Legal Services Commissioner v Pennisi
[2017] QCAT 126
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- Unreported Judgment
- Legal Services Commissioner v Pennisi[2017] QCAT 126
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Legal Services Commissioner v Pennisi[2017] QCAT 126
Legal Services Commissioner v Pennisi[2017] QCAT 126
CITATION: | Legal Services Commissioner v Pennisi [2017] QCAT 126 |
PARTIES: | Legal Services Commissioner (Applicant) v Vincent Pennisi (Respondent) |
APPLICATION NUMBER: | OCR067-16 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | 11 April 2017 |
HEARD AT: | Brisbane |
DECISION OF: | Justice D G Thomas, President |
DELIVERED ON: | 27 April 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – FILING DOCUMENTS AND ACCESS THERETO – where applicant filed further submissions without direction of Tribunal or consent of respondent – where respondent objects to those submissions being placed before the Tribunal – whether Tribunal should have regard to those submissions COSTS – ASSESSMENT OF COSTS – where respondent sought order that the costs associated with the applicant’s further submissions be excluded from any costs order in favour of the applicant for the matter – where respondent sought order that the costs associated with the hearing requested as a result of the further submissions be excluded from any costs order in favour of the applicant for the matter – whether those costs should be excluded from any costs order in favour of the applicant for the matter Australian Solicitors Conduct Rules 2012 r 22 Queensland Civil and Administrative Tribunal Act 2009 ss 3, 4, 24, 28, 95 Legal Services Commissioner v Bosscher (No 2) [2016] QCAT 413 Legal Services Commissioner v Delaney [2015] QCAT 270 |
APPEARANCES: |
|
APPLICANT: | M R Lester for the Legal Services Commissioner |
RESPONDENT: | B Cohen of Bartley Cohen Law for Mr Pennisi |
REASONS FOR DECISION
- [1]The respondent, Mr Pennisi, filed an application for miscellaneous matters on 8 February 2017 seeking a further directions hearing in the matter. The respondent sought orders that the hearing took place on 11 April 2017.
- [2]At the hearing, the respondent sought further orders that:
- The submissions filed by the Commissioner on 7 February 2017 not be viewed by the Tribunal;
- Costs of the submissions filed on 7 February 2017 and the costs associated with the hearing on 11 April (including the submissions handed up at the hearing) be excluded from any costs order made in favour of the respondent.
Background
- [3]At an earlier directions hearing which took place on 13 December 2016, the following directions were made by consent:
- The parties are to file in the Tribunal four (4) copies of an agreed statement of facts, by:
4:00pm on 20 December 2016.
- The Legal Services Commissioner is to file in the Tribunal four (4) copies and give to Vincent Pennisi one (1) copy of his submissions as to characterisation of conduct and sanction, by:
4:00pm on 30 January 2017.
- Vincent Pennisi is to file in the Tribunal four (4) copies and give to the Legal Services Commissioner one (1) copy of his submissions as to characterisation of conduct and sanction, by:
4:00pm on 13 February 2017.
- The matter is to be listed for a hearing on the papers after 14 February 2017.
- [4]Without further reference to, or directions being made by, the Tribunal, the applicant filed further submissions on 7 February 2017.
- [5]The respondent objects to those further submissions and submits that:
- The Tribunal should not have regard to those submissions; and
- The costs of preparing the submissions and costs associated with the hearing on 11 April 2017 should be excluded from any costs order which is made in favour of the applicant.
Submissions by Mr Pennisi
- [6]The further submissions ought not to have been filed and served without leave of the Tribunal or consent by the solicitors for Mr Pennisi.
- [7]Neither was obtained.
- [8]Section 95 of the Queensland Civil and Administrative Act 2009 (Qld) (‘QCAT Act’) does not permit the Commissioner to file further material without leave or consent. Section 95 QCAT Act is no more than a “procedural fairness” provision.
- [9]The filing of the submissions was not agreed, and the submissions should be disregarded. In addition, any costs associated with the further submissions and the costs associated with the hearing on 11 April 2017, should be excluded from any costs order in the Commissioner’s favour.
Submissions of the Legal Services Commissioner
- [10]In the submissions by the respondent dated 30 January 2017, the following submission was made regarding costs in the final paragraph:
“In previous cases like this one, costs have been fixed in amounts in the order of $1,500 and unless the applicant wishes to submit to the contrary that is the appropriate order here.”
- [11]As the Commissioner did not agree as to the quantum of costs, the Commissioner did “wish to submit to the contrary” and, as invited by the respondent in the submissions, the Commissioner responded by way of the further submissions which were filed on 7 February 2017.
- [12]In the further submissions, the Commissioner also addressed the issue of penalty in view of the fact that, in the respondent’s submissions, the following was included:[1]
“In substance the respondent has already suffered a financial penalty in that amount, which is substantially in excess of that which the applicant now submits ought to be imposed upon him. The applicant’s submissions do not make reference to the amount already paid.”
- [13]The Commissioner felt it necessary to respond to the final comment in that paragraph.
- [14]The further submissions were filed and served in accordance with the requirements of the QCAT Act.
- [15]There is no rule requiring leave of the Tribunal or consent of the other party to file further submissions in reply to submissions (particularly when invited to do so).[2]
- [16]As is required by section 28 QCAT Act, the Commissioner should provide a response where the respondent has made submissions that were not canvassed or contemplated by the Commissioner.
- [17]The further submissions equate to relevant material that should be disclosed to the Tribunal to enable it to decide proceedings with all the relevant facts. Section 28(4) QCAT Act is relevant.[3]
- [18]The rules of natural justice require that the applicant should not be denied the opportunity to respond to the respondent’s submissions where the applicant does not agree with those submissions.[4]
- [19]Section 95 QCAT Act provides that the Tribunal must allow the applicant a reasonable opportunity to make submissions.[5]
- [20]The respondent invited the applicant to respond to the submissions.[6]
- [21]Having regard to sections 24 and 95 QCAT Act, the Commissioner does not consider he requires leave in order to file the further submissions. This has occurred in other cases before QCAT.[7]
- [22]It was appropriate and prudent that the Commissioner file further submissions to formally place the position before the Tribunal, in particular, given that the Commissioner has been the subject of comment by the Tribunal for not putting forward relevant matters for consideration.[8]
- [23]In relation to the submission that the Commissioner is, by filing the further submissions, in breach of rule 22 of the Australian Solicitors Conduct Rules 2012 (‘ASCR’), the Commissioner submits that “the submissions were filed in the registry and served on the respondent on the same day. The respondent’s contention that his consent was required to file the submissions is unsustainable.[9]
- [24]The Commissioner also refers to the model litigant principles. The Commissioner’s further submissions were required to be filed to correct the record as to the “financial penalty” issue, and to reply to the submissions that the costs should be fixed as suggested by the respondent instead of at the figure actually incurred in the course of the proceedings.[10]
Submissions in response by Mr Pennisi
- [25]It is incorrect that the Commissioner may, at any time, and without consent of the other party or leave of the Tribunal, provide more submissions and more evidence.
- [26]Rule 22 ASCR applies to the legal practitioners employed by the Commissioner.
- [27]Even if the last sentence of the respondent’s submissions were construed as an invitation, the appropriate response would have been for the Commissioner to seek the consent of the solicitors for the respondent to communicate with the Tribunal, “and there could have been no objection to that communication”.[11]
- [28]
Disposition
- [29]The objects of the QCAT Act include “to have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick.”[14]
- [30]To achieve the objects of the Act, the Tribunal must ensure proceedings are conducted in an informal way that minimises costs to parties, and is as quick as is consistent with achieving justice.[15]
- [31]I have previously made reference to the way in which these objects are put into effect in the various jurisdictions which fall within the broad areas of responsibility of the Tribunal.[16]
- [32]The level of informality which may be appropriate in some jurisdictions may be less appropriate in others.
- [33]Because of the subject matter of the legal disciplinary jurisdiction, more formality is appropriate.
- [34]
“The objects of the QCAT Act include to have the Tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick. Various provisions deal with the way in which the Tribunal must approach its functions. These include to ensure that proceedings are conducted in an informal way which minimises costs to parties and is as quick as is consistent with achieving justice. The Tribunal is not bound by the rules of evidence or any practices or procedures applying to courts of record, and may inform itself in any way it considers appropriate. The Tribunal must act with as little formality and technicality and with as much speed as the requirements of the Act and a proper consideration of the matters before the Tribunal permit.
The effect of these provisions is that the same level of rigour as might be expected in proceedings in a court, are often not required in matters before the Tribunal. For example, pleadings, common in the Court setting, are not required generally in the Tribunal.
Whilst that is the general approach, in some jurisdictions within the Tribunal more formality is required because of the nature of the proceedings. One such example is in the area of legal disciplinary matters…”
- [35]The Commissioner has made reference to sections 28 and 95 of the QCAT Act.
- [36]The Commissioner is correct that:
- So far as practicable, the Tribunal must ensure that all relevant material is disclosed to the Tribunal to enable it to decide the proceedings with all the relevant facts.
- Moreover, the Tribunal may admit into evidence the contents of any documents despite the non-compliance with any time limit or other requirement of the Act, an enabling Act or the Rules relating to the document or the service of it.
- The rules of natural justice require that neither party should be denied the opportunity to respond to the others’ submissions.
- Pursuant to section 95, the Tribunal must allow a party to the proceedings a reasonable opportunity to make submissions to the Tribunal.
- [37]It is not for the respondent to decide whether the applicant is entitled to respond to the submissions. Equally, it is not a matter for the applicant to decide those issues.
- [38]The sections to which the Commissioner refers are statements of principle as to the opportunities which must be afforded to parties to proceedings before QCAT so as to ensure that, as is contemplated by section 28(2) QCAT Act, in all proceedings the Tribunal must act fairly and according to the substantial merits of the case.
- [39]It is the Tribunal, and not the parties, which determines the procedure which will be adopted to enable each of the parties the opportunity to make submissions and so the proceedings are conducted in an orderly, efficient and fair way.[18] It is important not to confuse the existence of the rights identified by the Commissioner with the method by which those rights are provided.
- [40]Section 28(3) sets out matters relating to the conducting of a proceeding.
- [41]In the legal professional disciplinary proceedings, matters are case-managed with very regular directions hearings. At those directions hearings, the procedures for a proceeding are fixed. These procedures include the steps which must be taken by the parties to the proceedings.
- [42]The steps follow a logical sequence and are designed towards the objective of achieving as much speed as proper consideration of matters will allow,[19] and also so as to ensure that as far as is practicable all relevant material is disclosed to the Tribunal to enable it to decide the proceedings with all the relevant facts.[20] Imposition of this procedure by the Tribunal means that each side is informed of the counter position, is not taken by surprise, and is allowed an adequate opportunity to respond.
- [43]A party cannot depart from the steps which are directed to be taken without a further order of the Tribunal. This includes taking additional steps. In those circumstances, the Tribunal should be approached so that the matter can be listed for consideration at a directions hearing when each party has the opportunity to be heard as to proposals made by the other party.
- [44]This is well known to the Commissioner.
- [45]This process affords natural justice to both parties and allows matters to proceed in an orderly and efficient fashion.
- [46]This does not detract from the underlying objectives to provide natural justice and a fair hearing, but rather enhances these aims and ensures that these objectives are achieved.
- [47]The model litigant policy does not alter this position. Insofar as the model litigant policy would require that the applicant file further submissions, the appropriate course is to list the matter for directions to obtain necessary orders from the Tribunal after each party is heard in relation to the issue. Following the required steps does not erode the importance of the model litigant policy.
- [48]Where the parties are able to agree on amended directions, the practice has developed in the Tribunal that consent orders may be submitted and on most occasions, orders are made to facilitate the needs of each of the parties, without the need to appear and attend the directions hearing. This accords with the object that the matters proceed in a way which is accessible, economical, informal and quick.
- [49]As to the procedures followed by the Tribunal, the Commissioner is in no different position (even taking account of the model litigant policy) from any other person who is a party to legal disciplinary proceedings.
- [50]All parties have the opportunity to canvass all issues, but subject to the discretion of the Tribunal as to the procedures that are adopted in the proceedings and the requirements of the QCAT Act.
- [51]In this case, the Commissioner should have sought a direction from the Tribunal as to the filing of additional submissions. That would have allowed the respondent, had he so wished, to make submissions.
- [52]Mr Cohen appropriately concedes that had he been approached to consent to the communication which took place (the filing of the further submissions) “there could have been no objection to that communication”.[21] It would follow in those circumstances that a direction would most likely have been made (likely by consent and without the need for lengthy argument) allowing the submission to be filed, insofar as it was a submission and not further evidence. The need for the hearing might have been avoided.
- [53]The question of whether the respondent invited the further submissions is confused by reference to the final words of the submissions dated 30 January 2017.
- [54]The final words seem to invite a conclusion that the appropriate order should be to fix costs at a specified amount of $1500, “unless the applicant wishes to submit to the contrary”.
- [55]This seems to ignore the earlier submission by the applicant but certainly appears to invite the applicant to make a submission if the applicant were not in agreement with the proposed order that costs be fixed in the order of $1500. Why else would those words be included?
- [56]It is understandable, in those circumstances, that the applicant wished to make the submission. Because of the wording used by the respondent, the applicant could, not unreasonably, have believed that the respondent consented to the filing of a further submission.
- [57]However, in the context of the way in which proceedings are conducted in the legal disciplinary jurisdiction, the applicant should have sought to agree a consent direction order or, if necessary, have approached the Tribunal for directions.
- [58]Given the concession made at the hearing by Mr Cohen, it is now very obvious that there could have been no objection to that communication, and it is likely the matter could have been dealt with by way of a consent direction. This would not have necessitated the preparation for, and attendance at, the hearing on 11 April 2017.
- [59]In the circumstances, it seems inevitable that, because of the contents of the final paragraph of the submissions dated 30 January 2017, further submissions would have been filed by the Commissioner. Under those circumstances, no order should be made to the effect that the further submissions should be ignored or that the costs associated with the submissions should be excluded.
- [60]However, the lengthy application which was argued on 11 April 2017, arose because the further submissions were filed without seeking appropriate directions, and would likely otherwise not have taken place in the way in which it did. Mr Cohen has referred to the decision in relation to costs in the matter of Legal Services Commissioner v Bosscher.[22] Mr Cohen did not make any detailed submissions.
- [61]In that case, the Tribunal was asked to make no order as to costs in favour of the Commissioner on the basis of “exceptional” circumstances,[23] as identified by the respondent in that case.
- [62]The Tribunal decided that the circumstances identified were not “out of the ordinary course, unusual, special or uncommon”.[24]
- [63]In Bosscher, an Investigation Report had been prepared which was found to have been based upon a fundamental misunderstanding of the facts and which was inaccurate.[25]
- [64]The Tribunal applied the principle of regularity in concluding that such inaccurate reports were comparatively rare and, on that basis, concluded that the dissemination of the report did constitute an exceptional circumstance.
- [65]The Tribunal concluded that its findings did not mean that no order for costs should be made against the respondent. In coming to this conclusion, the Tribunal made specific reference to the public interest involved in disciplinary proceedings, with the result that in the context of those proceedings a costs order was made against the respondent. However, the Tribunal found “it does mean that the Tribunal is not bound to order him to pay all of the applicant’s costs of the whole proceedings”.[26]
- [66]It is out of the ordinary course, unusual and uncommon, and so exceptional, that a party to disciplinary proceedings, and in particular the Commissioner, seeks, unilaterally, to take steps outside directions which are made by the Tribunal. The nature of the argument which took place at the hearing was unnecessary.
- [67]On that basis, the costs associated with the hearing which took place on 11 April 2017, including the submissions handed up at the hearing, will be excluded from any costs order which is made in favour of the Commissioner in the context of the proceedings.
- [68]For reasons outlined earlier, the costs of preparation of the further submissions filed on 7 February 2017 are to remain included.
- [69]Given that the direction made on 13 December 2016 contemplated a hearing after 14 February 2017, so as to avoid further delay, the Tribunal is in a position to hear this matter on the papers on 9 May.
- [70]However, the respondent might wish to file submissions in reply. Unless each party indicates to the Tribunal that no further steps are required before the hearing, the matter will be listed for a further directions hearing in the near future to consider the next steps and the possible hearing date. So as to minimise costs, the parties are given leave to attend by telephone.
Footnotes
[1] Submissions dated 30 January 2017, paragraph 5.
[2] Submissions of the Legal Services Commissioner, filed 11 April 2017, paragraph 10.
[3] Ibid, paragraph 12.
[4] Ibid, paragraph 13.
[5] QCAT Act s 95(1)(c).
[6] Submissions of the Legal Services Commissioner, filed 11 April 2017, paragraph 16.
[7] Ibid, paragraph 17.
[8] Ibid, paragraph 16.
[9] Ibid, paragraph 20.
[10] Ibid, paragraph 23.
[11] Transcript of Hearing, 11 April 2017, T1-16, ll 45-47; T1-17, ll 1-2.
[12] Transcript of Hearing, 11 April 2017, T1-17, ll 25,26.
[13] Ibid, T1-17, ll 29, 31.
[14] QCAT Act s 3(b).
[15] Ibid s 4(c).
[16] As in Legal Services Commissioner v Delaney [2015] QCAT 270.
[17] Ibid at [17] – [18].
[18] QCAT Act s 28(1).
[19] Ibid s 28(3)(d).
[20] QCAT Act s 28(3)(e).
[21] Transcript of Hearing, 11 April 2017, T1-17, ll 1-2.
[22] Legal Services Commissioner v Bosscher (No 2) [2016] QCAT 413.
[23] As outlined in s 462(1) Legal Profession Act 2007 (Qld).
[24] Legal Services Commissioner v Bosscher (No 2) [2016] QCAT 413 at [38].
[25] Ibid at [39] – [40].
[26] Ibid at [41].