Graham v Legal Services Commissioner [2015] QCA 6

DIVISION: Court of Appeal

PROCEEDING: Case Stated – Further Order

ORIGINATING COURT: Queensland Civil and Administrative Tribunal

DELIVERED ON: 6 February 2015

DELIVERED AT: Brisbane

HEARING DATE: Heard on the papers

JUDGES: Fraser and Gotterson JJA and Philippides J / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: The appellant pay the respondent’s costs of the case stated.

CATCHWORDS: PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – NATURE OF PROCEEDINGS – PUBLIC DUTY INVOLVED – where the appellant argued that the general rule that costs follow the event should be departed from because the litigation was brought to advance the public interest – whether the litigation was in the public interest / Graham v Legal Services Commissioner (No 2) [2014] QCA 306 , cited / Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11, cited

COUNSEL: No appearance by the appellant, the appellant’s submissions were heard on the papers / No appearance by the respondent, the respondent’s submissions were heard on the papers

SOLICITORS: Bartley Cohen for the appellant / Legal Services Commissioner for the respondent

1. FRASER JA: The respondent brought disciplinary proceedings in the Queensland Civil and Administrative Tribunal alleging that the appellant, a legal practitioner, had failed to maintain reasonable standards of competence and diligence in relation to his conduct of a costs assessment. Upon the appellant’s application, which the respondent did not oppose, the Tribunal referred a question of law to the Court of Appeal. The substance of the question was whether s 93LA of the Supreme Court of Queensland Act 1991 rendered the appellant immune from the application of the provisions for the discipline of legal practitioners in Ch 4 of the Legal Profession Act 2007. (Section 93LA, which has since been re-enacted as s 77 of the Civil Proceedings Act 2011, provided that, “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.”) The Court answered the question in the negative and gave leave to the parties to make submissions about costs.¹

2. The submissions for both parties acknowledged the guideline (the “general rule”) that costs follow the event unless a good reason is shown for a different order.² The appellant argued that a different order was appropriate because this was “public interest” litigation.³ The appellant relied upon the following observations by Kirby J in Oshlack v Richmond River Council:⁴

“…a discrete approach has been taken to costs in circumstances where courts have concluded that a litigant has properly brought proceedings to advance a legitimate public interest, has contributed to the proper understanding of the law in question and has involved no private gain. In such cases the costs incurred have occasionally been described as incidental to the proper exercise of public administration. Upon that basis it has been considered that they ought not to be wholly a burden on the particular litigant.”

3. It may be said that the resolution of the point raised by the appellant has contributed to the proper understanding of the law in question, but it is not easy to accept that the proceeding in this Court was brought to advance the public interest or that it involved no private gain. The appellant acted in his own interests in promoting the referral of the question of law and advocating that he was immune from disciplinary proceedings of the kind brought against him. I would not characterise the litigation in the Court as “public interest” litigation which justifies departure from the usual approach that costs follow the event. Nor is a different approach justified by the circumstances that the respondent did not oppose the appellant’s application to refer the question of law to this Court and that the respondent had an interest, which might be regarded as corresponding with a public interest, in the issue being resolved.

4. I would order that the appellant pay the respondent’s costs of the case stated.

5. GOTTERSON JA: I agree with the order proposed by Fraser JA and with the reasons given by his Honour.

6. PHILIPPIDES J: I agree with the reasons of Fraser JA and with the order proposed.