Cupac v APL Pty Ltd t/a Adams & Partners

Procedural and other relevant history

1. On 11 February 2016, after an investigation by the Office of the Legal Services Commissioner, the Legal Services Commission wrote to the applicant and advised he found no basis for her complaints about the respondent or counsel retained for the hearing of the building dispute.
2. On 25 January 2019, the applicant sent an email to the Secretary of the NSW Department of Justice asking for a meeting with the Secretary to discuss what happened at NCAT on 21 and 22 October 2014. The Principal Registrar of the Tribunal was asked to respond to the applicant on the Secretary's behalf.
3. By letter dated 30 January 2018, the Principal Registrar wrote to the applicant noting that on 22 October 2014 an order was made by consent, without admission of liability dismissing both her application and the other party's application with no orders as to costs. The Principal Registrar provided the following information to the applicant: If you believe there was some irregularity you may lodge an appeal to NCAT's internal Appeal Panel. However, the timeframe of 28 days for an appeal has lapsed. An extension of time may be granted if the Tribunal finds the circumstances warrant an extension. Given the time that has lapsed you may wish to seek your own independent legal advice before making any appeal. Appeal application forms and information about the appeal process is available on NCAT's website at www.nsw.gov.au.
4. The Principal Registrar told the applicant she could write back to NCAT if there was anything she would like clarified.
5. On 6 February 2019, the applicant addressed correspondence to the Principal Registrar. She also noted she proposed to file "the general application form will be accompanied by other relevant documents". She did not file a Notice of Appeal together with an application for an extension of time to appeal.
6. On 11 February 2019, the applicant filed her General Application form and supporting documents.
7. Following service on the respondent of the applicant's substantive application, on 22 February 2019 the respondent caused a letter to be sent to the applicant. The respondent noted the name of the respondent was incorrect, that the claim was not pleaded in proper form, and there was no disclosure of the section of the Legal Profession Act on which she sought to rely. The applicant was put on notice that she should put on an amended application, otherwise an application would be made to strike out her application. No amended application was filed by the applicant.
8. The applicant's substantive application was listed before me on 6 March 2019 at a directions hearing in the Legal Services List conducted by me. On that occasion the applicant appeared by telephone and the respondent was represented by Mr Peter Adams. I advised the applicant she should seek independent legal advice about her application, and explained that the tribunal had no jurisdiction to hear a disciplinary action against a lawyer brought directly by a complainant to the Tribunal. The applicant was advised she could withdraw her substantive application by writing to the Registrar advising she no longer wished to continue that application.
9. The following orders were made on that day: 1. Peter Adams and Partners is to give to the Tribunal and the other party the following material: any application including an application for summary dismissal on or before 10 April 2019. 2. The proceeding is listed for hearing on 01 May 2019 at 11.30am at John Maddison Tower, Level 10, 86-90 Goulburn Street, Sydney for 10 minutes. 3. It is noted that Ms Cupac may appear by telephone on the next occasion. 4. It is noted that Susana Cupac has made a complaint to the Legal Services Commissioner and that complaint has been dismissed.
10. On 14 March 2019, the respondent wrote to the applicant noting at the directions hearing held on 6 March 2019 she was advised she had an opportunity to withdraw the substantive application without any costs order being made. The respondent's letter noted: In the event you do not file a withdrawal, we will seek summary dismissal of your Claim together with costs. As you would be aware, we will be put to further expense if you do not withdraw.
11. On 8 April 2019, the respondent filed an application for summary dismissal.

Relevant provisions of the NCAT Act and the Legal Profession Uniform Law

1. The respondent seeks dismissal of the applicant's substantive application under s 55 (1) of the NCAT Act. Section 55 provides as follows: 55 Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances: (a) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate, (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, (c) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings, (d) if the Tribunal considers that there has been a want of prosecution of the proceedings. (2) The Tribunal may reinstate proceedings that have been dismissed under subsection (1) (c) if the Tribunal considers that there is a reasonable explanation for that failure. application.
2. I am asked to deal with the application as an interlocutory application. An interlocutory application is defined in s 4 of the NCAT Act as follows: interlocutory decision of the Tribunal means a decision made by the Tribunal under legislation concerning any of the following: (a) the granting of a stay or adjournment, (b) the prohibition or restriction of the disclosure, broadcast or publication of matters, (c) the issue of a summons, (d) the extension of time for any matter (including for the lodgment of an application or appeal), (e) an evidential matter, (f) the disqualification of any member, (g) the joinder or misjoinder of a party to proceedings, (h) the summary dismissal of proceedings, (h1) the granting of leave for a person to represent a party to proceedings, (i) any other interlocutory issue before the Tribunal. [my emphasis]
3. Schedule 5 cl 18 of the NCAT Act deals with the composition of the Tribunal to hear an interlocutory application under the Uniform Law. I am empowered to hear this application under cl 18 (2) (a) as a single member.
4. It is also necessary that I refer to the provisions of the Uniform Law. I pause to note that the applicant first raised her complaint with the Office of the Legal Services Commission on 28 October 2015. The hearing the subject of the complaint occurred on 21 October 2014. The relevant provisions of the Uniform Law came into operation on 1 July 2015. Under the transitional provisions if a complaint is accepted for investigation, but not disposed of prior to the commencement date, that complaint continued to be heard under the provisions of the LPA (see Griffin v Council of the Law Society [2016] NSWCA 364). In this matter, as I am satisfied the complaint was first raised after the commencement of the Uniform Law and the Legal Services Commissioner had dismissed the complaint on 11 February 2016, there was no outstanding matter which fell to be determined under the LPA. Thus, I am satisfied this summary dismissal application should be determined taking into account the provisions of the Uniform Law. In any event, I note the relevant provisions of the Uniform Law largely replicate the provision of the LPA.
5. Under s 266 of the Uniform Law a complaint may be made by any person to a DLRA. In this case the DLRA was the Legal Services Commissioner. A complaint may relate to a consumer matter and/or a disciplinary matter.
6. The Uniform Law requires a complaint to be made within 3 years of the conduct the subject of the complaint, although the DLRA has a discretion to waive the time requirement in specified circumstances. The applicant made her complaint within the time period specified in the Uniform Law.
7. Under s 282 of the Uniform Law the Legal Services Commissioner carried out an investigation of the applicant's complaint. The Commissioner dismissed the complaint under s 299 (3) of the Uniform Law. Section 299 (3) of the Uniform Law provides as follows: (3) If the designated local regulatory authority determines a disciplinary matter under this section, no further action is to be taken under this Chapter with respect to the complaint.
8. Chapter 5 of the Uniform Law in which s 299 (3) is found deals with dispute resolution and professional discipline.
9. Section 312 of the Uniform Law makes the decision of the Legal Services Commissioner final, except in the limited circumstances set out in s 312 and s 314 (an appeal by a lawyer against a finding of unsatisfactory professional conduct). Section 313 provides as follows: 313 Internal review of decisions of local regulatory authority (1) The designated local regulatory authority may (at its absolute discretion) conduct an internal review of a decision made by the designated local regulatory authority (or its delegate) if the designated local regulatory authority considers it appropriate to do so. (2) On the review, the designated local regulatory authority is to consider whether the decision was dealt with appropriately and whether the decision was based on reasonable grounds. (3) On the review, the designated local regulatory authority may confirm the original decision, make a new decision, or refer the matter back to the original decision-maker.
10. There is no suggestion in this case that the Legal Services Commissioner found it appropriate to review the decision of 11 February 2019.
11. For completeness, I note that the power to initiate and prosecute proceedings in the designated tribunal rests with the DLRA. Section 300 provides: (1) The designated local regulatory authority may initiate and prosecute proceedings against a respondent lawyer in the designated tribunal if the designated local regulatory authority is of the opinion that - (a) the alleged conduct may amount to unsatisfactory professional conduct that would be more appropriately dealt with by the designated tribunal; or (b) the alleged conduct may amount to professional misconduct. (2) As soon as practicable after deciding to initiate proceedings under this section, the designated local regulatory authority must give the complainant and the respondent to the complaint written notice of the decision.

Relevant legal principles - summary dismissal

1. It is appropriate that I also refer to the well-established principles applicable to an application for summary dismissal. There is no doubt that the power to dismiss summarily is one to be exercised with caution and on substantial grounds.
2. In Lindon v Commonwealth (No 2) [1996] HCA 14; (1996) 136 ALR 251 at 256 Kirby J said: It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against government and other powerful interests. This is why relief, whether under O 26, r 18 or in the inherent jurisdiction of the court, is rarely and sparingly provided. To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious. An opinion of the court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination. Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment. Summary relief of the kind provided for by O 26, r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer. If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts. If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading. A question has arisen as to whether O 26, r 18 applies to part only of a pleading. However, it is unnecessary in this case to consider that question because the Commonwealth's attack was upon the entirety of Mr Lindon's statement of claim. The guiding principle is, as stated in O 26, r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit. (Footnotes omitted)
3. Although not dealing with an application for summary dismissal the discussion of the High Court of the principles applicable to a permanent stay of proceedings also have resonance when dealing with an application for summary dismissal. In Walton v Gardiner (1993) 177 CLR 378 at 392-393 Mason CJ, Deane & Dawson JJ said: The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them. Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings. The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v. Chief Constable of the West Midlands Police as "the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people". (Footnotes omitted) [my emphasis]
4. The decisions of the Appeal Panel of this Tribunal have, on a number of occasions, dealt with the correct interpretation of the words "frivolous or vexatious". I note s 55 (1) (b) also provides for dismissal if proceedings are "otherwise misconceived or lacking in substance". In Alchin v Rail Corporation NSW [2012] NSWADT 142 Judicial Member Wright SC (as his Honour then was) cited the following passage from Ormiston JA in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at [25]: … If one may discern, in these provisions, an attempt to express the powers of tribunals in non-technical language, then "misconceived" would represent a claim which did "not disclose a cause of action" ..., whereas "lacking in substance" might be seen to represent a claim where the defendant could obtain summary judgment ...
5. The respondent also drew my attention to the discussion of the Appeal Panel in Fox v Commissioner of Police [2016] NSWCATAD 77. That decision includes a reference to Alchin v Rail Corporation NSW.

Discussion and conclusions - summary dismissal application

1. The applicant clearly appears to have misunderstood or ignored the procedural advice she received from the Principal Registrar about the relief which may be obtained in this Tribunal. She has chosen not to file a Notice of Appeal together with an application for an extension of time in which to appeal against the orders made in the Commercial and Consumer Division.
2. The applicant's material discloses she has sought legal advice from solicitors, other than the respondent, about her claims, including obtaining advice about possible professional negligence actions against her solicitors. It is unnecessary I make any findings about the legal advice obtained by the applicant save to note it appears that she has not sought legal advice about her present application.
3. I am satisfied that the applicant did lodge a complaint with the Legal Services Commissioner (a DLRA under the Uniform Law).
4. The Uniform Law provides an avenue for consumers of legal services to make a consumer or a disciplinary complaint to the DLRA. The applicant availed herself of that opportunity. The Legal Services Commissioner as the DLRA, after an investigation, found no substance to the applicant's complaint. The Uniform Law does not presently provide for a right of appeal or review to the Tribunal of the Legal Services Commissioner's decision. The Legal Services Commissioner decision of 11 February 2016 brought to an end the applicant's complaint under Chapter 5 of the Uniform Law which, as I have earlier noted, deals with dispute resolution and professional discipline.
5. The Legal Services Commissioner was satisfied the complaint did not establish unsatisfactory professional conduct by the respondent and dismissed the complaint.
6. The Uniform Law provides that disciplinary proceedings asserting professional misconduct or unsatisfactory professional conduct may be instituted in the Tribunal by the DLRA. The Uniform Law makes no provision for a complainant to directly bring disciplinary proceedings in the Tribunal.
7. I am satisfied that the present application is doomed to fail because the applicant does not have the necessary standing to bring an application for disciplinary findings and orders under the Uniform Law. Accordingly, I am satisfied the respondent's application for summary dismissal is soundly based and the applicant's substantive application will be dismissed.

Costs

1. Clause 23 Schedule 5 of the NCAT Act sets out special provisions for the awarding of costs in proceedings between a DLRA and a lawyer or in favour of a person against a DLRA or a lawyer in limited circumstances. None of the circumstances set out in Clause 23 are applicable in this case.
2. The respondent seeks an order under s 60 of the NCAT Act that the applicant pays its costs on an indemnity basis as agreed and failing agreement as assessed. He submits that the application was "not legally properly based", misconceived because "the claim itself does not disclose a cause of action" and is an abuse of process. In support of the last submission, the respondent relies on Re Hinds and Australian National University [2012] AATA 495
3. Section 35 of the NCAT provides that "each provision of this Part is subject to the enabling legislation". The relevant part of the Act is Part 5. Section 60, which deals with costs, is found in Part 5.
4. In this case, the applicant relied on the LPA. It appears to me in those circumstances normally regard would be had to the special costs provisions set out in Schedule 5 of the NCAT Act. Those provisions however do not cover the present circumstances. I am satisfied that it is appropriate therefore to rely on s 60 as a source of power to make a costs order. In so determining I am satisfied there that the LPA and/or the Uniform Law do not cover the field to exclude reliance on the NCAT Act costs provisions (see Medical Council of NSW v Lee [2017] NSWCA 282).
5. Section 60 of the NCAT Act provides as follows: 60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant. (4) If costs are to be awarded by the Tribunal, the Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (5) In this section: costs includes: (a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.
6. It is clear from the terms of s 60 that I can only depart from the general rule that each party pays that party's own costs if I am satisfied "special" circumstances exist. I am guided and informed by general principles discussing what constitutes "special circumstances" and the provisions of s 60(3).
7. In a recent Appeal Panel decision (Zucker v Burbank Montague Pty Ltd [2018] NSWCATAP 135) the panel at [36] referred to authorities dealing with the words "special circumstances" as follows: "Special circumstances" are circumstances that are out of the ordinary. They do not have to be extraordinary or exceptional: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11], citing Santow JA in Cripps v G & M Mawson [2006] NSWCA 84 at [60].

Discussion and conclusions costs

1. In this case the applicant was well aware from correspondence received from the Principal Registrar about the type of application she could bring in the Tribunal. She either disregarded or ignored the Principal Registrar's correspondence. Her application has been found to be lacking in substance.
2. The applicant received procedural advice at the first directions hearing. Further the applicant was warned in the respondent's letter of 22 February 2019 that an application would be made to have the present application struck out. The applicant did not withdraw her application
3. On 14 March 2019, the respondent caused a letter to be sent to the respondent on a "without prejudice except as to costs" basis.
4. In its letter of 14 March 2019 the respondent explained: As you heard in the Tribunal directions hearing, you have the opportunity of withdrawing your Claim in the Tribunal without an Order for Costs. We have agreed to that situation notwithstanding we have spent time appearing at this matter and preparing for that directions hearing. In the event that you do not file a withdrawal, we will seek a summary dismissal of your Claim together with costs. As you would be aware, we will be put to further expense if you do not withdraw. This letter will be used as to any argument as to costs. This offer is open until 31 March 2019.
5. I am satisfied special circumstances are established in this case which warrant a departure from the usual position set out in s 60 (1). First, the applicant's claim has no basis in law. Secondly, the applicant was notified about the type of application she could make to the Tribunal by the Principal Registrar in January 2019. She disregarded that advice. Thirdly, the lack of standing to bring her application was explained to the applicant at the directions hearing on 6 March 2019, but she did not withdraw her application. Finally, the applicant ignored the matters set out in the respondent's correspondence of 14 March 2019. That correspondence made it clear she could withdraw her application without any costs penalties up to 31 March 2019. She did not do so.
6. The respondent seeks costs on an indemnity basis. The making of a costs order on an indemnity basis is subject to a number of caveats. These are well explained in Colgate-Palmolive Company and Colgate-Palmolive Pty Limited v Cussons Pty Limited; Cussons Pty Limited v Colgate-Palmolive Company and Colgate-Palmolive Pty Limited [1993] FCA 536; (1993) 46 FCR 225 by Sheppard J at [24]. His Honour notes the well settled practice of generally awarding costs on a party and party basis and sets out the type of circumstances where, in the exercise of discretion, a Judge may depart from the usual practice.
7. In this instance, I note this matter has been disposed of in a relatively short space of time and with minimum delay and attendant costs. Mr Adams, who appeared on behalf of the respondent, was required to be present in the Tribunal for a relatively limited period of time and was not delayed by the giving by me of oral reasons for decision. It was only at the first directions hearing that the applicant had clear procedural advice that she lacked standing to make her application. In these circumstances I am not persuaded that costs should be awarded on anything but the usual basis.

ORDERS 1. The General Application filed on 11 February 2019 is dismissed. 2. The applicant is to pay the respondent's costs as agreed and failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 06 May 2019