Warren v Queensland Law Society Incorporated (No 2)
[2013] QCAT 234
•21 May 2013
| CITATION: | Warren v Queensland Law Society Incorporated (No 2) [2013] QCAT 234 |
| PARTIES: | Alexia Warren (Applicant) |
| v | |
| Queensland Law Society Incorporated (Respondent) |
| APPLICATION NUMBER: | OCR159-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 21 May 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Alexia Warren must pay the Queensland Law Society Incorporated costs of and incidental to her application, including reserved costs. 2. That those costs be assessed by Paul Garrett of Hickey and Garrett Legal Costs Consultants, using the Supreme Court scale of costs under the Uniform Civil Procedure Rules 1999. |
| CATCHWORDS: | PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – COSTS – where the applicant’s practising certificate was cancelled by the respondent – where the applicant sought an order that the respondent’s decision to cancel the practising certificate be set aside – where the application was refused – where the respondent now seeks costs – where each party usually bears their own costs – where the an order against a party for costs may be made if the Tribunal considers the interests of justice require such an order – whether a costs order against the applicant should be made Legal Profession Act 2007 (Qld), s 61(3)(b), s 679 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 87 Jamieson v Body Corporate for Paradise Island Apartments [2011] QCA 80, cited |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Ms Warren, a legal practitioner, applied to QCAT to review a decision of the Council of the Queensland Law Society (‘the Society’) to cancel her practising certificate on 28 June 2011. Her application failed, and the Society now seeks costs.
The decision to cancel was based upon her alleged failure, since about mid-August 2009, to pay $22,500.00 owed to her professional indemnity insurer after it had settled a claim against her by a former client whose action for damages for personal injury was struck out.
After receiving notice of the cancellation she promptly paid the sum and was then granted a practising certificate which she still holds. She was, then, without a certificate for a period of three days.
Her application to review the Society’s decision was brought under s 61(3)(b) of the Legal Profession Act 2007 (Qld) (‘LPA’).
It was heard on 4 October 2012. After the hearing the parties, by direction, exchanged written submissions. In a decision handed down on 12 March 2013 I refused her application and, also, made orders in response to the Society’s submission that it wished to seek costs.[1] The Society filed submissions on 3 April 2013. Under the order Ms Warren was at liberty to file and serve submissions in reply within 21 days after she received the Society’s submissions. She has not filed any submissions.
[1]Warren v Queensland Law Society Incorporated [2013] QCAT 115.
The Society seeks an order that Ms Warren pay its costs of the entire review proceeding, to be assessed by a nominated costs assessor on the Supreme Court scale of costs.[2]
[2]See Schedule 1 of the Uniform Civil Procedure Rules 1999 (Qld).
The LPA is silent about costs of the kind sought.
The Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) turns its face against costs in proceedings before the Tribunal: s 100 says – ‘Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceeding’.
Under s 102(1), however, the Tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another ‘… if the tribunal considers the interests of justice require it to make the order’.
Section 102(3) suggests certain matters to which the Tribunal may have regard if it is asked to make a costs order. They include whether a party to a proceeding has acted in a way that unnecessarily disadvantages another party; the nature and complexity of the dispute; the relative strengths of the claims made by each of the parties; their financial circumstances; and, relevantly here, if the proceeding involves a review of a reviewable decision: whether the applicant was afforded natural justice by the decision maker, and whether the applicant genuinely attempted to enable and help the decision maker to make the decision on the merits.
It has previously been said in this Tribunal that the provisions of the QCAT Act about costs, mentioned above, require that when considering an application for costs the Tribunal should ask itself whether the circumstances relevant to the discretion inherent in the phrase in s 102(1) ‘the interests of justice’ point so compellingly to a costs award that they overcome the strong contra-indication against costs in s 100.[3]
[3]Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 at [29] – an approach not queried by the Court of Appeal in Jamieson v Body Corporate for Paradise Island Apartments [2011] QCA 80.
The Society’s submissions rely upon the discretionary considerations set out in s 102(3) as matters which, upon consideration, warrant a costs order against Ms Warren here. For the reasons which follow, I agree.
Acting in a way that unnecessarily disadvantages another party
Ms Warren began her review proceeding on 26 July 2011. Later that year, on 21 October, directions were made by the Tribunal requiring, first, that she file and serve affidavits from all witnesses upon whom she proposed to rely by 12 December 2011, with the Society to file and serve its affidavits by 23 January 2012. Numerous extensions for the filing of Ms Warren’s material were sought by her, and granted. Ultimately, in the face of continuing delay the Tribunal listed the matter for another directions hearing on 1 May 2012 and directed, again, that she file and serve her witness affidavits by 21 May 2012.
She did not do so. On 23 May 2012 she filed and served some material, but indicated that she also had additional material to file and serve. At a third directions hearing on 28 May 2012 the Society was directed to file and serve its material by 6 June 2012, and the parties were then required to attend a compulsory conference on 25 June 2012 followed by a hearing set for 17 August 2012.
At Ms Warren’s request the date for the compulsory conference was vacated and relisted for 3 July 2012. At the conference Ms Warren sought and was granted permission, by direction, to file still further material by 20 July 2012. She did so on 23 July 2012.
At the allocated hearing date on 17 August 2012 she sought an adjournment, which was granted, but costs were reserved. The matter was then listed for a hearing on 4 October 2012. Ms Warren again sought an adjournment, which was refused, and the hearing proceeded and took a full day.
At the conclusion of the hearing further directions were given requiring Ms Warren to file and serve written submissions by 19 October 2012. After two further extension of time she eventually filed them on 21 November 2012.
In summary, despite numerous directions hearings, Ms Warren did not apprise her opponent of her evidence and the full detail and nature of her case until 23 July 2012, almost a year after her application was filed.
As the Society’s submissions point out, however, these delays in the proceeding itself do not signify general inaction on Ms Warren’s part. Affidavits filed on the Society’s behalf show 13 communications from her to the Society in the period between 21 October 2011 and 2 April 2012, and a large amount of further correspondence between the parties between that date and 22 November 2012.
Further, in that correspondence Ms Warren made a number of allegations of serious misconduct against the Society’s officers and individual members of its Office of General Counsel. These allegations included misleading the Tribunal, making deliberately false statements and tampering with or destroying evidence. None of these allegations were proven at the eventual hearing.
Considerable delay in the matter, including delay because of adjournment, was all caused by Ms Warren. This factor must weigh against her in the discretionary exercise surrounding the application for costs.
The relative strengths of the claims made by each of the parties
As the Tribunal’s Reasons show, Ms Warren’s case for review was weak. She did not lead any evidence as to the merits of the Society’s decision, and her entire case was based on technical and procedural contentions which were found to be without substance.
In particular, she alleged that the first time the Society raised, with her, the outstanding payment she had allegedly failed to make to her professional indemnity insurer was on 1 July 2007; that she did not receive any, or any adequate, warning of the risk that the Society might cancel her practising certificate, if she did not pay that amount; that she did not receive a show cause notice from the Society in April 2011; that an error in the postcode in an envelope containing the show cause notice sent by registered mail to her practice address meant the notice was ineffective; and, that she had never agreed to receive communications from the Society by email.
As explained in the Reasons, none of these contentions were established and all were found to be without substance or, in the case of the receipt of the show cause notice, entirely unsustainable in the face of overwhelming evidence to the contrary which was largely under Ms Warren’s own hand.
Nevertheless the Society was compelled by her serious and diverse allegations against it and its officers to obtain, prepare and file affidavits from six current and former officers all of whom were required, by Ms Warren, for cross-examination at the hearing (and five of whom were cross-examined by her).
The Society submits that it was apparent, at the hearing, that Ms Warren’s very serious allegations against the Society’s officers were merely speculative. I accept that, as the Reasons illustrate, this is a fair and reasonable categorisation of them.
It is compelling that Ms Warren’s case was always weak, and that she should not have pursued it; and, that she aggravated a weak case with spurious and, as it transpired, unsustainable allegations against Society staff.
The nature and complexity of the dispute
Recognising that the nature and complexity of the dispute was such as to warrant legal representation, the Tribunal, on 21 October 2011, granted leave for the parties to be legally represented.
That conclusion was reached in large part because of the volume of the material filed by Ms Warren, and the very serious allegations of misconduct she had already made.
The Society provided written submissions, after the hearing on 4 October 2012, which were 15 pages in length. Their size was, I accept, necessary because of the nature and breadth of Ms Warren’s allegations. (Her submissions were 16 pages, plus attachments.)
The proceedings are also, it appears, of some novelty. I accept that the Society’s response required research into comparable decisions in other jurisdictions. It also required the Society to consider and respond to detailed factual aspects of its operations and things like the operation of postal services, email, and computer software programs.
Distilled to its essence, Ms Warren’s case was relatively straightforward: she alleged the Society had acted peremptorily, and without fair warning or a proper opportunity for her to respond. As she conducted her case, however, the matter became complex, and hydra-headed.
In that light, this factor also tells against her when the discretion to award costs comes to be considered.
Natural justice by the Society?
The Tribunal’s Reasons show that the Society allowed Ms Warren ample opportunity, over several years, to be heard as to the substance of the matters that were put before its Council in making the decision the subject of review.
In particular, the Society had granted Ms Warren a number of extensions of time for submissions between April and June 2011 during which, although she frequently communicated that she was preparing material to submit, she made no submission.
Materially, despite those extensions it is inescapable that Ms Warren did nothing to enable or help the Society’s Council to make the decision on the merits. Again, this factor weighs against her in the costs argument.
Financial circumstances of the parties
The Society is a body corporate established under s 4 of the Queensland Law Society Act 1952 (Qld) and it continues in existence under s 679 of the LPA. It consists of individuals, enrolled as members. It has statutory responsibilities, and collects fees from its members to cover the costs of its regulatory functions. If the Society is unable to recover costs they will have to be met indirectly by all local practitioners, through their fees for practising certificates.
Ms Warren has not adduced any evidence as to her personal financial position. She is a legal practitioner in private practice, as a principal. As the Society’s submissions point out she has cited, on a number of occasions, her busy practice and obligations to clients in respect of pending court matters as grounds for seeking extensions of time or the adjournment in the Tribunal of a compulsory conference, and two hearings. She sought an adjournment on that basis on the morning of the hearing on 4 October 2012.
Any other relevant matters
The Tribunal found that by mid-August 2009 Ms Warren was well aware of her obligation to pay the specified sum to her professional indemnity insurer, and the consequences if she failed to pay. The matter related directly to her professional practice as a lawyer.
The Society’s submissions also point to the fact that from time to time Ms Warren asserted, in correspondence to the Society, that she would be seeking an order that the Society pay her costs of the proceedings, including on an indemnity basis.
It may fairly be assumed that, in making that assertion, she was attempting to apply her professional skill in assessing her prospects, and to the general conduct of the proceedings she pursued on her own behalf. It is not too great a leap to infer that, applying her expertise, she should also have appreciated that if she failed to persuade the Tribunal to ‘invalidate’ the Society’s decision then she may, herself, be exposed to a costs order.
Conclusion
Ms Warren has pursued proceedings which had little apparent merit and, on any realistic assessment, poor prospects and has done so in a way which has greatly added to the costs of her opponent.
In sum, the factors considered above, focusing as they do on the matters the legislature considered might be useful and relevant in deciding whether the interests of justice should lead to a costs order, are strongly persuasive that such an order is appropriate in this case.
Order
Under s 107 the Tribunal must, if it makes a costs order, ‘fix the costs if possible’. If that is not possible the Tribunal may make an order requiring that costs be assessed under the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘QCAT Rules’), by reference to a scale.[4] In light of the size of the Tribunal file and the complexity of the matter, I accept that this is not an appropriate case to attempt assessment, and the fixing of costs, itself.
[4]QCAT Act ss 107(2)–107(3).
Under r 87 of the QCAT Rules, costs must be assessed by an assessor appointed by the Tribunal and, if a direction is also made that the costs be assessed by reference to the scale of costs applying to a court, the Tribunal should give directions about that scale.
The Society seeks a direction that costs be assessed by Mr Paul Garrett of Hickey and Garrett Legal Costs Consultants. It is submitted that the limited internal resources of the Society do not extend to a person or persons experienced in costs assessment, and that the expertise of a legally qualified costs assessor is reasonably necessary to determine the recoverable costs of the work undertaken on the part of the Society. That submission is unsurprising and, with respect, plausible.
A direction is also sought that the costs be assessed by reference to the Supreme Court scale under the Uniform Civil Procedure Rules 1999. That direction is sought on the grounds that, before the introduction of the QCAT Act, reviews of decisions of the Council were only available by way of judicial review in the Supreme Court. I am also reminded that, recognising this historical context, QCAT’s President (a Supreme Court Judge) was appointed to hear and determine Ms Warren’s application. In those circumstances, the scales applying in the Supreme Court are appropriate.
I am, for these reasons, persuaded that it is appropriate to make an order that Ms Warren pay the Society’s costs of and incidental to her application, including reserved costs, with those costs to be assessed by reference to the Supreme Court scale under the Uniform Civil Procedure Rules 1999 and by Mr Paul Garrett of Hickey and Garrett Legal Costs Consultants.
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