Legal Services Commissioner v Cooper
[2017] QCAT 151
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- Unreported Judgment
- Legal Services Commissioner v Cooper[2017] QCAT 151
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Legal Services Commissioner v Cooper[2017] QCAT 151
Legal Services Commissioner v Cooper[2017] QCAT 151
CITATION: | Legal Services Commissioner v Cooper [2017] QCAT 151 |
PARTIES: | Legal Services Commissioner (Applicant) v Adam Karl Hope Cooper (Respondent) |
APPLICATION NUMBER: | OCR032-15 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Justice DG Thomas, President Assisted by: Mr Ken Horsley (Legal panel member) Dr Margaret Steinberg AM (Lay panel member) |
DELIVERED ON: | 25 May 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | COSTS – ASSESSMENT OF COSTS – where respondent found guilty of unsatisfactory professional conduct – where respondent consented to order paying applicant’s costs – where respondent submitted cooperation with investigations and efficient progression of the matter justified order fixing costs – where applicant submitted costs should be assessed – whether assessment of costs reconcilable with indemnity costs principle – whether Tribunal able to fix costs based on the information provided by the parties Legal Profession Act 2007 (Qld) s 462 Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 32, 100, 107 Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 87 Cachia v Hanes (1994) 179 CLR 403, 410 Environmental Protection Authority v Taylor Woodrow (Aust) Pty Ltd (1997) 97 LGERA 368 King v King [2012] QCA 81 Latoudis v Casey (1990) 170 CLR 534 Legal Services Commissioner v Cooper [2016] QCAT 122 Legal Services Commissioner v Stower [2015] QCAT 64. Oshlack v Richmond River Council (1998) 193 CLR 72 |
APPEARANCES: |
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This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
REASONS FOR DECISION
- [1]The Tribunal found that the practitioner’s conduct was categorised as unsatisfactory professional conduct and ordered that the practitioner be publicly reprimanded and pay a fine in the sum of $2,500.[1] The Tribunal allowed the parties the opportunity to make additional written submissions with respect to costs.
- [2]As was recorded in the reasons of the Tribunal:[2]
- The Commissioner sought an order for costs to be assessed;
- The respondent accepted it was appropriate that there be an order that he pay the Commissioner’s costs;
- As to the quantum of costs, the respondent submitted that, as the applicant employs salaried lawyers, it is inappropriate to order costs by reference to any court scale in those circumstances when a member of the independent bar was not retained;
- The respondent submitted that the costs must be reasonable and just in the circumstances and that cooperation of the respondent meant that the matter progressed in an efficient way, and in all the circumstances, the appropriate order would to be fix the costs at $1,500.
- In response the Commissioner submitted that pursuant to section 462(5) of the Legal Profession Act 2007 (Qld) (“LPA”) the Tribunal may make an order for costs in “a stated amount or for an unstated amount but must state the basis upon which the amount must be decided”.
- The Commissioner pointed to the fact that the Tribunal has made orders for stated amounts, on occasions when the relevant amount has been agreed between the parties, but has also made orders that costs be agreed or assessed.
- [3]Given the further opportunity, the Commissioner makes the following additional submissions:
- There are no exceptional circumstances,[3] which would warrant a departure from the usual rule “that the applicant is entitled to his full costs in the matter”.[4]
- There is no basis upon which the Tribunal can properly reduce the amount of costs sought by the Commissioner being costs as assessed.[5]
- As section 107(1) Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) provides that the Tribunal must fix costs if possible, the Commissioner is prepared to have the costs assessed on a standard basis with the costs assessment being submitted to the Tribunal to enable it to fix costs.
- The respondent referred to the case of Environmental Protection Authority v Taylor Woodrow (Aust) Pty Ltd[6] to support a submission that the costs awarded should be “reasonable and just in the circumstances”. The Commissioner agrees with that submission. By making an order that the costs be assessed, the Tribunal can be assured in accordance with the Taylor Woodrow principle, that the applicant would “receive the benefit of a costs order in this case on the basis of the actual liability it has incurred by reason of these proceedings, consistently with the “costs indemnity principle”.[7]
- In relation to the respondent’s submission based on a previous decision of Legal Services Commissioner v Stower, in that context, the precedent of the particular case may be relied upon for nothing more than that, on the particular occasion, the applicant agreed costs with respondent in the matter.
- [4]The respondent submitted that:
- The costs indemnity rule exists to protect unsuccessful parties to litigation, and the costs awarded to a successful party must not exceed the costs incurred by that party.[8]
- Where a party receives costs for legal services of its in house lawyers, the court will be anxious to ensure that the party does not profit from the litigation – on that basis, costs awarded must be measured to include only that portion of the salary of the lawyer with the conduct of matter that was effectively expended in the proceedings in addition to some overheads.[9]
- In making an order for costs, the Tribunal must fix costs if possible.[10] In this case, it is possible to fix costs and so the prescriptive language of section 107 QCAT Act requires the Tribunal to fix them.
- The applicant is incorrect in submitting that section 462(1) LPA entitles the applicant to “his full costs in the matter”.[11]
- Section 462(1) LPA is an expression of the costs indemnity rule; costs are awarded by way of indemnity (or more accurately partial indemnity) for professional legal costs actually incurred in the litigation.[12]
- The costs awarded to the applicant must be reasonable and just in the circumstances, by way of (partial) indemnity for legal costs actually incurred and not punitive to the respondent.[13]
- In circumstances where the respondent consented to and supported an expedited procedure, for the applicant to seek to have its costs assessed is inconsistent with the model litigant status and is, not appropriate.[14]
- The decision in Legal Services Commissioner v Stower[15] involved the respondent cooperating with the applicant and not defending the charges, although a statement of agreed facts was filed with an affidavit of Mr Stower. The order was that the respondent pay costs fixed at $1,500.[16]
- As Mr Cooper cooperated more freely than Mr Stower, obviating the need for a statement of agreed facts, costs fixed in the sum of $500 would reflect that difference.[17]
Disposition
- [5]As has been agreed by the parties, as a finding of unsatisfactory professional conduct has been made, the Tribunal must make an order for costs in favour of the Commissioner unless the Tribunal is satisfied that exceptional circumstances exists.[18]
- [6]Costs orders are compensatory in nature, in that they are awarded to indemnify the successful party against the expense to which the party has been put by reason of the legal proceedings.[19] The corollary is that the unsuccessful litigate is not required to pay more than the costs incurred by the successful party.[20]
- [7]The divergence between the parties relates principally to the appropriate costs order which should be made, and, if costs are to be assessed, the principles which should apply to that assessment.
- [8]The respondent raised an issue regarding the applicant’s submissions in reply and suggested that the applicant should not “have any costs relating to the reply submissions, not least because it was entirely inappropriate to file without leave.”[21]
- [9]As is recorded by the respondent, the Tribunal accepted the submissions in reply and considered them. The delivery of the submissions in reply do not amount to exceptional circumstances and so the Tribunal concludes that as to the submissions in reply no exceptional circumstances exist for the purpose of section 462(1) LPA.
- [10]The Commissioner has referred to section 462(1) as allowing an entitlement to full costs: this suggested entitlement is not further defined. Section 462(1) LPA does not provide for an entitlement on any particular basis. Unless the costs are fixed by the Tribunal the Tribunal must state the basis of which the costs are calculated.
- [11]As has been pointed out by the respondent, pursuant to section 107 QCAT Act, if the Tribunal makes a costs order under the QCAT Act or an enabling Act, the Tribunal must fix the costs if possible.
- [12]The question is whether it is possible to fix the costs on the information which has been provided to the Tribunal.
- [13]The only information provided by the respondent is the reference to the decision in Legal Services Commissioner v Stower. What is said is that the respondent cooperated and did not defend the charges and that a statement of the agreed facts was filed with an affidavit. The respondent discounts that amount by reference to the fact he believes he was more cooperative. He discounts the figure by 2/3 of the figure at which the costs were fixed in Stower at $1,500.
- [14]Whilst reference is made by the respondent to the order in Stower that costs be fixed at $1,500, the circumstances in which that order came about are revealed in the applicant’s submissions when it is said that the figure was arrived at by an agreement between the parties, the details of which are unknown.
- [15]It is possible that earlier cases might be of some assistance to the Tribunal in fixing costs if the decisions in relation to costs were made by the Tribunal following an assessment process and if more detail of the comparison between one case and the other were available.
- [16]In the circumstances as raised by the respondent, the earlier case is of little or no value and so does not assist the Tribunal in fixing the costs.
- [17]In those circumstances, in terms of the requirements of section 107 QCAT Act, the task of fixing the costs is not possible.
- [18]As to costs, the QCAT Act does not provide the same useful mechanisms as are to be found in the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”).
- [19]This is probably because the base position under the QCAT Act is, according to section 100 QCAT Act, that each party to a proceeding must bear the parties own costs for the proceedings. That is, of course, unless there is a contrary provision (as is the case with the Legal Profession Act) to be found in an enabling Act.[22]
- [20]The LPA gives two alternatives as to an order for costs. They are that an order for costs:
- May be for a stated amount; or
- May be for an unstated amount but must state the basis upon which the amount must be decided.
- [21]In the event that it is not possible to fix the costs, the Tribunal may make an order requiring that the costs be assessed under the Rules.[23]
- [22]Rule 87 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (“QCAT Rules”) deals with assessing costs.
- [23]Rule 87(1) QCAT Rules is to the effect that the Rule provides for how costs are to be assessed under section 107 QCAT Act if the Tribunal makes a costs order that requires the costs to be assessed under the Rules.
- [24]Rule 87(2) QCAT Rules provides that the costs must be assessed by an assessor appointed by the Tribunal.
- [25]The basis of the assessment is in the hands of the assessor who has the power to decide the procedure to be followed on the assessment of the costs.[24]
- [26]The assessor is given wide powers and may decide to do any or all of the following:
- Hear the assessment in private;
- Carry out the assessment on the papers without an oral hearing;
- Not be bound by the laws of evidence or procedure applying to a proceedings in the Tribunal;
- Be informed of the facts in any way the assessor considers appropriate;
- Not make a record of the evidence given.[25]
- [27]Pursuant to section 462(5) LPA, as the order for costs cannot be for a stated amount, the Tribunal must indicate the basis upon which the amount must be decided.
- [28]The Tribunal replaced the Legal Practice Tribunal, presided over by Supreme Court Judges. The Tribunal itself must be constituted by a Judicial Member, who is a Supreme Court Judge or a former Supreme Court Judge, who is nominated by the President to constitute the Tribunal.
- [29]The costs should be decided on the standard basis which would apply were the disciplinary proceedings to have been heard and determined in the Supreme Court of Queensland.
- [30]The respondent has raised a number of issues which are relevant to the assessment to be undertaken. Those issues include the application of the costs indemnity principle which has been considered in a number of recent cases.[26] An order for assessment on the basis outlined does not preclude the respondent making submissions in relation to those issues. The assessment would necessarily include consideration and determination of these issues.
- [31]In the circumstances, the Tribunal orders that the respondent pay the applicant’s costs assessed on the standard basis which would apply were the disciplinary proceedings to have been heard and determined in the Supreme Court of Queensland.
- [32]As was said by former President Alan Wilson J, “the exercise of costs assessment should be undertaken with a high degree of independence by an experienced and registered costs assessor.”[27]
- [33]Costs assessors are appointed under the Uniform Civil Procedure Rules 1999 (UCPR). Assessors appointed under Rule 743L of the UCPR and under Chapter 17A Part 5 of the UCPR, must have satisfied the Principal Registrar that they have the necessary experience and qualifications.
- [34]As the parties have been unable to agree costs and as it is not possible, because of the nature of the matter and the information currently available to the Tribunal, for the Tribunal to fix costs, the Tribunal will appoint an assessor pursuant to Rule 87 of the QCAT Rules.
- [35]Following a procedure similar to that adopted by Wilson J in Puryer, to assist the Tribunal to consider the identity of an appropriate assessor, the Tribunal will order that, the parties endeavour to agree the identity of a costs assessor (who is appointed under the UCPR and who is willing to accept the appointment) and by 16 June 2017, notify the Tribunal of the agreed costs assessor.
- [36]Following receipt of that notification, or if the parties are unable to agree on the name of a costs assessor, the Tribunal will, after 16 June 2017, appoint a costs assessor, pursuant to Rule 87, to assess the costs.
Footnotes
[1]Legal Services Commissioner v Cooper [2016] QCAT 122 at [53].
[2]Ibid at [55]-[59].
[3]As that term is used in section 462(1) Legal Profession Act 2007 (Qld).
[4]Submissions on Costs on Behalf of the Applicant, 5 April 2016, paragraph 3.
[5]Ibid, paragraph 4.
[6] (1997) 97 LGERA 368 at 384.
[7] Ibid at [388].
[8]Respondent’s Submissions on Costs, 4 April 2016, paragraph 1; referring generally to Harold v Smith [1860] 157 ER 1229.
[9]Ibid, paragraph 2; referring to Environmental Protection Authority v Taylor Woodrow (Aust) Pty Ltd (No 2) (1997) 97 LGERA 368 at 388.
[10]Respondent’s Submissions on Costs, 4 April 2016, paragraph 3; referring to section 107 QCAT Act.
[11]Ibid, paragraph 11.
[12]Ibid, paragraph 12; referring to Cachia v Hanes (1994) 179 CLR 403 at 410.
[13]Submissions on Costs on Behalf of the Applicant, 5 April 2016, paragraph 13; referring to Environmental Protection Authority v Taylor Woodrow (Aust) Pty Ltd (1997) 97 LGERA 368 at 384.
[14]Ibid, paragraph 14.
[15][2015] QCAT 64.
[16]Submissions on Costs on Behalf of the Applicant, 5 April 2016, paragraph 16.
[17]Ibid, paragraph 17.
[18]Legal Profession Act 2007 (Qld) s 462(1).
[19]Latoudis v Casey (1990) 170 CLR 534, 566 & 567.
[20]Oshlack v Richmond River Council (1998) 193 CLR 72, 79 & 121, as paraphrased in King v King [2012] QCA 81 at [7].
[21]Respondent’s Submissions on Costs, 4 April 2016, paragraph 10.
[22]Legal Profession Act 2007 (Qld) s 462(1).
[23]QCAT Act s 107(2).
[24]Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 87(3).
[25]Ibid, r 87(5).
[26]Environmental Protection Authority v Taylor Woodrow (Aust) Pty Ltd (1997) 97 LGERA 368; Commonwealth Bank of Australia v Hattersley & Anor [2001] NSWSC 80.
[27]Legal Services Commissioner v Puryer (No 2) [2013] QCAT 407 at [18].