THE LEGAL PRACTITIONER (Stephen Stubbs) and COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY (Occupational Discipline)
[2011] ACAT 77
•9 November 2011
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
THE LEGAL PRACTITIONER (Stephen Stubbs) and COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY
(Occupational Discipline) [2011] ACAT 77
AA 3 of 2010
Catchwords: OCCUPATIONAL DISCIPLINE – LEGAL PRACTITIONER - re-opening of appeal which was struck out – question of costs when a party proceeded with the appeal even after the party’s solicitor was told about the incompetency of appeal – when a costs order can be made.
List of legislation: ACT Civil and Administrative Tribunal Act 2008, s.83(1)
Legal Profession Act 2006, s.433
List of cases: Buzzle Opeations Pty Ltd v Apple Computer Australia (2009) 74 NSWLR 469
Ezekiel-Hart v Law Society (2010) ACTR 15
The Appellants v The Council of the Law Society of the ACT and the Legal Practitioner [2011] ACTSC 133
Tribunal: Mr Bill Stefaniak, Appeal President
Date of Order: 9 November 2011
Date of Reasons for Decision: 9 November 2011
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 3 of 2010
BETWEEN:
THE LEGAL PRACTITIONER
Appellant
AND:
COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY
Respondent
TRIBUNAL: Mr W G Stefaniak
Appeal President
DATE: 9 November 2011
ORDER
1.
The appellant is to pay the respondent’s costs on a party-party basis;
2.
The costs are to be agreed between the parties, and
3. If no agreement is reached on the quantum, the costs are to be taxed.
………………………………..
Mr W G Stefaniak
Appeal President
REASONS FOR DECISION
- On the 31 March 2010, I struck out an appeal brought by the legal practitioner[1] against the Council of the Law Society of the ACT. The order was that “the appeal is struck out as incompetent”.
[1] This decision was previously anonymised and cited as The Legal Practitioner and Council of the Law Society of the Australian Capital Territory [2011] ACAT 77 pursuant to section 423A of the Legal Profession Act 2006. As the appeal period has ended, the practitioner has now been identified in the citation of this decision. The reasons for decision otherwise remain unchanged from the date of publication.
- I did not make any order at that time as to costs.
- The appeal was before the Tribunal as a result of the appellant, a legal practitioner in a disciplinary matter before the General Division of the Tribunal, who, after the Tribunal had heard evidence and found that he was guilty of a breach of the Legal Profession Act 2006, appealed this finding prior to the Tribunal below resuming to hear evidence on the question of penalty.
- After argument by both sides, I struck out his appeal as incompetent (see, judgment and reasons for decision AA 3 of 2010 dated 31 March 2010).
- As it was agreed by both parties that the matter would proceed to the Supreme Court if an appeal was made at the end of the substantive hearing once the penalty decision was made, I recall my view being that it was likely that the matter would have to be ultimately finalised by the Supreme Court. There may have been other matters also outstanding at the time involving the appellant. It was my view that any cost issue would be taken into account by the Supreme Court and this could cover any costs that might be outstanding to the successful party in relation to any previous ACAT decisions in this matter.
- The Law Society sought to re-open the appeal solely on the question of costs, in July of this year.
- The parties were invited to make written submissions, which they have done.
- The parties were also invited, on 21 September 2011, to make further submissions in relation to the issue, meaning and relevance of the note at the end of section 433(4) of the Legal Profession Act 2006.
- I am satisfied, upon reading the submissions of both parties, that the note is irrelevant to these proceedings and accordingly, I will not canvass that issue any further.
- The issue remains as to whether in this matter, finalised by me on
31 March 2010, I should now award costs.
- The Applicant, in his submissions dated 28 September 2011, stated that section 433(4) of the Act only referred to an Australian lawyer who holds a local practising certificate or interstate practising certificate. He pointed out that he does not hold a practising certificate as at September 2011 and therefore the section did not apply to him. He further pointed out that the section could not apply to the current application that requires a proceeding to be pending before the ACAT and indicated that there are no proceedings pending before the ACAT at all in this matter as by the consent of both parties the matter was referred to the Supreme Court pursuant to section 83(1) of the ACT Civil and Administrative Tribunal Act 2008.
- The legal practitioner is certainly correct as at the situation in July and September this year. However, I have to look at the situation on
31 March 2010. At that time, the penalty part of the proceeding in the General Division of the Tribunal had not been heard. The parties had indicated that the matter would end up in the Supreme Court. There was still some work to do before the ACAT. Effectively, the proceedings dealt with by way of appeal were of an interlocutory or interim basis. Indeed, it is on this basis that I dismissed this appeal as incompetent. The proceedings before the Tribunal in the General Division had not been finalised at that point in time. Accordingly, the relevant time, having regard to the status of the legal practitioner, was
31 March 2011. At that time, he was an Australian legal practitioner who held a local practising certificate and there were proceedings pending before the ACAT in that the penalty part had not been dealt with. The matter did proceed further in May 2010 before ACAT and ultimately ended up in the Supreme Court.
- I have some sympathy for the legal practitioner’s argument in paragraph 14 of his submissions made on 25 August 2011, where he concludes “the matter has progressed on to the Supreme Court and once the appeal is finalised in the Supreme Court the costs order may follow the event there”.
- He further states, in paragraph 10 of this submission, “In my submission section 433(1) – (2) may have been applicable if the matter had not been referred to the Supreme Court as the Tribunal has found that the final hearing was not concluded until the penalty was handed down. As the penalty has been handed down the matter has been concluded by the ACAT.”
- However, as at 31 March 2010, the matter had not been concluded before the ACAT. As the practitioner quite rightly points out in paragraph 10 of his submissions, that occurred later.
- In not deciding the question of costs on 31 March and effectively reserving the same, I did feel that the matter would be proceeding to the Supreme Court and once any appeal was finalised there any costs order would follow the event all the way back down to the General Division of the ACAT, including the interlocutory proceedings in the appeal AA 3 of 2010.
- Effectively, the reasoning of the practitioner here, and indeed what I was thinking at that time, was it would be finalised at the end and if the appeal went against the practitioner the Law Society would be entitled to costs on a party-party basis for the matter on appeal before me (AA 3 of 2010). However, the Law Society is, in my view, entitled to place the issue of costs back before me. Either way, in my view, would be appropriate.
- The Society and the practitioner have a very different interpretation of the cases cited by each other (The Appellants v The Council of the Law Society of the ACT and the Legal Practitioner [2011] ACTSC 133, Ezekiel-Hart v Law Society (2010) ACTR 15 and Buzzle Opeations Pty Ltd v Apple Computer Australia (2009) 74 NSWLR 469 at 479-480). I must say that I have a preference in relation to the interpretation of those cases which is more in line with what the Law Society is proposing than what the practitioner is and accordingly, I adopt the interpretation given by the Law Society in relation to those cases.
- The Law Society in its submissions pressed the view that the practitioner in conducting his appeal before the ACAT Appeal Division proceeded entirely at his own risk. The Society forcefully submitted that the appeal was premature, incompetent and put the Society to the cost of having it struck out and put the Tribunal to the time of having to deal with it.
- I struck out the appeal as incompetent on 31 March 2010. The Society also stated that prior to the hearing of the appeal, they filed submissions which they attached in this particular matter as well. Those submissions were dated
17 March 2010. They stated that the Society corresponded with the then solicitors for the practitioner pointing out the incompetency of the appeal and despite this, the practitioner persisted with his appeal which he subsequently lost. There is much strength in their argument that it would be unjust for the Society in those circumstances to bear their own costs of successfully having the appeal struck out as incompetent.
- It is a commonly accepted principle of law in the ACT and indeed in civil matters generally in Australia that where there is a power to order costs in general terms similar to section 433, the usual rule is that costs follow the event. Indeed in the ACT for non-indictable matters, it is also found in the Magistrates Court Act for criminal matters that do not end up in a trial before the Supreme Court.
- Given that the note at the end of section 433(4) is not relevant, it is my view that in all the circumstances of this case, costs should follow the event. Whilst I am not overly fussed as to whether this occurs after all the Supreme Court matters are dealt with or now, in my view, as the point has been now raised by the Law Society as the successful party in AA 3 of 2010, it would be wrong of me not to adhere to their requests that the costs order should be made.
- If there are matters still before the Supreme Court and if the practitioner is successful in them, no doubt this order will be reversed and the practitioner would be the beneficiary. However, the general rule should apply. It applies equally in interlocutory and preliminary matters as it does to matters that are finalised (see, the very clear statement in section 433(4) “The ACAT may make orders requiring an Australian legal practitioner in relation to whom a proceeding is pending before the Tribunal to pay costs on an interlocutory or interim basis”.).
- Accordingly, I find that the Law Society is successful in its application for costs. An order will be made that the practitioner in this case, the unsuccessful appellant in AA 3 of 2010, shall pay the costs of the Law Society on a party-party basis. Costs are to be agreed between the parties and if not, costs are to be taxed.
………………………………..
Mr W G Stefaniak
Appeal President
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO:
APPELLANT: THE APPLICANT
RESPONDENT: COUNCIL OF THE LAW SOCIETY OF THE
AUSTRALIAN CAPITAL TERRITORY
COUNSEL APPEARING: APPELLANT:
RESPONDENT: N J Beaumont
SOLICITORS: APPELLANT:
RESPONDENT: PhelpsReid
OTHER: APPLICANT:
RESPONDENT:
TRIBUNAL MEMBER: Mr W G Stefaniak, Appeal President
DATE/S OF HEARING: PLACE: CANBERRA
DATE/S OF DECISION: 9.11.11 PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
2
2
0