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Nichols v Legal Services Commissioner (No 2)

 

[2017] QSC 203

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Nichols v Legal Services Commissioner (No 2) [2017] QSC 203

PARTIES:

GEORGE NICHOLS

(applicant)

v

LEGAL SERVICES COMMISSIONER

(respondent)

FILE NO/S:

BS No 3668 of 2015

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

15 September 2017

DELIVERED AT:

Brisbane

HEARING DATE:

3 February 2017

JUDGE:

Douglas J

ORDER:

  1. The decision of the respondent dated 9 September 2016 to not investigate Gordon Lyle Harris and Patricia Keyworth pursuant to a complaint lodged by the applicant on 9 August 2013 be set aside.
  2. The respondent consider the applicant’s complaint against Gordon Lyle Harris and Patricia Keyworth dated 9 August 2013 according to law and taking into account the reasons for judgment in this proceeding delivered on 3 February 2017 and the applicant’s outlines of argument filed on 21 July 2015 and 20 January 2017.
  3. The respondent pay the applicant’s costs of and incidental to the proceedings to be assessed on the standard basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – PARTICULAR CASES – UNREASONABLE CONDUCT OR DELINQUENCY RELATED TO PROCEEDINGS – where the applicant was successful in an application for a statutory order of review of a decision of the respondent – where the respondent declined an offer by the applicant to settle the proceedings two days prior to the hearing – where the applicant did not supply the respondent with a copy of material relied upon by the respondent prior to the respondent making the impugned decision – where the applicant alleges the conduct of the respondent was unreasonable – whether the applicant is entitled to costs on the indemnity basis

Judicial Review Act 1991, s 20

Di Carlo v Dubois [2002] QCA 225

Legal Services Commissioner v Bone [2014] QCA 179

COUNSEL:

M D Martin QC for the applicant

M D Nicolson for the respondent

SOLICITORS:

Mills Oakley for the applicant

Legal Services Commissioner for the respondent

  1. In my judgment delivered 29 August 2017 I ordered that the respondent reconsider the applicant’s complaint according to law.  Since then the parties have filed further written submissions about the form of the order and possible orders for costs that should be made.  The applicant argues that he is entitled to indemnity costs on the basis that the conduct of the respondent has been unreasonable.  My attention was also brought to a letter of 1 February 2017 where the applicant, through his solicitors, offered to settle the proceedings on the basis that the respondent consider the applicant’s complaint according to law with an order for costs on the standard basis, an offer which was rejected. 
  2. The aspects in which the respondent’s conduct was said to be unreasonable focussed on the argument that this was the second occasion that the respondent had failed to consider the applicant’s complaint properly. In undertaking the second investigation, the respondent was said to have erred in respects that were more significant than the first investigation in the sense that he misdirected himself that he needed to make a determination whether the relevant funds were impressed with a trust when that was something for a tribunal which would hear any complaint. The respondent’s conduct was also criticised because of the failure to obtain the reasons of Federal Magistrate Jarrett when making the decision where such a finding that the relevant funds were impressed with a trust had been made.
  3. The award of indemnity costs on the ground of unreasonableness was discussed in Legal Services Commissioner v Bone.[1] The court there adopted statements in the previous decision of Di Carlo v Dubois[2] to the effect that, to enliven the discretion to award indemnity costs, a court is not confined to the situation of an ethically or morally delinquent party but requires some evidence of unreasonable conduct which need not rise as high as vexatious conduct.[3]  The normal focus in determining whether indemnity costs should be ordered is on the conduct in and in respect of the litigation by the party against whom the costs order is to be made.
  4. The respondent submitted that he had not acted unreasonably in response to the application.  The reasons for the decision by Federal Magistrate Jarrett were not referred to by the applicant in his outline of argument dated 21 July 2015 and were only identified in the applicant’s new outline of argument dated 20 December 2016 in a footnote.  A copy of the decision was not then provided to the respondent. 
  5. The senior investigator sought a copy of the reasons of Federal Magistrate Jarrett from the applicant.  His solicitors did not initially provide such a copy and the respondent submits that their failure to provide the reasons in a timely manner justifies a basis as to why there would be no order as to costs in the circumstances, particularly where the applicant has also not been successful in his argument under s 20 of the Judicial Review Act 1991. 
  6. The senior investigator also deposes to the fact that it was difficult for her to find a copy of the decision although she had searched for it because publication of Family Court judgments is often done under a pseudonym.  She read a copy when it was obtained and provided in an email dated 25 January 2017.  Objection was taken to the receipt by me of that affidavit by the applicant in written submissions in reply in this matter but it seems to me that that evidence is relevant to this issue. 
  7. The applicant argues, however, that the main error of the respondent was that identified in para [34] of my earlier reasons and, bearing in mind that that was the second review by the respondent of the issues consequent on its agreement to do that after the first court appearance, that its conduct was unreasonable. 
  8. In circumstances where the applicant has not been wholly successful, not having succeeded in his application for a statutory order of review, and where his solicitors could have facilitated a proper investigation at an earlier stage by providing the reasons by Federal Magistrate Jarrett, I am not persuaded that the respondent’s conduct has been so unreasonable as to justify an order for indemnity costs. The respondent’s submission was that no order as to costs should be made but, in the circumstances where the respondent misunderstood the nature of the decision to be made as highlighted by me in para [34] of the previous decision, and, bearing in mind the nature of the offer made two days before the hearing to settle the proceedings on the basis that the respondent consider the applicant’s complaint according to law with an order for costs on the standard basis, my conclusion is that the applicant should receive his costs on the standard basis but not on the indemnity basis.
  9. If the reasons of Federal Magistrate Jarrett had been provided to the respondent in conjunction with the written submissions that referred to them and the letter of offer had been delivered at an earlier stage, the submissions for the applicant that he receive his costs on an indemnity basis would have been significantly stronger.
  10. Accordingly, I order that:
    1. The decision of the respondent dated 9 September 2016 to not investigate Gordon Lyle Harris and Patricia Keyworth pursuant to a complaint lodged by the applicant on 9 August 2013 be set aside.
    2. The respondent consider the applicant’s complaint against Gordon Lyle Harris and Patricia Keyworth dated 9 August 2013 according to law and taking into account the reasons for judgment in this proceeding delivered on 29 August 2017 and the applicant’s outlines of argument filed on 21 July 2015 and 20 January 2017.
    3. The respondent pay the applicant’s costs of and incidental to the proceedings to be assessed on the standard basis.

Footnotes

[1]  [2014] QCA 179 at [67]-[71].

[2]  [2002] QCA 225.

[3]  See Legal Services Commissioner v Bone [2014] QCA 179 at [70].

Editorial Notes

  • Published Case Name:

    Nichols v Legal Services Commissioner (No 2)

  • Shortened Case Name:

    Nichols v Legal Services Commissioner (No 2)

  • MNC:

    [2017] QSC 203

  • Court:

    QSC

  • Judge(s):

    Douglas J

  • Date:

    15 Sep 2017

Litigation History

Event Citation or File Date Notes
Primary Judgment [2017] QSC 175 29 Aug 2017 Application for statutory order of review granted; respondent's decision set aside; respondent ordered to reconsider applicant's complaint according to law: Douglas J.
Primary Judgment [2017] QSC 203 15 Sep 2017 Form of Orders and Costs
Notice of Appeal Filed File Number: Appeal 9789/17 20 Sep 2017 -
Appeal Determined (QCA) [2018] QCA 158 06 Jul 2018 Appeal and cross-appeal against costs order of Douglas J dismissed: Fraser and McMurdo JJA and Flanagan J.

Appeal Status

{solid} Appeal Determined (QCA)