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ORDER AA 64/2021 The Tribunal orders that:

1. The respondent’s application for interim or other orders lodged on 27 March 2025 is dismissed.

2. To the extent that the appellant’s application for interim or other orders made by email to the tribunal’s registry on 16 June 2025, and developed further by the appellant in submissions, sought that the proceedings as a whole be dismissed, and that the respondent be precluded from recovering any of its costs in

3. accordance with the appeal tribunal’s costs orders made on 28 July 2023, the appellant’s application for interim or other orders is dismissed.

OR 12/2020, OR 13/2020, OR 14/2020, OR 15/2020 1. The applicant’s application for interim or other orders lodged on 27 March 2025 is dismissed.

2. To the extent that the respondent’s application for interim or other orders made by email to the tribunal’s registry on 16 June 2025, and developed further by the respondent in submissions, sought that the proceedings as a whole be dismissed, and that the applicant be precluded from recovering any of its costs in accordance with the tribunal’s costs orders made on 22 December 2021, the respondent’s application for interim or other orders is dismissed.

……………………………….. Presidential Member J Lucy REASONS FOR DECISION

Introduction 1. In 2021, Mr Hugh Ford, a legal practitioner (the Practitioner), was ordered to pay the costs of the Council of the Law Society (the Council), as agreed or assessed, in professional disciplinary proceedings the Council brought against him under the Legal Profession Act 2006. In 2023, the appeal tribunal ordered the Practitioner to pay the Council’s costs, as agreed or assessed, of an unsuccessful appeal from orders made in those proceedings. The parties were unable to agree upon the amount of costs payable under the costs orders.

2. After the Practitioner had exhausted his avenues of appeal from the disciplinary orders to the Supreme Court and to the High Court, the Council filed applications for interim or other orders in all of the proceedings, seeking orders that the Practitioner pay its costs of the appeal proceedings and the disciplinary proceedings in fixed sums (the Costs Applications). Its apparent intention was to invite the registrar to assess its costs in accordance with the costs orders and to issue an order specifying the assessed costs for the costs order in the amount specified by the Council.

3. The Practitioner applied to have the proceedings dismissed, and to have the Costs Applications dismissed. He put forward a broad range of reasons why the Tribunal should make those orders, including the Council’s delay in applying for costs, that the disciplinary proceedings were unlawful, and that the costs orders were beyond power or affected by an error of law.

4. I have found that the Costs Applications are misconceived for reasons which were not initially put forward by the Practitioner. They are misconceived because neither the tribunal nor the registrar has power to make further costs orders (as sought in the application). I have accordingly dismissed those applications.

5. I have also found that the Practitioner’s summary dismissal application is misconceived to the extent that it seeks dismissal of the disciplinary and appeal proceedings and to the extent that it seeks to preclude the Council from having its costs assessed in accordance with the tribunal’s costs orders. I have dismissed it to the extent that it seeks those orders. The registrar is under a statutory obligation to assess the Council’s costs, an obligation which arises independently of any application made by a party.

Background

6. On 8 November 2021, the tribunal found the Practitioner to be guilty of professional misconduct in respect of 22 charges in proceedings OR 12/2020, 13/2020, 14/2020 and 15/2020 (Disciplinary Proceedings), which were heard together, and recommended that his name be removed from the roll.

7. On 22 December 2021 the tribunal ordered in the Disciplinary Proceedings: “The respondent must pay the applicant’s costs as agreed or assessed on a party and party basis.”

8. On 10 March 2023, in AA 64/2021 (Appeal Proceedings), the appeal tribunal dismissed the Practitioner’s appeal from the substantive orders made in the Disciplinary Proceedings.

9. On 28 July 2023, the appeal tribunal ordered in the Appeal Proceedings: “The appellant pay the respondent’s costs as agreed or assessed on a party and party basis.”

10. On 14 December 2023, the Supreme Court dismissed the Practitioner’s application for leave to appeal the appeal tribunal’s decision.

11. On 27 March 2025, the Council lodged the Costs Applications with the tribunal. The application in the Appeal Proceedings (the Appeal Costs Application) sought orders pursuant to rule 71(4) of the ACT Civil and Administrative Tribunal Procedures Rules 2024 (the 2024 Rules) that:

(a) the Practitioner pay the Council’s costs of the Appeal Proceedings in the sum of $73,161.31; and

(b) the Practitioner pay the Council’s costs of the interim application in the sum of $1,650 plus disbursements.

12. The application in the Disciplinary proceedings (the Disciplinary Proceedings Costs Application) sought orders pursuant to rule 71(4) of the 2024 Rules that:

(a) the Practitioner pay the Council’s costs of the Disciplinary Proceedings in the sum of $137,918.91; and

(b) the Practitioner pay the Council’s costs of the interim application in the sum of $1,650 plus disbursements.

13. Each of the Costs Applications also sought an order that the Appeal Costs Application be dealt with by the Tribunal together with the Disciplinary Proceedings Costs Application.

14. Annexed to each of the Costs Applications are affidavits containing evidence of the Council’s costs for the purposes of the registrar’s costs assessment.

15. On 3 April 2025, the High Court refused the Practitioner special leave to appeal to the High Court in relation to a challenge to the tribunal’s jurisdiction in the Disciplinary Proceedings.

16. On 16 June 2025, the Practitioner applied, by email to the tribunal’s registry, to have the Disciplinary Proceedings and Appeal Proceedings dismissed under section 32 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act), and to have the Disciplinary Proceedings Costs Application and Appeal Costs Application struck out for want of prosecution under section 56 of the ACAT Act (the Dismissal and Strike Out Applications). The Tribunal decided to treat those applications as applications for interim or other orders in the Disciplinary Proceedings and the Appeal Proceedings. The Practitioner provided detailed submissions in support of the Dismissal and Strike Out Applications.

17. The Council provided the Tribunal with written submissions opposing the Dismissal and Strike Out Applications on 1 July 2025.

18. A hearing of the Dismissal and Strike Out Applications was held on 2 July 2025. The Tribunal gave the parties an opportunity to provide the Tribunal with further submissions after the hearing.

19. After the hearing, the Practitioner asked the deputy registrar for an extension of time to provide his further submissions, an application which was granted. The Practitioner filed extensive written submissions on 16 July 2025.

20. On 21 August 2025, the Practitioner emailed the deputy registrar, requesting “that here be a further oral hearing so that the issues can be comprehensively addressed.” He did not file any application for interim or other orders seeking orders to that effect.

21. The Practitioner has had ample opportunity to be heard in relation to the Dismissal and Strike Out Applications and I have decided not to hold a further oral hearing.

Practitioner’s submissions

22. On 17 June 2025, the Practitioner provided the Tribunal with submissions in support of the Dismissal and Strike Out Applications.

23. The Practitioner submitted that:

(a) he had not been advised of the costs decision in the disciplinary matter, meaning that there is no decision at law and the Council cannot claim its costs;

(b) section 48 of the ACAT Act was the source of the tribunal’s authority to make a costs order, not section 433 of the Legal Profession Act 2006, because there was no definition of “costs” in section 433 and section 48 is a newer provision. Accordingly, the ACAT erred when making its costs order by applying the wrong law;

(c) Section 433 of the Legal Profession Act 2006 requires the Tribunal to make its costs order at the same time as it makes its finding about a practitioner’s conduct, so the costs order made in 2021 (some months later) was unlawful;

(d) Section 434 of the Legal Profession Act 2006 does not have the effect of disapplying provisions of the ACAT Act in these proceedings, because they have been in the ACAT jurisdiction, and not in the “LPA jurisdiction”; (e) The starting point under section 48 of the ACAT Act is that parties bear their own costs;

(f) As ACAT has not made a costs order, the Council’s application under rule 71 of the 2024 Rules is unlawful and the Tribunal does not have jurisdiction to hear the application;

(g) The ACAT made a jurisdictional error when making the costs order, meaning that there was no decision at all;

(h) The ACAT made a number of jurisdictional errors in the disciplinary proceedings;

(i) Costs do not include solicitor or counsel fees.

24. One of the grounds on which the Practitioner sought dismissal of the Costs Applications, or at least of the Disciplinary Proceedings Costs Application, was that there had been unreasonable delay on the part of the Council in pursuing its costs. Section 56(d) of the ACAT Act is a source of power for the Tribunal to 1 dismiss an application for want of prosecution.

25. The Practitioner relied upon NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77, saying that the Council’s unreasonable delay in applying for costs constituted an abuse of process. He said that the Tribunal, in 2025, had no legal authority to make an order for costs. The Practitioner submitted that section 433 of the Legal Profession Act 2006 required the tribunal to make an order for costs at the same time as it made its finding about a practitioner’s conduct (that is, in 2021), and not four and a half years later.

26. The Practitioner also made a number of submissions about the individual who was the director of Professional Standards at the ACT Law Society prior to his resignation, alleging (among other things) that his actions in relation to a purported complaint against the Practitioner were unlawful.

1 CIC Australia Ltd v ACT Planning and Land Authority, Mainore Pty Ltd and ACT Civil and Administrative Tribunal [2013] ACTSC 96 at [92]

27. The Practitioner contended that the applications for disciplinary action, made by the Council, were unlawful. He said that they were brought for an improper purpose and constituted an abuse of process.

28. The Practitioner submitted that, due to the delay in the Council seeking costs, it had abandoned its right to claim costs. He also said that the Council did not incur any costs because costs were only incurred by the Law Society, not by the Council. The Council, he said, is not under a legal liability to pay those costs.

29. The Practitioner also referred to what he described as the “Doctrine of Lashes,” by which I take him to mean the doctrine of laches. He said that the Council had waited too long to claim costs without providing any reason for the delay and that it was now precluded from claiming costs.

Council’s submissions

30. On 1 July 2025, the Council filed submissions in response to the Practitioner’s written submissions and also filed a bundle of documents. It submitted that the Practitioner’s summary dismissal application should be dismissed.

31. Broadly, the Council submitted that the Practitioner’s submissions were lengthy, repetitive and raised matters irrelevant to the current application. It said that the Practitioner was notified of the costs applications and costs decisions, despite his assertion to the contrary. The Council explained the alleged delay in making the Costs Applications by reference to the Practitioner’s appeals and challenges to the disciplinary decisions, including by applying for special leave to appeal to the High Court, and to its attempts to negotiate with the Practitioner about costs.

Hearing

32. On 2 July 2025, the Tribunal held a hearing of the Practitioner’s Dismissal and Strike Out Applications.

33. At that hearing, I raised with the parties that the registrar has an obligation, under rule 71 of the 2024 Rules to assess costs, if an order is made that a party pay another party’s costs “as agreed or assessed” and the costs cannot be agreed. I expressed the preliminary view that it followed that an application to the registrar is not necessary. All that is needed is for the parties to inform the 2 registrar that they have been unable to agree upon costs.

34. I expressed the opinion, at the hearing, that it was possible that the Costs Applications were misconceived for reasons other than those identified by the 3 Practitioner. I pointed out that the tribunal had already made orders for costs, and the only matter which could be the subject of an application is an 4 assessment of costs.

35. At the hearing, Ms Binstock made the following submissions for the Council in response to the comments I had made: We're always open to doing things different ways. In terms of filing an application for interim or other orders, that's been the vehicle previously to bringing the cost issue back before the tribunal. I accept that the order's been made. Perhaps an email would be sufficient to raise it but we've done it through the vehicle of an application. In relation to that application first - well, there's two. One's filed in the original tribunal proceeding and one's been filed in the appeal proceeding. Both are supported by an affidavit. … What we've sought to do is under rule 71, the registrar - sorry - and subrule (5), 'The registrar can decide the scale and the procedure to be followed to determine the costs and the costs of the assessment.' What we've endeavoured to do there is to make the registrar's job as easy as possible, and instead of seeking a hundred per cent of the costs which would require them, potentially, to go through each item, we've sought a reduction of 30 per cent of the solicitors' costs. … All we have tried to do is to make it as simple as possible, consistent with section 7 of the Act, but we're open to a different way.

36. The Practitioner made oral submissions at the hearing and said that he needed more time to deal with the issues I had raised. I gave him an opportunity to provide additional written submissions after the hearing.

Practitioner’s further submissions

37. In the Practitioner’s further submissions filed on 16 July 2025, the Practitioner repeated some of the submissions he had made previously. He also adopted some of the comments I made at the hearing about the Costs Applications being 2 Transcript of hearing dated 2 July 2025, page 8, line 39 to page 9, line 47 3 Transcript of hearing dated 2 July 2025, page 10, lines 10 to 12 4 Transcript of hearing dated 2 July 2025, page 10, lines 19 to 22 misconceived for reasons other than those originally identified by him. The Practitioner made a number of other detailed submissions about the lawfulness of the proceedings and the costs orders made in the proceedings.

Consideration

38. The costs orders made by the tribunal in the Disciplinary Proceedings and by the appeal tribunal in the Appeal Proceedings were made under section 433 of 5 the Legal Profession Act 2006.

39. Section 434(b) of the Legal Profession Act 2006 provides that section 48 of the ACAT Act does not apply in relation to a proceeding under the Legal Profession Act 2006.

40. I do not accept the Practitioner’s argument that section 48 of the ACAT Act applies (or applied) to the proceedings involving him. It plainly does not, as a matter of statutory interpretation. Contrary to his submission, the absence of a definition of the term “costs” in section 433 of the Legal Profession Act 2006 does not mean that the provision has no application. Further, as the Council pointed out, the Supreme Court found that section 48 does not apply to proceedings under the Legal Profession Act 2006 in Appellants v Council of the Law Society of the ACT and the Legal Practitioner [2011] ACTSC 133 at [94]- [95].

41. Rule 71(3) of the 2024 Rules provides: If the tribunal makes an order for assessed costs, the registrar must assess the costs in accordance with the order and these rules.

42. As the parties have not agreed on the amount of costs payable under the tribunal’s costs orders in the disciplinary proceedings or in the appeal proceedings, rule 71(3) requires the registrar to assess the Council’s costs in accordance with the costs orders and the 2024 Rules. I note that, at the time of the tribunal’s costs orders in December 2021, and the appeal tribunal’s costs

5 See Council of the Law Society of the ACT v Legal Practitioner LP 202012 (Hugh Ford) [2024] ACAT 11 at [359]-[360]; LP 202012 (Hugh Ford) v Council of the Law Society of the ACT [2024] ACAT 13 at [19] orders in July 2023, rule 71(3) of the ACT Civil and Administrative Tribunal Procedures Rules 2020 (now repealed) (2020 Rules) was in the same terms.

43. The tribunal does not have a practice note or provide any other public guidance as to how the parties are to inform the registrar that they have not been able to agree upon costs, so as to enliven the registrar’s obligation to assess costs. As indicated above, Ms Binstock, for the Council, informed the tribunal at the hearing that making an application for interim or other orders is the means the 6 Council had previously used to bring a costs issue back before the tribunal. That may be accepted, but the making of an application for costs orders assumes that the registrar has power to award costs, and that that power is enlivened upon receipt of an application for costs.

44. The Council’s Costs Applications are misconceived in so far as they seek costs orders from the tribunal in a fixed amount. The tribunal could have made an order for a stated amount under section 433(5)(a) of the Legal Profession Act 2006 at the conclusion of the disciplinary proceedings, but chose not to do so. The registrar does not have power to make a costs order. At the end of a costs assessment, the registrar has power to issue an order specifying the assessed 7 costs for the costs order and the costs of the assessment.

45. The Council’s Costs Applications are presumably intended to serve as an invitation to the registrar to assess the Council’s costs in the amount proposed by Council. The Tribunal accepts, as Ms Binstock submitted, that the Council was seeking, by its application, “to make the registrar's job as easy as possible” and that it was asking for only 70% of the costs it incurred. That does not, however, overcome the legal difficulty that the application was asking for an order the registrar has no power to make.

46. The registrar is required to assess costs in accordance with the tribunal’s orders, by operation of rule 71 of the 2024 Rules (and was previously required to do so by operation of rule 71 of the 2020 Rules). The registrar is subject to that obligation irrespective of any application made by the parties, at least, in the 6 Transcript of hearing dated 2 July 2025, page 20, lines 25 to 27 7 Rules, rule 71(4) case of an order for costs “as agreed or assessed,” if the registrar has been informed that the parties cannot agree on costs. There is no dispute in this case that such agreement cannot be reached.

47. For that reason, the Costs Applications are not only misconceived, they are otiose.

48. Rule 71 provides that the procedure for assessing costs is generally to be determined by the registrar, and allows the registrar to direct the parties to provide evidence or do other things to facilitate the assessment.

49. Unless the tribunal specifies the scale or process for assessing costs, the registrar has power to determine the scale or procedure to be followed to 8 determine the assessed costs and the costs of the assessment. The registrar may decide to conduct a hearing, to require a bill of costs to be prepared, apply a 9 scale of costs, or require the parties to attend a dispute resolution process. Until the registrar determines the scale and procedure to be followed, any affidavit annexing invoices and other documentary evidence of costs is premature. A party filing such an affidavit takes the risk that the registrar will not award that party the costs of preparing the affidavit. The registrar may, for example, take the view that the parties should attend a dispute resolution process, before any directions are made for parties to provide evidence of costs.

50. The second order sought by the Council in the Costs Applications is an order that the Practitioner pay the Council’s costs of each application in the sum of $1,650 plus disbursements. The Council did not identify the provision on which it relied for the Tribunal’s power to make that order. It is doubtful that section 433 of the Legal Profession Act 2006 applies to authorise the Tribunal to make such an order, after the Tribunal has already made costs orders in the disciplinary and appeal proceedings. It is also doubtful that the existing costs orders require the Practitioner to pay the Council’s costs of subsequent misconceived costs applications. In any event, even if I have power to make orders that the Practitioner pay the Council’s costs of the Costs Applications, I 8 Rules, rule 71(2) and (5) 9 Rules, rule 71(6)(a), (b), (d) and (e) am not minded to do so. It may be that some or all of the amount of the costs of the Costs Applications, as sought by the Council, comprise “the costs of the assessment” within rule 71(4) of the 2024 Rules. The assessment of the costs of the assessment is a matter for the registrar.

51. For these reasons, I have decided to dismiss the Costs Applications under section 32(1)(a) of the ACAT Act on the basis that they are frivolous and vexatious. The phrase “frivolous and vexatious” in this context means that an 10 application lacks a legal foundation or is without substance.

Unreasonable delay

52. The Practitioner contended that the Council’s unreasonable delay in applying for costs constituted an abuse of process. As I have found, the registrar has an ongoing obligation to assess costs under the 2024 Rules, and an application is not required. Accordingly, the Practitioner’s argument is not sustainable.

53. To the extent that there was a significant gap between the tribunal making costs orders in the Disciplinary Proceedings in December 2021, and the Council informing the registrar that costs could not be agreed in March 2025, that is regrettable. It may be accepted that the Council waited until all the Practitioner’s appeals and challenges to the Tribunal’s jurisdiction had been determined before approaching the registrar to have its costs assessed. However, generally parties are encouraged to resolve costs disputes promptly, consistently with their obligation to cooperate with the tribunal to give effect to the tribunal principles mentioned in section 7 of the ACAT Act, including by seeking to ensure the procedures of the tribunal are as quick as is consistent with achieving 11 justice. It is not desirable for the Registrar’s obligation to assess costs to remain unfulfilled for a period of over three years.

54. I note that it was also open to the Practitioner to inform the registrar that the parties had been unable to agree upon costs.

10 Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808 at [35]- [38]; Fox v Commissioner of Police, New South Wales Police Force [2016] NSWCATAD 77 at [26] 11 ACAT Act, ss 7, 7A

55. I do not consider, however, that any delay in the parties informing the registrar of their inability to reach an agreement as to the amount of costs payable precludes the registrar from assessing costs now. The case of NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77, on which the Practitioner relies, is not on point. That case concerned a tribunal’s delay of several years between a hearing and the handing down of the tribunal’s decision, in circumstances where the applicants’ demeanour at the hearing was relevant to the tribunal’s assessment of their credibility. The circumstance that an assessment of the applicants’ credibility was central to conclusions of fact was determinative in the High Court conclusion that the delay was procedurally 12 unfair. As Gleeson CJ observed in that case, “[t]he circumstances in which 13 delay, of itself, will vitiate proceedings, or a decision, are rare.” The Practitioner claims to have been prejudiced by the delay but has not identified any particular prejudice or disadvantage which stems from the delay. I find that there was no procedural unfairness in this case occasioned by the gap in time between the costs orders and the assessment of costs.

56. The Practitioner’s reliance upon the doctrine of laches is misconceived. Laches provides a basis for denying relief in equity to a plaintiff who has, by inaction or standing by, placed another party in a situation in which it would be inequitable and unreasonable to place that other party if the remedy were afterwards to be asserted. It has no application to the present circumstances where no equitable remedy is sought by the Council.

57. I do not agree with the Practitioner that the “proceedings” should be dismissed for want of prosecution under section 56 of the ACAT Act. The proceedings were prosecuted and have been concluded. All that remains is for the registrar to assess costs in accordance with the tribunal’s costs orders. The registrar has a statutory obligation to do so. The Council has not failed to comply with any directions of the registrar in that respect.

12 NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77, Gleeson CJ at [9]; Kirby J at [122]; Callinan and Heydon JJ at [168] 13 NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 at [5] Claims that proceedings and orders were unlawful

58. The Practitioner made various claims to the effect that the disciplinary proceedings and the costs orders were unlawful. As indicated above, his claims included that the costs orders were made under the wrong provision, that the director of Professional Standards at the ACT Law Society acted unlawfully in relation to various purported complaints and that the tribunal made jurisdictional errors in the disciplinary proceedings.

59. The appropriate vehicle for agitating those arguments is either an appeal, or an application for judicial review. An application for summary dismissal of the proceedings themselves (as opposed to an application for summary dismissal of the Costs Applications), brought after unsuccessful appeals and other Supreme Court challenges, is not competent. It is frivolous or vexatious or otherwise an abuse of process.

Conclusion

60. For the reasons given above, I have dismissed the Costs Applications. I have done so for reasons which are completely different from those initially relied upon by the Practitioner. Although the Practitioner has had some success in terms of the legal outcome sought, I have dismissed the Practitioner’s application to the extent that it seeks dismissal of the proceedings and to the extent that it seeks a decision that the Council should not be permitted to recover its costs the subject of the tribunal’s costs orders.

61. I anticipate that the registrar will now proceed to assess the Council’s costs the subject of the costs orders made by the tribunal and the appeal tribunal.

……………………………….. Presidential Member J Lucy

Date(s) of hearing: 2 July 2024 Solicitors for the Applicant: In person Solicitors for the Ms K Binstock Responde nt: