ACT (Occupational Discipline) Citation: [2021] ACAT 74 |
MOSSOP J:
Introduction
On 1 June 2022 I dismissed an appeal by the Council of the Law Society against a decision of the ACT Civil and Administrative Tribunal (ACAT): Council of the Law Society of the ACT v Legal Practitioner 202021 [2022] ACTSC 129. The appeal was an appeal from the ACAT to the Appeal Tribunal of the ACAT which had been removed into this court pursuant to s 83 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (ACAT Act).
Having been successful in the appeal, the respondent legal practitioner sought his costs. In answer to that, the Council submitted that the court had no power to award costs. It relied upon the decision of Refshauge ACJ in The Appellants v Council of the Law Society of the ACTand the Legal Practitioner [2011] ACTSC 133; 252 FLR 209 (the Costs Case) and the Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 207; 257 FLR 118 (Legal Practitioner). In the event that the court found that it did have power to make a costs order, the parties made competing submissions as to what, if any, orders should be made.
How the proceedings got to this court
A complaint was made to the Law Society by a disgruntled client. After investigation of the complaint, the Council of the Law Society had power to dismiss the complaint under s 412 of the Legal Profession Act 2006 (ACT) (LP Act), take action under s 413 of that Act (which provided a mechanism for summary resolution of complaints by the Council where the complaint was made out) or make an application to the ACAT under Pt 4.7 of the LP Act. Part 4.7 of the LP Act deals with disciplinary applications to the ACAT.
On 1 October 2020 the Council dealt with the matter under s 413 and decided to publicly reprimand the practitioner and fine him $1500. The legal practitioner then exercised his entitlement under s 416 of the LP Act to appeal the Council’s decision to the ACAT.
The ACAT set aside the decision made on 1 October 2020 and substituted a decision to dismiss the complaint: Legal Practitioner 202021 v Council of the Law Society of the ACT (Occupational Discipline) [2021] ACAT 74.
On 7 September 2021 the Council appealed against that decision to the Appeal Tribunal of the ACAT. On 1 November 2021 a presidential member of the ACAT ordered that the matter be removed to the Supreme Court pursuant to s 83 of the ACAT Act. The appeal was heard in the Supreme Court on 26 May 2022 and determined on 1 June 2022.
The key matter to note is that what the court was dealing with was the appeal from the ACAT to the Appeal Tribunal of ACAT which had been removed into the court.
Submissions as to power to award costs
The Council contended that the decision in the Costs Case was determinative of the question of costs because that decision held that there was no power to make a costs order in a case such as the present. The legal practitioner contended that the decision in the Costs Case was not clear but that, if it involved a holding that the court has no power to award costs in an appeal such as this, it should not be followed. These submissions were developed by reference to what Refshauge J said a few months later in Legal Practitioner.
Before elaborating upon the legal practitioner’s argument, it is necessary to say something more about each of these two cases.
The decision in the Costs Case
10. In the Costs Case a complaint was made to the Council of the Law Society. The Council dismissed the complaint. The complainants then appealed that decision and, following the enactment of the ACAT Act, the appeal was dismissed. The ACAT made a costs order against the complainants and in favour of the Council and the relevant legal practitioner. The complainants appealed from that decision to the Appeal Tribunal of the ACAT. The appeal was removed pursuant to s 83 of the ACAT Act into the Supreme Court.
11. The ACAT had relied upon s 416(3) of the LP Act in order to make the costs order. That provided that the ACAT “may make any order it considers appropriate on the appeal”. The ACAT decided that it had power to make an order for costs under this provision. The complainants contended that this was wrong and that the ACAT had no power to make a costs order against them.
12. His Honour, in addressing a procedural issue relating to the title and numbering of the proceedings before him, said (at [17]) in relation to the nature of the proceedings before him:
The removal of an appeal from the ACAT into the Supreme Court does not attract the jurisdiction of the Court of Appeal. It is, in this court, simply the exercise of its original jurisdiction in place of the internal appeal process of the ACAT. The ACAT Act is not helpful in deciding the nature of the proceedings, but it seems to me that, in this instance, this Court is hearing the appeal from the decision of the ACAT on the original application that the ACAT in its appellate jurisdiction under Div 8.1 of the ACAT Act would otherwise have heard and it is, therefore, the exercise of the appellate jurisdiction of the ACAT but within the jurisdiction of a single judge, as the appellate jurisdiction of this Court is exercised by a single judge from a decision of a Magistrate. The hearing should be conducted within the procedural framework of this Court …
13. Refshauge ACJ identified that the grant of a power to “make any order it considers appropriate” was “a result of lazy drafting instructions, where the policy is not clear and no thought has been given to the precise parameters of the power to be given to the court or tribunal”: at [77]. His Honour approached the question by considering:
(a)the nature of the ACAT;
(b)the LP Act as a whole;
(c)section 416 of the LP Act; and
(d)the authorities.
14. Between [87] and [140] his Honour examined each of these matters insofar as they were relevant to the interpretive question that was to be addressed.
15. In relation to the nature of the ACAT, he referred to authorities which explain the Tribunal’s purpose, that the power to order costs will more readily be implied in superior courts, and that for a Tribunal such a power must be clearly conferred by statute.
16. In relation to the LP Act as a whole, his Honour referred to the fact that there was a specific regime for the purposes of Pt 4.7 of the Act in s 433 and that power did not give power to order a complainant to pay the costs of a practitioner. There were no other express provisions about costs of proceedings in the ACAT in the LP Act. That, along with some policy considerations indicated that the structure and content of the Act was inconsistent with a view that a power to order costs in such proceedings was necessary to make the regime in the Act work.
17. In relation to s 416 itself, his Honour held that the language of s 416(4) was inconsistent with the submission that the reference in s 416(3) to “any order it considers appropriate on the appeal” extended to an order for costs.
18. So far as case law was concerned, his Honour identified that neither Booker v Gill (1898) 15 WN (NSW) 158 nor Queensland Fish Board v Bunney; ex parte Queensland Fish Board [1979] Qd R 301 supported the contention that a costs order was available. His Honour referred to a number of other cases before returning to Smith v Champion (No 2) [2009] ACTCA 15 which his Honour characterised as addressing a different situation and hence was of no assistance in determining the limits of s 416(3).
19. All of these considerations led his Honour to conclude that there was no express or implied power in either the LP Act or the ACAT Act to permit the ACAT to make the costs order.
20. Because it is of significance to the legal practitioner’s argument in the present case, it is necessary to note that Refshauge ACJ went on to consider whether, if there was a statutory power to award costs, the tribunal had erred. He commenced this consideration by saying:
141.In light of my conclusion of the question of whether the ACAT had power to make the costs order it made, I do not need to decide this issue.
142.In deference to the submissions made, however, I will express my views briefly.
21. He went on to consider the substance of the issue, concluding that the ordinary approach to costs in adversarial litigation did not apply and that “but for the orders I propose to make” he would have set aside the orders and re-exercised the discretion. He therefore upheld the appeal and set aside the costs orders made by the ACAT. In relation to the costs of the proceedings before him his Honour said:
150.In line with my decision, it would appear that I should make no order as to costs, but I will give the parties an opportunity to address me on that issue and any other consequential orders they consider should be made.
The decision in Legal Practitioner
22. In Legal Practitioner proceedings in the Appeal Tribunal were removed to the Supreme Court. One of the issues that the court was required to determine was whether the removed appeal should proceed as a hearing de novo or as a rehearing. These were alternatives available to the ACAT under s 82. Refshauge J held that s 82 continued to apply to the appeal notwithstanding its removal to the Supreme Court: at [46]. He continued:
47. The removed appeal, then, must attract the relevant provisions of the ACAT Act which directly apply to such a proceeding, though, of course, the Court has and may apply the procedures applicable in this Court and its processes so long as they are not inconsistent with or ousted by the relevant legislation. Thus, for example, I considered in the Costs Case (at [150]), that, although the Court had ordinarily an undoubted power to make a costs order, when exercising the power of the appeal tribunal under a referral through s 83 of the ACAT Act, it probably did not have that power.
23. In the present case the legal practitioner emphasised the use of the word “probably” in the last sentence.
24. For present purposes it is unnecessary to refer to the balance of the reasons in this decision other than to note that his Honour concluded that the appeal should proceed as a review of the decision pursuant to s 82(1)(b) of the ACAT Act and that the proceedings should not be referred to a full court.
The legal practitioner’s argument
25. The legal practitioner relies upon the last sentence in the passage quoted at [22] above and submitted that “What his Honour meant by this is, on closer consideration of the Costs Case, not immediately apparent.” He referred to the earlier statements in the Costs Case quoted above (see [12]) which indicated that when appeals in the ACAT were removed into the Supreme Court the hearing was “conducted within the procedural framework of this Court.” He therefore submitted that it was not clear from what was said at the end of the decision in the Costs Case whether, when addressing the costs of the proceedings before him, Refshauge ACJ was saying:
(a)because of his decision that s 416(3) provided no power to the ACAT to award costs, when an ACAT appeal was removed to the Supreme Court the Supreme Court had no power to award costs; or
(b)because of his decision about the merits of the ACAT decision to award costs (made following his conclusion that there was no power to award costs) he considered, notwithstanding that the Supreme Court retained its power to award costs, no order should be made.
26. The legal practitioner characterised the question as being “whether a superior court that is exercising the powers of a tribunal in the determination of proceedings before it is stripped of the powers that it would otherwise have”.
27. He referred to the decision in Donohue v ACT Planning and Land Authority [2014] ACTSC 44; 284 FLR 103, involving a question of law referred under s 84 of the ACAT Act, in which a costs order was made. He also identified that, in appeals under s 86, the court has “all the powers and duties of the … tribunal that made the order appealed from”: Court Procedures Rules 2006 (ACT), r 5052.
28. He also referred to the extemporaneous decision of Sackar J in Sobalirov v Bullen [2020] NSWSC 1643, a case involving removal of proceedings from NSW Civil and Administrative Tribunal (NCAT) into the New South Wales Supreme Court in which his Honour found that s 60 of the Civil and Administrative Tribunal Act 2013 (NSW), which provided a restriction upon the power to award costs, did not bind the court when dealing with an application removed from NCAT into the Supreme Court.
29. He submitted that if removal under s 83 of the ACAT Act results in the court having the powers of the ACAT but none of its own then this would be anomalous. He submitted that Refshauge J did not expressly say that the court was shorn of its power to award costs and referred to the tentative nature of what was said in Legal Practitioner (“probably did not have that power”).
30. He submitted that there was no essential difference between a referral of a discrete question of law to the Supreme Court and the removal of the whole of the proceeding. He submitted there was no reason for the curtailment of the powers of the destination forum in one case but not in others even though it may be appropriate to exercise those powers having regard to the powers of the originating forum and the policy underlying them.
31. As a consequence, he submitted that if the decision in the Costs Case was that the court had no power to award costs, it should not be followed, but that the court should have regard to the policy behind the no costs regime of ACAT when it exercises its discretion in relation to costs.
Decision
32. Costs orders have been made in proceedings removed to the court pursuant to s 83 of the ACAT Act: B & T Constructions (ACT) Pty Ltd v Construction Occupations Registrar [2013] ACTSC 219, PAAN Investments Pty Ltd (in liquidation) v Commissioner for Revenue for the ACT [2014] ACTSC 161; 290 FLR 1 (PAAN Investments). These were not proceedings arising under the LP Act or, more particularly, under s 416. Neither decision involved any discussion of the circumstances in which the general power to award costs may be excluded.
33. An ACAT internal appeal removed to the Supreme Court under s 83 comes within the scope of r 5051 of the Court Procedures Rules, which sets out the types of appeals to which Pt 5.3 of the Court Procedures Rules applies: see table 5051 item 1. Further, Pt 2.17 (which relates to costs) is applied by r 5001 to such appellate proceedings.
34. Even though the rules treat a removed internal appeal in the same manner as appeals to the court under s 86, there is a distinction between removal and appeal. The rules deal separately with referrals of questions of law. In both appeals and referrals, there is a new proceeding which arises out of and is separate from the underlying ACAT proceeding. In the case of removal, while there is a change of forum, it remains the application or appeal commenced in the ACAT that must be determined.
35. Having been removed, the issue raised by the legal practitioner’s submissions is whether or not, in addition to the general procedural framework that is picked up as a result of the removal, the powers under the rules to award costs are also picked up. The submissions of the Council assume that the absence of a power to award costs under the LP Act contains within it a negative implication which would exclude, when internal appeals are removed to the Supreme Court, the power of the Supreme Court under the Court Procedures Act2004 (ACT) and Court Procedures Rules to award costs.
36. In my view, the reasons of Refshauge ACJ in the Costs Case indicate that his Honour concluded that there was no power in the ACAT under s 416 of the LP Act, to make a costs order. When his Honour said at [150] “In line with my decision, it would appear that I should make no order as to costs …”, his Honour was referring to his conclusion about the scope of s 416 and the implications that had for his orders in the removed appeal. I do not accept the submission that his Honour may have been referring to discretionary considerations when he referred at [150] to “my decision”. His Honour had made it clear at [141] that so far as the exercise of discretion in relation to costs was concerned “I do not need to decide this issue”. Thus, when referring to “my decision” at [150], his Honour was referring to his decision that s 416(3) did not provide a power to award costs.
37. However, the reasons in the Costs Case do not make clear whether the parties ultimately made submissions on the question of costs or what order in relation to costs was made. The somewhat tentative subsequent reference in Legal Practitioner (at [47]) to the court “probably” not having the power to award costs tends to reinforce the fact that the reasons in the Costs Case contain no definitive conclusion as to the availability of a power to award costs in such proceedings. It is this that leaves open the argument that the legal practitioner has advanced.
38. The submissions put on behalf of the legal practitioner as to the continued existence of the court’s general costs powers in proceedings governed by Ch 5 of the Court Procedures Rules are reasonably arguable. Their resolution turns on whether or not the specific provisions of the LP Act, which do not give power to the ACAT (either at first instance or upon an internal appeal) to make an order for costs, mean that, notwithstanding the general power to make a costs order in r 1721 (picked up by r 5001 in relation to proceedings within Ch 5), there is no power to award costs in relation to an appeal under s 416 removed to the Supreme Court under s 83.
39. In exercising its original or internal appellate jurisdiction, the ACAT is performing an administrative review function. It is not exercising judicial power. The scope of the administrative review task is defined by the statutory provisions which provide for it.
40. Sections 83-86 of the ACAT Act do not expressly give jurisdiction to the Supreme Court. However, s 176 of the Legislation Act 2001 (ACT) provides that where a law expressly or by implication authorises a proceeding to be brought in a particular court or tribunal, the law vests the court or tribunal with jurisdiction in the matter. Sections 83-86 undoubtedly trigger the operation of s 176 and hence vest jurisdiction in the Supreme Court.
41. The effect of s 83 is to allow, in this case and any case in which the ACAT is not exercising judicial power, an administrative review proceeding to be removed into, and heard and determined by, the Supreme Court. Notwithstanding that, in some cases, the character of the proceeding in the ACAT will be that of an appeal from an original ACAT decision, the proceedings, once removed, are determined by the Supreme Court in its original rather than appellate jurisdiction: Costs Case at [17]. The position is analogous to that in a variety of federal cases which have recognised that although proceedings might be styled as an appeal, they will be in the original jurisdiction of the High Court if they are bringing matters to a court for the first time: Watson v Federal Commissioner of Taxation (1953) 87 CLR 353 at 371; Farbenfabriken Bayer Aktiengesellschaft v Bayer Pharma Pty Ltd (1959) 101 CLR 652 at 657 and Ruhani v Director of Police [2005] HCA 42; 222 CLR 489 at [9], [49], [110], [165], [274].
42. When determining the removed proceedings, the Supreme Court is bound to give effect to the legislative provisions governing the subject matter of the decision. Insofar as the removed proceedings involve an internal appeal, those legislative provisions must be applied in determining the “question of fact or law” the subject of the appeal. On the other hand, it is clear that once the proceedings are removed into the Supreme Court, the procedural powers of the court may be applied for the purposes of determining the removed proceedings. The point in issue in the present case is whether the powers of the court to make a costs order fall into the former or the latter category.
43. For some purposes it has been held that the power to award costs is a matter of practice and procedure: see GJ v AS (No 4) [2017] ACTCA 7 at [56] and the authorities there cited. However that, for the purposes of appeals from judicial decisions or for the purposes of assessing the scope of the rule making power, this characterisation may be adopted does not determine the present issue because the present issue is very much dependent upon specific statutory context and the terms of the provisions involved.
44. The legal practitioner contended that the general costs powers of the Supreme Court remain applicable. The source of the power is, somewhat unusually, in the rule-making power of the court: Court Procedures Act, s 7(1)(b) and Sch 1 item 26: see GJ v AS (No 4) [2017] ACTCA 7 at [35]-[39]. Schedule 1 item 26 identifies the permissible subject matter of the rules in relation to civil proceedings as:
26Costs
costs, including, for example, the following:
(a)security for costs;
(b)entitlement to recover costs;
(c)costs of parties in proceedings;
(d)assessment of costs
27Appeals
appeals, including, for example, the following:
(a) for the Magistrates Court and prescribed tribunals—appeals to the Supreme Court;
(b) for the Supreme Court—
(i) appeals to the Supreme Court other than to the Court of Appeal; and
(ii) appeals to the Court of Appeal
45. There are no “prescribed tribunals” as none have been prescribed in regulations: Court Procedures Act, s 6.
46. Rule 1721(1) provides by necessary implication a power to award costs in civil proceedings. It provides “The costs of a proceeding or of an application in the proceeding are in the discretion of the court.”
47. Rule 5001 picks up and applies to appellate proceedings certain provisions of the rules applicable to civil proceedings. They include the provisions of Pt 2.17 which are those relating to costs and include r 1721.
48. Rule 5051, which determines what proceedings the provisions of Pt 5.3 of the rules apply to, identifies that it applies to “ACT Civil and Administrative Tribunal Act 2008, s 83 (for appeals only) and s 86”. This indicates that r 5051 treats an internal ACAT appeal removed under s 83 in the same way as it would treat an appeal to the court under s 86. That is not obviously correct. However, given that the authority to make rules conferred by the Court Procedures Act covers both “costs” and “appeals” there is an available source of power to make provision for the award of costs whether or not the proceedings are properly characterised as civil proceedings in the original jurisdiction or as an appeal.
49. The level of generality with which r 5052 deals with the powers of the Supreme Court upon any of the “appeals” covered by r 5051 is problematic because the rule pays no attention to the specific provisions that may govern the “appeal”. The rule must be taken as qualified by specific statutory provisions which confine the nature of the appeal: see for example CIC Australia Ltd v ACT Planning and Land Authority [2013] ACTSC 96; 277 FLR 26 at [27]. In a case like the present, where an internal appeal is removed into the Supreme Court, it has been held that the discretion as to whether to treat the internal ACAT appeal as a new application or a rehearing in s 82 of the ACAT Act continues to apply on removal: see Legal Practitioner at [48]-[52]; cf PAAN Investments at [38]-[42]. Obviously the constraints on the admission of further evidence in r 5052(1)(c) would be inconsistent with the operation of s 82 if a decision was made to treat an internal ACAT appeal removed under s 83 as a new application and the provisions of the Act would prevail over the inconsistent rule.
50. However so far as costs are concerned, there is no direct collision between a provision of the LP Act and the power to award costs under the rules. There is, for example, no provision that says that costs may not be awarded on an internal ACAT appeal. Rather, as the Costs Case decided, there is simply the absence of any power to award costs. That means that if the generally applicable power to award costs in r 1721 is to be excluded, it must be impliedly excluded because there is a negative implication from the detailed regime in the LP Act that excludes the power that would otherwise exist under the rules.
51. In my view, the terms of the LP Act are sufficient to create a necessary implication that the general costs power of the Supreme Court is excluded in circumstances where the court is exercising its power to determine an internal ACAT appeal that has been removed pursuant to s 83. That is despite the fact that the Costs Case only determined that the expression “any order it considers appropriate on the appeal” is to be interpreted as not extending to the making of a costs order rather than amounting to a positive prohibition upon the award of costs that could be seen as giving rise to a direct collision with r 1721.
52. The provisions that give rise to this conclusion are ss 416, 433 and 434 of the LP Act:
(a)Section 416 (within Pt 4.5 of the LP Act) contains a power to make orders on an appeal from a decision to dismiss a complaint under s 412; to omit complained about matter that was part of an original complaint from an application to ACAT; or to take action in relation to a complaint under s 413. It does not include a power to award costs and hence, so far as the ACAT is concerned, it has no power either in its original or appellate jurisdiction to make a costs order on such an application or appeal.
(b)Section 433 addresses the costs orders that may be made by the ACAT as part of proceedings commenced under Pt 4.7. It provides a detailed regime of costs rules which depart significantly from either the idea that costs follow the event or that each party should bear its own costs. Rather, it imposes a mandatory rule that the legal practitioner must pay the relevant council’s costs if unsatisfactory professional conduct or professional misconduct is found. That is only subject to an “exceptional circumstances” exception. It then provides a discretionary power to award costs in circumstances where unsatisfactory professional conduct or professional misconduct are not established but where the conditions in s 433(2)(a)-(b) exist. Finally, it provides a power to make a costs order in favour of the legal practitioner if unsatisfactory professional conduct or professional misconduct are not established and “the ACAT considers that special circumstances justify the making of the orders”: s 433(3). Section 433(4) allows the ACAT to make orders on an interlocutory or interim basis. Section 433(5) allows the ACAT to make orders for a stated amount of costs or otherwise specify how the amount is to be determined. Section 433(6) allows the ACAT to “state the terms on which costs must be paid”. The terms of s 433 reflect a self-contained power to award costs. Having regard to the significance of the costs of disciplinary proceedings both to the legal practitioner involved and to the relevant council, the very specific regime of costs must be seen as central to the regulatory scheme.
(c)Section 434 specifically excludes the operation of s 48 of the ACAT Act “in relation to a proceeding under this Act”. Section 48 provides a general rule in ACAT proceedings that each party is to bear its own costs and a limited power to the ACAT to make orders for costs. This exclusion of s 48 reinforces the self‑contained nature of the costs provisions in the LP Act.
53. One of the submissions made by the Council was that the Court Procedures Rules could not override the statutory provisions of the ACAT Act. That submission was based upon what was said in Legal Practitioner at [43]:
43. The removed appeal (or, indeed, a removed application) will, however, attract the statutory provisions applicable to hearings of such proceedings in this Court. Thus, for example, r 5052 of the Court Procedures Rules 2006 (ACT) is made applicable by r 5051. While r 5052(1)(c) may seem somewhat inconsistent with the applicability of s 82 of the ACAT Act, I do not consider that provisions in the Court Procedures Rules can override the statutory provisions in the ACAT Act itself, though they do make, in my view, for some unclarity about the way in which the removal operates.
54. In the circumstances of the present case, to ask whether the Court Procedures Rules can override the statutory provisions of the ACAT Act is to ask the wrong question. Rather, the appropriate question is to ask whether the specific terms of the LP Act which are applicable to the internal ACAT appeal removed into the Supreme Court are such that they preclude the application of the general power to award costs as part of the mechanics of the Supreme Court picked up by reason of the removal into that court.
In my view, when the terms of ss 416, 433 and 434 of the LP Act are considered together and in the context of removal of proceedings, they are sufficient to give rise to an implication that the general costs power in r 1721 is excluded. That proposition may be tested by reference to a situation in which an internal ACAT appeal in a disciplinary matter under Pt 4.7 of the LP Act is removed into the Supreme Court. Because what is being removed is an administrative review proceeding occurring in a particular statutory framework, the effect of removal is to simply substitute the decision-making entity. Thus, where the statute refers to the ACAT making some order or another, upon removal it is the Supreme Court that makes the decision, notwithstanding the terms of the LP Act referring to the decision being made by the ACAT. Upon determining the referred internal appeal under Pt 4.7, the specific terms of s 433 would clearly govern the question of costs. The specificity of the regime in s 433 would preclude the parallel operation of r 1721. There is nothing in s 83 or inherent in the concept of removal of proceedings that would shear off the detailed provisions in Pt 4.7 that must be applied in relation to costs. The prescriptive nature of s 433 is inconsistent with and therefore must exclude, the generally applicable costs provision in r 1721.
56. If that is the position in relation to the removal of an internal appeal under Pt 4.7, then it is not open to conclude that, because s 416 involves merely the absence of a costs power, it remains consistent with the continuing operation of r 1721. Rather, the absence of a grant of power to make a costs order must (notwithstanding the comments referred to at [13] above) be construed in the context of the detailed costs regime in s 433 and the exclusion of ACAT’s general costs power by s 434 as a positive legislative decision to preclude the award of costs by the ACAT when acting under s 416. Having deliberately excluded costs from the orders that may be made under s 416, it would be inconsistent to have r 1721 continue to operate where an internal appeal is removed to the Supreme Court.
57. The end result is that the court does not have power to award costs in a removed ACAT appeal such as this.
Order
58. In order to make it clear that the issue of the costs of the appeal has been finally resolved, the order of the Court will be: There is no order as to the costs of the proceedings.
| I certify that the preceding fifty-eight [58] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop Associate: Date: 15 August 2022 |
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