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Graham v Legal Services Commissioner[2015] QCA 6

Graham v Legal Services Commissioner[2015] QCA 6

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO:

QCAT No 27 of 2012

Court of Appeal

PROCEEDING:

Case Stated – Further Order

ORIGINATING COURT:

DELIVERED ON:

6 February 2015

DELIVERED AT:

Brisbane 

HEARING DATE:

Heard on the papers

JUDGES:

Fraser and Gotterson JJA and Philippides J

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The appellant pay the respondent’s costs of the case stated.

CATCHWORDS:

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – NATURE OF PROCEEDINGS – PUBLIC DUTY INVOLVED – where the appellant argued that the general rule that costs follow the event should be departed from because the litigation was brought to advance the public interest – whether the litigation was in the public interest

Graham v Legal Services Commissioner (No 2) [2014] QCA 306 , cited

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11, cited

COUNSEL:

No appearance by the appellant, the appellant’s submissions were heard on the papers

No appearance by the respondent, the respondent’s submissions were heard on the papers

SOLICITORS:

Bartley Cohen for the appellant

Legal Services Commissioner for the respondent

[1] FRASER JA:  The respondent brought disciplinary proceedings in the Queensland Civil and Administrative Tribunal alleging that the appellant, a legal practitioner, had failed to maintain reasonable standards of competence and diligence in relation to his conduct of a costs assessment.  Upon the appellant’s application, which the respondent did not oppose, the Tribunal referred a question of law to the Court of Appeal.  The substance of the question was whether s 93LA of the Supreme Court of Queensland Act 1991 rendered the appellant immune from the application of the provisions for the discipline of legal practitioners in Ch 4 of the Legal Profession Act 2007.  (Section 93LA, which has since been re-enacted as s 77 of the Civil Proceedings Act 2011, provided that, “in performing the functions of costs assessor, the person appointed as a costs assessor has the same protection and immunity as a judge performing the functions of a judge.”)  The Court answered the question in the negative and gave leave to the parties to make submissions about costs.[1]

[2] The submissions for both parties acknowledged the guideline (the “general rule”) that costs follow the event unless a good reason is shown for a different order.[2]  The appellant argued that a different order was appropriate because this was “public interest” litigation.[3]  The appellant relied upon the following observations by Kirby J in Oshlack v Richmond River Council:[4]

“…a discrete approach has been taken to costs in circumstances where courts have concluded that a litigant has properly brought proceedings to advance a legitimate public interest, has contributed to the proper understanding of the law in question and has involved no private gain.  In such cases the costs incurred have occasionally been described as incidental to the proper exercise of public administration.  Upon that basis it has been considered that they ought not to be wholly a burden on the particular litigant.”

[3] It may be said that the resolution of the point raised by the appellant has contributed to the proper understanding of the law in question, but it is not easy to accept that the proceeding in this Court was brought to advance the public interest or that it involved no private gain.  The appellant acted in his own interests in promoting the referral of the question of law and advocating that he was immune from disciplinary proceedings of the kind brought against him.  I would not characterise the litigation in the Court as “public interest” litigation which justifies departure from the usual approach that costs follow the event.  Nor is a different approach justified by the circumstances that the respondent did not oppose the appellant’s application to refer the question of law to this Court and that the respondent had an interest, which might be regarded as corresponding with a public interest, in the issue being resolved.

[4] I would order that the appellant pay the respondent’s costs of the case stated.

[5] GOTTERSON JA:  I agree with the order proposed by Fraser JA and with the reasons given by his Honour.

[6] PHILIPPIDES J:  I agree with the reasons of Fraser JA and with the order proposed.

Footnotes

[1] Graham v Legal Services Commissioner (No 2) [2014] QCA 306.

[2] See Oshlack v Richmond River Council (1998) 193 CLR 72 at [35].

[3] It was not contended that this was a test case which justified a different costs order.

[4] (1998) 193 CLR 72 at [136] (citation omitted).

Close

Editorial Notes

  • Published Case Name:

    Graham v Legal Services Commissioner

  • Shortened Case Name:

    Graham v Legal Services Commissioner

  • MNC:

    [2015] QCA 6

  • Court:

    QCA

  • Judge(s):

    Fraser JA, Gotterson JA, Philippides J

  • Date:

    06 Feb 2015

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2013] QCAT 55216 Oct 2013Mr Graham, a costs assessor, was disciplined by being publicly reprimanded and ordered to pay a pecuniary penalty to the applicant of $1,500: Justice Alan Wilson President.
Primary Judgment[2014] QCAT 22322 May 2014Mr Graham was ordered to pay the applicant's costs of the disciplinary proceedings: Justice Alan Wilson President.
QCA Original Jurisdiction[2014] QCA 30628 Nov 2014Referral under s.118(1) Queensland Civil and Administrative Tribunal Act 2009 of a question of law which arose in proceedings before QCAT in the form of a case stated under r 781 UCPR. Whether costs assessor had immunity from professional misconduct. Answer - No: Fraser JA, Gotterson JA, Philippides J.
QCA Original Jurisdiction[2015] QCA 606 Feb 2015Appellant ordered to pay the respondent’s costs of the case stated: Fraser JA, Gotterson JA, Philippides J.
Appeal Determined (QCA)[2014] QCA 30528 Nov 2014Appeal from [2013] QCAT 552 dismissed: Fraser JA, Gotterson JA, Philippides J.

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Graham v Legal Services Commissioner (No 2) [2014] QCA 306
2 citations
Oshlack v Richmond River Council (1998) 193 CLR 72
3 citations
Oshlack v Richmond River Council (1998) HCA 11
1 citation

Cases Citing

Case NameFull CitationFrequency
Lonergan v Stilgoe (No 2) [2020] QSC 1462 citations
Scriven v Queensland Rural and Industry Development Authority (No 2) [2019] QSC 2631 citation
1

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