KMB v Legal Practitioners Admissions Board (Queensland)

In this recent matter the appellant successfully appealed against the Legal Practitioners’ Admissions Board refusal to assess the appellant as a fit and proper candidate for admission. In circumstances where the Board enjoys an immunity from civil liability conferred by s 707 of the Legal Profession Act 2007, the court addressed whether the Board ought be nonetheless liable for costs. The Court of Appeal considered the Board’s position when appearing before it as amicus curiae and its unique function in determining whether to grant a declaration that an applicant is a fit and proper person, ultimately concluded that s 707 gives the Board immunity against an order for the costs of a proceeding at which it appears before the court as part of its role, provided that the order sought is not predicated on either dishonesty or negligence.

Sofronoff P and Gotterson JA and Douglas J

28 April 2017

In this recent matter the court considered whether the court may make a costs order against the Legal Practitioners Admission Board (“the Board”) following its refusal to assess the appellant as a fit and proper candidate for admission. The appellant successfully appealed that decision to the Court of Appeal [1] and thereafter sought costs of the appeal. In circumstances where the Board enjoys an immunity from civil liability conferred by s 707 of the Legal Profession Act 2007 (the Act), the court addressed whether the Board ought nonetheless be liable for costs.

Importantly, the Act does not make provision for awarding costs subsequent to any proceedings brought under it. Only s 707 of the Act makes any reference whatsoever to costs. It provides that the Board “is not civilly liable to someone for an act done, or omission made, honestly and without negligence under this Act”.  The Act provides that “civil liability includes a liability for the payment of costs ordered to be paid in a proceeding for an offence against this Act”.

The essential enquiry before the court was, accordingly, whether an order that the Board pay the appellant’s costs would render it “civilly liable to someone” thus engaging the immunity conferred by s 707 of the Act. [50].

At the outset of the matter the President offered a detailed historical summary of the profession of barristers; admission; and disciplinary decisions. [3]-[40]. He then examined the Board’s unique role under s 32 in determining whether to grant a declaration, commenting that it is quasi-judicial in various respects and ultimately acts as a “special” statutory adjunct to the Court in that it has a statutory right to appear and to be heard by way of assistance as a genuine amicus curiae. [46]. He stressed that an application to the Board is not to be regarded as creating a lis inter partes and further, a determination does not give rise to such a lis in the event a disappointed applicant exercises their right to appeal. His Honour clarified:

“Such an appeal is a proceeding sui generis in which the Court must decide a question in the exercise of its power to decide who may and who may not be admitted as one of its legal practitioners. Such a proceeding does not involve a determination of existing rights in a dispute between two parties. Rather, it is an inquiry by the Court itself into a particular issue that the Court must determine in the course of controlling entry into the profession so as to limit such entry only to those who meet the necessary standards of character”. [47].

For that reason, it would be incompatible with fundamental principle and the Board’s function if provision were made in the legislation for an award of costs to be made against the Board when it is present to assist the Court. That is because the Board is not a party to litigation and “neither wins nor loses, whatever the Court decides”. [48].

Referring to Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52, the court’s view was that the immunity against civil liability conferred by s 707 gives the Board immunity against an order for costs of a proceeding at which it appears before the Court as part of its role, provided the order sought is not predicated on either dishonesty or negligence. In the President’s view, that construction of s 707 is strongly favoured by the inherent function of the Board as the Court’s helper, and the fact that its members act in an honorary capacity fulfilling a professional duty. [52]. He added that the rider to the section is supportive of the same conclusion, since it makes it expressly clear that the immunity is not confined to only costs in the civil jurisdiction. In his Honour’s view, the express inclusion within the immunity of costs awarded in the criminal jurisdiction suggests that costs awarded in the civil jurisdiction are already covered by the expression “civil liability”. [53].

In concluding that it was appropriate to make no order as to the costs of the appeal, Sofronoff P made a number of observations [56]-[58] about the nature of the proceeding. In particular, the Board was not a party in the ordinary sense. Its primary role is “to help the Supreme Court by making a recommendation about each application for admission” in terms of s39(1) of the Act. As such there is no “event” upon the occurrence of which the Court should make its “usual order”, and no winner or loser in an associated appeal. [60].

In the result, the application was dismissed.

A de Jersey