Burrows v Law Society of New South Wales [2019] NSWCA 8 | Case summary

Court of Appeal (NSW)|2019-02-07|Before: Basten JA, Macfarlan JA, Schmidt J, Adamson J

Solicitors: Zali Burrows at Law (Applicant) Anne-Marie Foord (Respondent) File Number(s): CA 2018/222316 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2018] NSWSC 376; [2018] NSWSC 737 and [2018] NSWSC 943 Date of Decision: 23 March 2018, 22 May 2018 and 21 June 2018 Before: Schmidt J (23 March 2018) and Adamson J (22 May 2018 and 21 June 2018) File Number(s): SC 2018/24244

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

THE COURT: On the application for leave to appeal being called for hearing this morning, counsel for the applicant sought to file in Court a notice of motion seeking a stay (meaning an adjournment) of the hearing. He also sought to read an affidavit of the applicant, Ms Zali Burrows, dated 7 February 2019.
The affidavit stated that on 25 October 2018 the applicant had made a complaint to the Independent Commission Against Corruption ("ICAC") with respect to "what I believe to be an impermissible exercise of delegated powers." She stated that the matter "is currently under the consideration of ICAC". The affidavit annexed a letter from a senior assessment officer at the ICAC addressed to the applicant and dated 13 November 2018. It noted a preliminary position that the complaint was outside the ICAC's jurisdiction and sought further information as to the asserted basis of the ICAC's jurisdiction. The affidavit did not suggest the applicant had responded to that request.
The basis of the adjournment application was that the hearing of the application for leave to appeal should await the outcome of the complaint before the ICAC. Counsel submitted that the applicant expected to obtain further evidence as a result of inquiries undertaken by the ICAC. These, it was submitted, would be relevant to the question of leave to appeal.
The application for adjournment was opposed by senior counsel for the respondent ("the Law Society").
The proposed appeal concerns three judgments in the Common Law Division delivered on 23 March, 22 May and 21 June 2018. Any appeal would be determined on the basis of the material before the Court in the course of those proceedings; it would not be concerned with any additional material which might be discovered as a result of inquiries undertaken by the ICAC. Indeed, the existence of any further material is, at this stage, entirely speculative. Accordingly, the application for an adjournment of the hearing regarding leave to appeal was misconceived. The Court refused the adjournment.
We then turn to consideration of the application for leave to appeal.
On 19 September 2016 the Law Society sought the response of Ms Burrows, a practising solicitor, to a complaint made by a senior counsel concerning her conduct. Further communications then followed, including in relation to two additional complaints notified to Ms Burrows on 14 March and 29 September 2017. After the Law Society concluded that Ms Burrows had not responded to the complaints satisfactorily, it resolved on 18 January 2018 to suspend her practising certificate and appoint a manager to her practice. On the same day, it also resolved to make a complaint against Ms Burrows as follows: "The Solicitor has continually failed to comply with requirements for information and/or documentation in the course of the Society's investigation of a complaint and a trust account inspection."
On 22 January 2018 Ms Burrows filed a summons in the Supreme Court seeking to have her suspension set aside and on 25 January 2018 she served an affidavit on the Law Society exhibiting 229 pages. As a result, the Law Society revoked the resolutions for suspension of her practising certificate and the appointment of a practice manager. That led to Ms Burrows' withdrawal of her proceedings and the emergence between the parties of an issue as to who should pay the costs of the proceedings.
Adamson J resolved that issue on 22 May 2018 by ordering Ms Burrows to pay the Law Society's costs of the proceedings, including the hearing on costs ([2018] NSWSC 737 - the "No 3 Judgment"). Her Honour gave the Law Society leave to apply for the costs to be specified in a gross sum. This application having been made, her Honour delivered a further judgment, on 21 June 2018, ordering that Ms Burrows pay the Law Society's costs in the specified gross sum of $54,000 excluding GST ([2018] NSWSC 943 - the "No 4 Judgment"). Earlier, by judgment of 23 March 2018, Schmidt J had ordered Ms Burrows to pay the Law Society's costs of the determination of an issue between them as to whether Ms Burrows should have access to documents subpoenaed by her ([2018] NSWSC 376 - the "No 2 Judgment").
Ms Burrows seeks leave to appeal against each of the Nos 2, 3 and 4 Judgments. Her written Summary of Argument identifies the following three complaints about the judgments.

Finding concerning Ms Burrows' conduct

In the No 3 Judgment, Adamson J noted that "in a costs application where there has been no hearing on the merits, it is not appropriate for the court to conduct a hypothetical trial", referring to Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 624 (McHugh J); [1997] HCA 6. Her Honour further noted however that that does not exclude the Court considering the parties' conduct. As McHugh J went on to say (ibid): "In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action."
Appropriately guided by these principles, her Honour then reviewed the evidence before her and concluded at [76]: "The narrative set out above indicates that [Ms Burrows] accorded no particular priority to communications from [the Law Society]. But for her repeated silence, non-responsiveness and tardiness, [the Law Society] would not have had to resort to the tool of immediate suspension."
This finding formed the basis of her Honour's further conclusion, at [77], that it was appropriate to order Ms Burrows to pay the Law Society's costs. In her Summary of Argument filed in this Court, Ms Burrows contended that in making this finding her Honour did not give appropriate weight to material upon which Ms Burrows relied. Her Honour's judgment however makes it clear that she was conscious of this material. It was unnecessary that she refer to it in detail in circumstances where she did not need to, and did not profess to, determine all the factual issues to which the evidence gave rise. There is nothing in Ms Burrows' submissions which is of such a compelling nature as to cause this Court to grant leave to appeal to enable what was a factual finding made in the course of a costs judgment to be challenged. The Court exercises considerable restraint in the grant of leave to appeal in such cases, not only because costs decisions fall into the category of decisions on matters of practice and procedure, but also because the legislature has specifically identified decisions as to costs only as being the subject of a requirement for leave to appeal (Supreme Court Act 1970 (NSW), s 101(2)(c); Wentworth v Rogers (No 3) (1986) 6 NSWLR 642 at 644, 651-2).

The validity of notices to Ms Burrows of the Law Society's resolutions

Ms Burrows contends that the notices of the Law Society's resolutions served on Ms Burrows were invalid because the power to issue them had not been delegated by the Law Society to its signatory, Mr Kenneth Tickle, the Chief Operating Officer of the Law Society. To found her argument she seeks by her Summary of Argument to rely upon circumstances which, in her words, "were not drawn to the attention of the judge at first instance" and she seeks to lead evidence on the issue. Likewise in its Response, the Law Society indicates that there is evidence that it would have called if these circumstances had been relied upon by Ms Burrows before the primary judge.
Ms Burrows' complaint accordingly constitutes a new point sought to be raised by her for the first time on appeal, in relation to which additional evidence was, or at least may, have been relevant. As a result Ms Burrows should not be granted leave to appeal to enable her to raise the point (Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; [1950] HCA 35).
In any event, the point does not appear to have merit. Nothing advanced by the applicant gives reason to doubt that notices of resolutions of the Law Society may be given by its agent, without the need for any formal delegation of decision making power. As Chief Operating Officer, Mr Tickle would have authority to do that.

Procedural fairness in relation to gross sum costs submissions

Ms Burrows contends that the primary judge did not afford her procedural fairness in that her Honour refused to allow Ms Burrows "sufficient additional time to prepare written submissions [concerning the gross sum costs application], in circumstances where the applicant found herself fully occupied in a criminal trial". Her Honour allowed Ms Burrows additional time but not all that she sought. It was within her Honour's discretion to determine the time to be allowed. Ms Burrows has not identified any basis upon which the restraint exercised by the Court in granting leave to appeal in respect of matters of practice and procedure should be regarded as overcome.
In any event, we note that it appears, from the Law Society's Response, that Ms Burrows' submissions were in fact filed within the additional time that her Honour allowed.
Ms Burrows has not demonstrated that the time constraints caused her practical injustice.

Order

As Ms Burrows has not advanced any argument that would warrant a grant of leave to appeal, her summons is dismissed with costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 February 2019

(Supreme Court Act 1970(NSW)

Burrows v Law Society of New South Wales

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