Graham v Legal Services Commissioner

PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - GENERALLY - where the appellant, a legal practitioner, had been appointed as a costs assessor under Ch 17A of the Uniform Civil Procedures Rules 1999 - where the respondent commenced disciplinary proceedings against the appellant and the appellant admitted he failed to maintain reasonable standard of competence and diligence in his conduct as a costs assessor under Ch 17A - where the President of the Tribunal has referred a question of law to the Court - whether the appellant has the benefit of the immunity granted to him by s 93LA of the Supreme Court of Queensland Act 1991, which provides a cost assessor with the same protection as a judge performing the functions of a judge, such that in performing his conduct he is exempt from disciplinary provisions in Ch 4 of the Legal Profession Act 2007

Civil Proceedings Act 2011 (Qld), s 77

Constitution of Queensland 2001, s 60, s 61, s 62, s 63

District Court of Queensland Act 1967 (Qld), s 13

Legal Profession Act 2007 (Qld), s 3, Ch 4, s 416, s 418, s 419

Supreme Court of Queensland Act 1991 (Qld), s 93LA

Uniform Civil Procedure Rules 1999 (Qld), Ch 17A

Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34, cited

Scanlon v Director General, Department of the Arts, Sport & Recreation (2007) 70 NSWLR 1; [2007] NSWCA 204, considered

Sirros v Moore [1975] QB 118, cited

Wentworth v Wentworth (2001) 52 NSWLR 602; [2000] NSWCA 350, cited

[1] FRASER JA: The Legal Services Commissioner commenced a disciplinary proceeding in the Queensland Civil and Administrative Tribunal against Mr Graham. Mr Graham was a legal practitioner who had been appointed as a costs assessor under the Uniform Civil Procedure Rules 1999 (Qld) ("UCPR"). There were no facts in issue in the proceedings in the Tribunal and Mr Graham admitted that he had failed to maintain reasonable standards of competence and diligence in his conduct of a costs assessment under Ch 17A of UCPR.

[2] Pursuant to s 118(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) the President of the Tribunal has referred the following question of law which arose in that proceeding to the Court of Appeal in the form of a case stated under r 781 of the Uniform Civil Procedure Rules 1999 (Qld) ("UCPR").

"Whether [Mr Graham] has the benefit of the immunity and protection granted to him by section 93LA of the Supreme Court Queensland Act 1991, which provides a cost assessor in performing the functions of costs assessor with the same protection and immunity as a Judge performing the function of a judge, such that in performing the Conduct he is not susceptible to or is exempt from the disciplinary provisions in chapter 4 of the Legal Profession Act 2007."

[3] Section 93LA of the Supreme Court of Queensland Act 1991 has been repealed and re-enacted in the same form as s 77 of the Civil Proceedings Act 2011, but it is s 93LA which is the relevant provision in this matter. It provided:

"(1) In performing the functions of costs assessor, the person appointed as a costs assessor has the same protection and immunity as a judge performing the functions of a judge.

(2) A party appearing in a costs assessment has the same protection and immunity the party would have if the costs assessment were a proceeding being heard before the Supreme Court.

(3) A witness attending in a costs assessment has the same protection and immunity as a witness attending before the Supreme Court."

[4] The case stated was filed in an appeal involving the same parties in which judgment is also published today. For that reason it is convenient to adopt the parties' approach of referring to Mr Graham as the appellant and to the Legal Services Commissioner as the respondent.

"Between 4 June 2009 and 1 June 2011 [the appellant] failed to maintain reasonable standards of competence and diligence in relation to his conduct of a costs assessment in the matter of Pioneer Construction Materials Pty Ltd v Schoch & Ors (Brisbane District Court matter no. 3175/03) ("the matter")."

[6] The particulars of the charge included that the appellant was a costs assessor within the meaning of r 679 of UCPR and that by a District Court order made on 25 May 2009 he was appointed to conduct a costs assessment of the plaintiff's costs in a District Court matter pursuant to r 708 of UCPR and orders which had been made in that matter ("the Costs Assessment"). The case stated (as amended) set out the following admitted facts:

"(a) by letter dated 4 June 2009, Patane Lawyers, the solicitors for the plaintiff in the matter, notified the [appellant] of his appointment and provided the [appellant] with the material in order to conduct the Costs Assessment.

(b) Between 28 July 2009 and 29 June 2010 Patane Lawyers communicated with the [appellant's] office;

(c) By letter dated 19 July 2010, the [appellant] advised Patane Lawyers that:

" ...I have completed my calculations and Assessment in relation to the Costs Statements dated 13 October 2008 in respect of the Plaintiff's costs payable by the First, Second, Third and Fifth Defendants pursuant to the Order of McGill DCJ made the 25th day of May 2007 and Order of Noud DCJ made the 16th day of July 2008 ..."

"Upon payment of my [enclosed] tax invoices I will file my Certificate and deliver the Certificate to the solicitors for the Plaintiff and to the First Defendant/respondent on behalf of the Costs Respondent."

(d) By letter dated 20 July 2010 Patane Lawyers forwarded a cheque to the [appellant] in full payment of the tax invoices referred to in paragraph (c) above.

(e) As at 18 May 2011, the [appellant] had not filed his certificate in relation to the Costs Assessment in accordance with r.737 of the UCPR.

(f) On 19 May 2011, Patane Lawyers filed an application, returnable on 1 June 2011, in which the plaintiff sought (inter alia) to rescind the order of 25 May 2009, or alternatively to the have the [appellant] file his certificate within 3 days of any order made on the application.

(g) On 30 May 2011, the [appellant] filed two certificates relevant to the Costs Assessment.

(h) On 1 June 2011 the plaintiff's application was heard before his Honour Judge Martin SC.

(i) The [appellant] failed to maintain reasonable standards of competence and diligence in relation to the conduct of the Costs Assessment in that he:

(i) failed to conduct the Costs Assessment within a reasonable time of being appointed to do so;

(ii) failed to follow procedure on the Costs Assessment which was efficient pursuant to rule 720(2) of the UCPR;

(iii) failed to file his certificate in the court within the time limit required by rule 737(2) that is, within 14 days after the end of the assessment."

[7] In the question for determination set out at [2] of these reasons, the appellant's conduct described in subparagraphs (c), (e), (g) and (i) is referred to as "the Conduct".

[8] Part 3 of Ch 17A of UCPR established a scheme under which the amount of costs recoverable by a party entitled to be paid costs is determined by a costs assessor or by a registrar approved to assess costs ("assessing registrar"). There are provisions for the party entitled to be paid costs to serve a costs statement and for the party on whom a costs statement is served to serve a notice of objection to items in the costs statement (rr 705, 706). Where there is no notice of objection, the registrar must appoint a costs assessor to assess costs upon application, in which case, upon proof of service of the costs statement the costs assessor must assess the costs by allowing the costs claimed in the costs statement and then issue a certificate of assessment (r 708). Either party may apply for a costs assessment after the service of a costs statement (r 710). The parties may file a consent order for the appointment of a particular costs assessor to carry out the assessment (r 712) or the registrar may order the appointment of a particular costs assessor for that purpose (r 713). In an assessment by an assessing registrar, the assessing registrar has power to administer an oath, examine witnesses, and give various directions (r 714). The Court may give a costs assessor who is not an assessing registrar the same powers in relation to a costs assessment (r 715). The costs assessor decides the procedure to be followed on the assessment, but the procedure must be appropriate, consistent with the rules of natural justice, and fair and efficient (r 720). In assessing costs a cost assessor must consider specified matters (including the nature and importance of the proceeding and the amount involved) and also any other relevant circumstances (r 721). There are detailed provisions concerning costs for particular matters which the assessor may or must not allow or disallow (rr 723 - 731).

[9] At the end of the costs assessment the cost assessor must certify the amount or amounts payable by whom and to whom and file the certificate in the Court within 14 days after the end of the assessment (r 737). A party may require a costs assessor to give reasons for any decision included in the certificate (r 738). After a certificate of assessment is filed, a registrar must make the appropriate order and the order takes effect as a judgment of the Court (r 740). There are provisions for review of a decision in a costs assessor's certificate of assessment by the Court upon application by a dissatisfied party (r 742).

[10] Costs assessors' fees are charged at hourly rates (rr 710(2)(c)(ii), 743K(1)(b)(ii), 743O) and (subject to any contrary order by the registrar) are paid in the first instance by the applicant for an assessment (r 740(4)).

[11] A person is eligible for appointment as a costs assessor only if the person is an Australian lawyer with at least five years experience in the practice of law or the assessment of costs and is a fit and proper person to assess costs (r 743J). Upon application by such a person for appointment as a costs assessor and provision of an affidavit demonstrating eligibility for appointment, the principal registrar may appoint (or refuse to appoint) the person as a costs assessor (r 743K, r 743L). Rule 743Q empowers the principal registrar to "end the appointment of a person as a costs assessor for a sufficient reason". Stated examples of a sufficient reason are "the costs assessor becoming a judicial officer" and "the costs assessor ceasing to be a fit and proper person to assess costs". Before ending a person's appointment the principal registrar must give the person notice of the matters the principal registrar intends to consider and a reasonable opportunity to make a submission (r 743Q(2)). The principal registrar must give a statement of reasons for a decision to end a person's appointment and that person may appeal the decision to a single judge of the Supreme Court (r 743Q(3), (4)).

[12] The main purposes of the Legal Profession Act 2007 ("the LPA") are stated in s 3 as being "to provide for the regulation of legal practice in this jurisdiction in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally" and "to facilitate the regulation of legal practice on a national basis across State borders". The term "legal profession" is not defined, but it comprehends barristers and solicitors: see the provisions for "barristers rules" made by the Bar Association, "solicitors rules" made by the Law Society, and "Legal Profession Rules" (solicitors rules or barristers rules) in Ch 3 of the LPA. The term "legal practice", which is also used in the stated main purposes of the LPA, is not defined[1] but it is referred to in the definition of "legal services" as meaning "work done, or business transacted, in the ordinary course of legal practice".

[13] The main purposes of Ch 4 of the LPA are expressed in s 416 as being "to provide for the discipline of the legal profession", "to promote and enforce the professional standards, competence and honesty of the legal profession", "to provide a means of redress for complaints about lawyers", and "to otherwise protect members of the public from unlawful operators." Legal practitioners may be disciplined for "unsatisfactory professional conduct" or "professional misconduct" (see s 456). Those terms are defined in ss 418 and 419 by reference to shortcomings in the conduct of an "Australian legal practitioner" either happening "in connection with the practice of law" or (under s 419(1)(b)) by reference to conduct which justifies a finding that "the practitioner is not a fit and proper person to engage in legal practice."

[14] The appellant argued that the question referred for determination should be answered "yes" for reasons which may be summarised as follows:

(a) The immunity of a costs assessor in conducting a costs assessment is the same as that of a judge performing the functions of a judge and the judge is not subject to the disciplinary provisions in Ch 4 of the LPA. There is no warrant for extending the operation of Pt 4 of the LPA to the adjudicative functions of costs assessors in circumstances in which costs assessors are already subject to the regime for removal in the UCPR.

(b) If costs assessors were not exempt from the disciplinary provisions in Ch 4 of the LPA, the independence of costs assessors would be undermined by the possibility of interference or retaliation by disaffected litigants making complaints. Exposing costs assessors to disciplinary sanctions, which include fines, public reprimands and suspensions (short of removal under UCPR r 743Q), would inhibit the exercise of important public adjudicative functions; like judges, costs assessors ought to be able to exercise their role without fear or favour.

(c) Costs assessors are, like judges, accountable in that they have a public role, they could be asked to give reasons for their decisions, their decisions are subject to appellate review, and the ultimate sanction is removal from office.

[15] The respondent's argument may be summarised as follows:

(a) As an Australian legal practitioner to whom Ch 4 of the LPA applied the appellant is amenable to the disciplinary regime in Ch 4 of the LPA. The UCPR does not provide a disciplinary regime for misconduct of members of the legal profession, of which all costs assessors are part, and there is no basis for concluding that Australian lawyers who have been costs assessors are not subject to discipline proceedings in accordance with the LPA in relation to their conduct as costs assessors.

(b) The conduct described in the case stated was not conduct of the appellant "[i]n performing the functions of costs assessor" within the meaning of that expression in s 93LA of the Supreme Court of Queensland Act 1991. The functions which attract immunity do not include misconduct associated with a failure to act in a timely manner; rather, the immunity focuses upon the exercise of the functions of a costs assessor.

(c) Judicial immunity does not in any event protect a judge (or costs assessor) in respect of misconduct. The immunity is instead concerned with the consequences of judicial conduct and extends only to civil proceedings for damages and some criminal proceedings.

[16] The appellant did not contend that the terms of Ch 4 of the LPA were not apt to apply to him in relation to the conduct described in the case stated. The appellant's argument was instead that s 93LA of the Supreme Court of Queensland Act 1991 immunised or protected him from discipline for misconduct under Ch 4 of the LPA because judges performing their judicial functions were immune or protected from discipline for misconduct. That argument assumed that the inapplicability to judges of the provisions for discipline of legal practitioners in Ch 4 of the LPA resulted from judicial immunity or protection from discipline. That is not why Ch 4 is inapplicable in relation to judges performing their judicial functions. A judge is not immune or protected from discipline for misconduct if such discipline is provided for under a constitutionally valid statutory provision. Thus, under s 61 of the Constitution of Queensland 2001 a judge may be removed from office by the Governor in Council on an address of the Legislative Assembly for proved misbehaviour justifying removal from the office: s 61(2)(a). (Under s 61(2)(b), a judge may also be removed from office for proved incapacity to perform the duties of the office.)

[17] The Constitution of Queensland 2001 provides constitutional protections for judges: subject to the provisions in the Supreme Court of Queensland Act 1991 and the District Court of Queensland Act 1967 for the retirement of judges and a judge's entitlement to resign an office, a judge holds office as a judge indefinitely during good behaviour (s 60); a judge may not be removed from an office other than under s 61(2) (s 61(1)); misbehaviour or incapacity may be proved only by the legislative assembly accepting a finding of proved misbehaviour justifying removal from the office or proved incapacity to perform the duties of the office by the tribunal referred to in ss 61(5) - (10); the amount of a judge's salary may not be decreased (s 62(2)); and where the court or part of a court in which a judge holds office is abolished, the judge is entitled to be appointed to another office of at least equivalent status (s 63). Those constitutional protections for judges are not directed to a disciplinary regime of the kind provided by Ch 4 of the LPA. In any event, they could not be applied by s 93LA of the Supreme Court of Queensland Act 1991 in relation to the conduct of a costs assessment by a costs assessor because costs assessors are paid by one or both of the parties to a costs assessment rather than being paid a salary, and they may be removed from office by an officer of the Court merely for "sufficient reason".

[18] The appellant did not identify any statutory immunity or protection afforded to judges which might be applied in relation to costs assessors by s 93LA. His argument necessarily was that he was entitled to a protection or immunity conferred upon judges by the common law. It therefore should be emphasised that the reason for the immunity conferred upon judges by the common law is not "because the judge has any privilege to make mistakes or to do wrong".[2] The public interest rationale for the immunity was described by Gleeson CJ in Fingleton v The Queen:[3]

"This immunity from civil liability is conferred by the common law, not as a perquisite of judicial office for the private advantage of judges, but for the protection of judicial independence in the public interest. It is the right of citizens that there be available for the resolution of civil disputes between citizen and citizen, or between citizen and government, and for the administration of criminal justice, an independent judiciary whose members can be assumed with confidence to exercise authority without fear or favour. As O'Connor J, speaking for the Supreme Court of the United States, said in Forrester v White, that Court on a number of occasions has 'emphasised that the nature of the adjudicative function requires a judge frequently to disappoint some of the most intense and ungovernable desires that people can have.' She said that '[i]f judges were personally liable for erroneous decisions, the resulting avalanche of suits ... would provide powerful incentives for judges to avoid rendering decisions likely to provoke such suits.'"

[19] Consistently with that rationale, in Scanlon v Director General, Department of the Arts, Sport and Recreation[4] Tobias JA, with whose reasons Mason P and Beazley JA agreed, held (after discussing Fitzgerald JA's analysis, with which Heydon JA agreed, in Wentworth v Wentworth[5]) that judicial immunity "does not and never has extended to the disciplining of judicial officers in accordance with the statutory regime prevailing from time to time." In Scanlon, the appellant was the principal Registrar of the Licensing Court of New South Wales and the respondent was responsible for the institution of disciplinary procedures against the appellant under provisions of the Public Sector Employment and Management Act 2002 (NSW). Section 44C of the Judicial Officers Act 1986 (NSW) conferred upon the registrar, when performing the duties of a judicial officer, the same protection and immunity as a judge of the Supreme Court has in the performance of his or her duties as a judge. The New South Wales Court of Appeal rejected the registrar's claim that the protection and immunity precluded forms of disciplinary action which could not be taken against the judge. Tobias JA pointed out that judicial immunity did not extend to judicial misconduct where that misconduct would otherwise justify removal from office.[6]

[20] That conclusion may itself amount to a sufficient basis for rejecting the appellant's claim to judicial immunity or protection in this case. The appellant's admitted failure to maintain reasonable standards of competence and diligence in relation to the conduct of the costs assessment could be held to amount to "sufficient reason" such as to justify the principal registrar in ending the appellant's appointment as a costs assessor under UCPR r 743Q(1).

[21] Furthermore, Tobias JA also rejected the proposition, which was emphasised in the appellant's arguments, that the independence of the registrar was put in jeopardy by the possibility of disciplinary action for proven misconduct.[7] As the respondent submitted, Tobias JA held that "[judicial] immunity extends only to immunity from civil proceedings for damages and some criminal proceedings (such as for contempt) at the suit of dissatisfied litigants and their proxies...the fact that [registrars] exercise limited judicial functions does not exempt their conduct whilst exercising those functions from the...disciplinary regime to which they are otherwise subject".[8] The immunity did not exempt judicial officers from disciplinary processes where misbehaviour was alleged, there was no justification for extending the immunity to the investigation of the registrar for misconduct under the provisions of the Public Sector Employment and Management Act relating to the investigation of allegation of misconduct, and:

"Once it is accepted that there is no protection or immunity against a charge of misbehaviour or misconduct against the appellant in the performance of his judicial functions, it matters not that once the charges are proven, the array of sanctions available under...the Public Sector Employment and Management Act are broader than those available with respect to a judge of the Supreme Court - at least where those sanctions are less draconian than the ultimate sanction of dismissal or removal from office."[9]

[22] Those reasons are readily applicable in relation to the protection or immunity claimed by the appellant. It follows that s 93LA of the Supreme Court of Queensland Act 1991 does not immunise or protect the appellant from discipline under Ch 4 of the LPA.

[23] The reason why Ch 4 of the LPA does not apply in relation to judges performing their judicial functions is not that the common law confers upon judges any relevant judicial immunity or protection of a kind to which s 93LA refers. Rather, it is that Ch 4 of the LPA does not purport to apply in relation to judges performing their judicial functions. Judges performing their judicial functions do not conduct "legal practice", the regulation of which forms a main purpose of the LPA. Nor do judges practise as members of "the legal profession", the discipline of which forms the main purpose of Ch 4. The "key concepts" of "unsatisfactory professional conduct" and "professional misconduct" defined in ss 418 and 419 are equally inapplicable in relation to judges performing their judicial functions. Consistently with those conclusions, s 13 of the District Court of Queensland Act 1967 prohibits a judge of the District Court from practising as a lawyer or being directly or indirectly concerned or interested in the practice of a lawyer; that provision reflects the incompatibility of the office of a judge with the judge being involved in the practice of law as a legal practitioner.

[24] Because Ch 4 of the LPA plainly does not purport to apply in relation to judges performing their judicial functions, it is not necessary to discuss the anomalies which would flow from any attempt to apply it. For the same reason it is also unnecessary to consider whether provisions of the kind in Ch 4 of the LPA could be applied in relation to judges performing judicial functions consistently with Ch 3 of the Commonwealth Constitution.

[25] I do not accept the respondent's submission that the appellant's admitted failure to maintain reasonable standards of competence and diligence in relation to the conduct of the costs assessment in the ways described in the case stated was beyond the scope of the judicial protection and immunity against civil proceedings and some criminal proceedings. In Wentworth v Wentworth,[10] Fitzgerald JA observed that it was "conclusively established by authority that judicial immunity extends to whatever a judge who is a member of the court does in the exercise of "the broad and general authority conferred upon a court to hear and determine a matter: Gallo v Dawson (1988) 63 ALJR 121 at 122; 82 ALR 401 at 402; cited in Yeldham (at 70) [Yeldham v Rajski (1989) 18 NSWLR 48]". I see no reason to doubt that the appellant's acts and omissions occurred in the exercise of the appellant's authority to conduct the costs assessment. Accordingly, in relation to those acts and omissions the appellant is entitled to the benefit of the judicial immunity and protection against civil proceedings and some criminal proceedings conferred upon costs assessors by s 93LA of the Supreme Court of Queensland Act 1991. For the reasons I have given, however, that protection and immunity does not preclude the application of Ch 4 of the Legal Profession Act 2007.

[26] The question referred for determination in the Case Stated should be answered "No".

[27] I would grant leave to the parties to make submissions about the costs of the Case Stated within seven days of today in accordance with paragraph 52 of Practice Direction No 3 of 2013.

[28] GOTTERSON JA: I agree with the orders proposed by Fraser JA and with the reasons given by his Honour.

[29] PHILIPPIDES J: I agree with the reasons of Fraser JA and the orders proposed.

[1] Except by the expressed inclusion within that term of "the practice of foreign law in this jurisdiction by a foreign lawyer" in s 85 for the purposes of Pt 2.5 of the Act (which concerns police reports and health assessments in relation to "suitability reports").

[2] Sirros v Moore [1975] QB 118 at 132 (Lord Denning MR).

[3] [2005] HCA 34; (2005) 227 CLR 166 at 186 [38].

[4] [2007] NSWCA 204; (2007) 70 NSWLR 1 at 18 [54](c).

[5] [2000] NSWCA 350; (2000) 52 NSWLR 602 at 609 [20] - [59].

[6] [2007] NSWCA 204; (2007) 70 NSWLR 1 at 19 [57].

[7] [2007] NSWCA 204; (2007) 70 NSWLR 1 at 24 [81].

[8] Scanlon v Director General, Department of the Arts, Sport and Recreation [2007] NSWCA 204; (2007) 70 NSWLR 1 at 25 [87] (Tobias JA, with whose reasons Mason P and Beazley JA agreed).

[9] [2007] NSWCA 204; 70 NSWLR 1 at 24 [82].

[10] [2000] NSWCA 350; (2001) 52 NSWLR 602 at 616 [43].