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austlii:act/ACTSCFC/2025/1
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ACTSCFC
2025-03-27
Mossop and McWilliam JJ, Ainslie-Wallace AJ
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Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY FULL COURT
Case Title: Law Society v Ford (No 3) Citation: [2025] ACTSCFC 1 Hearing Date: Decided on the papers Decision Date: 27 March 2025 Before: Mossop and McWilliam JJ, Ainslie-Wallace AJ Decision: (1) The defendant is to pay the plaintiff’s costs of the proceedings. Catchwords: PRACTICE AND PROCEDURE – COSTS – Where defendant struck off roll of solicitors – where plaintiff wholly successful in the proceedings – where plaintiff had made settlement offers – where defendant sought not to pay plaintiff’s costs – where defendant pointed to range of factors in the history of this and other proceedings – defendant’s submissions contained arguments that either were scandalous, attempted to relitigate resolved matters, had no proven foundation, or indicated lack of understanding of judicial process – plaintiff’s choice of jurisdiction not inappropriate – defendant to pay plaintiff’s costs PRACTICE AND PROCEDURE – COSTS – Where arguments raised to depart from the usual rule as to costs – argument as to appropriateness of plaintiff’s choice of forum, namely the ACAT, where plaintiff could have commenced proceedings in Supreme Court – argument alleging defendant’s own impecuniosity – argument that costs in past related proceedings encompass all or much of subsequent proceedings – arguments rejected Legislation Cited: Court Procedures Rules 2006 (ACT), r 1721 Legal Profession Act 2006 (ACT), s 27 Cases Cited: Council of the Law Society of the Australian Capital Territory v Giles (No 2) [2020] ACTSCFC 2 Latoudis v Casey (1990) 170 CLR 534 Law Society (ACT) v Bangura [2024] ACTSCFC 1; 21 ACTLR 268 Law Society of the ACT v Stubbs [2017] ACTSCFC 3 Law Society v Ford (No 2) [2024] ACTSCFC 2 Northern Territory v Sangare [2019] HCA 25; 265 CLR 164 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Oshlack v Richmond River Shire Council (1994) 82 LGERA 236 The Council of the Law Society of the ACT v Lester [2022] ACTSCFC 1 The Council of the Law Society of the Australian Capital Territory v Hoyle [2020] ACTSCFC 3 The Council of the Law Society of the Australian Capital Territory v Hoyle (No 2) [2020] ACTSCFC 4 The Council of the Law Society of the Australian Capital Territory v Davey [2019] ACTSCFC 2; 14 ACTLR 159 Wu v Wu (No 3) [2024] ACTCA 35 Parties: The Council of the Law Society of the Australian Capital Territory (Plaintiff) Hugh Russell Ford (Defendant) Representation: Counsel DA Moujalli (Plaintiff) Self-represented (Defendant) Solicitors Thomson Geer (Plaintiff) Self-represented (Defendant) File Number: SC 10 of 2024 THE COURT: Introduction
Evidence and submissions
The plaintiff relied upon an affidavit of Samuel Harper dated 31 January 2025 which outlined some of the correspondence between the parties and, in particular, the offers made by the plaintiff to resolve the matter in a way that minimised the legal costs required to be incurred.
The plaintiff’s submissions outlined the applicable principles and provided examples of cases in which a Full Court had made costs orders. The essential submission put on behalf of the plaintiff was that it was wholly successful in the proceedings and had made appropriate offers in an attempt to reach an agreement with the defendant in order to minimise the cost and court time required to resolve the proceedings. In those circumstances, the plaintiff submitted that — consistent with the principles outlined by the Court of Appeal in Wu v Wu (No 3) [2024] ACTCA 35 — it should be compensated for the liability that it has incurred in prosecuting the originating application and addressing the defendant’s application in relation to jurisdiction.
The submissions of the defendant took as their starting point the judgment of Stein J in Oshlack v Richmond River Shire Council (1994) 82 LGERA 236 (wrongly attributed by the plaintiff to a “Judge Preistly”), in which his Honour emphasised that the general discretion in relation to costs was developed in an era of private litigation and that there was a need to distinguish such litigation from applications to enforce public law obligations. The defendant submitted that the majority of the High Court in Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 (Oshlack) endorsed this approach.
With that background, the defendant then submitted that, while the discretion in r 1721 of the Court Procedures Rules 2006 (ACT) is unfettered, the principles surrounding its application had become so hardened that they “look like rules of law”. The defendant also stated that he “claims that he has at all times been acting in the public interest”. There are a number of reasons articulated for this contention: (a) the conduct of the Law Society in this matter, “and many other matters”, was unlawful; (b) there was no legal authority for Mr Reis, the former Director of Professional Standards at the Law Society, to conduct investigations; (c) most of the defendant’s clients as a migration lawyer were pro bono; and (d) “In most cases the detention and removal of refugees is unlawful. Many refugees have died because of the unlawful conduct of the Australian government.”
There are then a series of submissions put under different headings. They may be summarised as follows: (a) “Punishment of the Defendant”: The defendant submitted that the only reason that the plaintiff commenced proceedings in the ACAT was to obtain costs, and that the “entire ACAT proceedings was an abuse of process” seeking to punish the defendant. (b) “Disentitling conduct”: The defendant made a number of allegations of disentitling conduct. (i) First, he alleged bullying and harassment by the former Director of Professional Standards at the Law Society, Mr Reis, as well as bullying and harassment by the solicitor acting for the plaintiff. (ii) Second, he alleged that proceedings ought to have been commenced in the Supreme Court’s inherent jurisdiction, and that the proceedings were commenced in the ACAT in order to occasion unnecessary expense. (iii) Third, he alleged that the plaintiff did not comply with court orders, but said he did not have space to substantiate the claim. (iv) Fourth, he alleged that the decision by the plaintiff not to rely upon the affidavit of Mr Reis, and hence not make him available for cross-examination, was “highly improper”. (c) “Lack of Financial Resources”: The defendant submitted that he has been denied an income for approximately seven years and has already paid $40,000 in costs to the plaintiff. (d) “Good Faith Efforts”: The defendant asserted that, at all times, he has been “acting in good faith” and has “never benefitted from any of these matters”. (e) “Other Jurisdictions”: The defendant submitted: “The only jurisdiction which claims exorbitant costs is the ACT. The cost of such a matter in another State or Territory would be approximately $10,000.” (f) “The Defendant has Already Paid Costs”: The defendant submitted that in previous related proceedings, he had been ordered to pay the Law Society $40,000, and that the plaintiff did not incur any additional costs in bringing the current proceedings in the ACAT, the Appeal Tribunal of the ACAT, or the Supreme Court. Therefore, he submitted that he has already paid costs and the plaintiff “should not be allowed to double dip”.
Decision
The obvious starting point is r 1721, which provides that the costs of proceedings are in the discretion of the court. The defendant is correct in submitting that caution must be applied in order to avoid the “arterial hardening” referred to in Oshlack at [38], so that rules of practice do not harden into rules of law. Having said that, the compensatory purpose of costs orders is deeply entrenched, the best example being Latoudis v Casey (1990) 170 CLR 534.
The principles summarised in Wu v Wu at [8] were formulated by the Court of Appeal in a strictly private law context. As the decision in Oshlack illustrates, different considerations may be given weight where the proceedings have a public law context. The present case involves the plaintiff exercising a regulatory function in relation to the legal profession. The proceedings before the Full Court and the earlier proceedings in the ACAT and the ACAT Appeal Tribunal involved a process at the very centre of the regulation of the legal profession: the determination of whether or not a lawyer should remain on the roll of legal practitioners. Those circumstances do distinguish this case from the sort of private law case in which the principles in Wu v Wu were articulated. However, the mere fact that proceedings exist in a regulatory context does not determine one way or another whether the “usual rule” as to costs should apply.
The Legal Profession Act 2006 (ACT) does not provide a statutory rule requiring the defendant to pay costs in circumstances such as the present. Nevertheless, the practice of the court has been to make an award of costs in favour of the Law Society when an order is made for the removal of the name of a lawyer from the roll: Law Society (ACT) v Bangura [2024] ACTSCFC 1; 21 ACTLR 268 at [66]-[67], The Council of the Law Society of the Australian Capital Territory v Hoyle [2020] ACTSCFC 3 at [24]; The Council of the Law Society of the Australian Capital Territory v Hoyle (No 2) [2020] ACTSCFC 4 at [19]; Council of the Law Society of the Australian Capital Territory v Giles (No 2) [2020] ACTSCFC 2 at [9]; The Council of the Law Society of the Australian Capital Territory v Davey [2019] ACTSCFC 2; 14 ACTLR 159 at [37]; Law Society of the ACT v Stubbs [2017] ACTSCFC 3 at [43]. Where the lawyer has not opposed removal from the roll, at least in one case, the court has made only a limited costs order in favour of the Law Society which excluded the costs of the hearing of the proceedings: The Council of the Law Society of the ACT v Lester [2022] ACTSCFC 1.
The question of costs in the present case has to be determined in the context of the history of the proceedings. Those proceedings have included a decision by the ACAT, a decision by the ACAT Appeal Tribunal, and a decision by a single judge of the Supreme Court to refuse leave to appeal. At every stage of that process, the defendant has opposed the findings sought by the plaintiff, and at every stage he has been unsuccessful. In the Full Court, the defendant made misconceived applications relating to the jurisdiction of the court and mediation of the proceedings. The plaintiff made reasonable offers in order to minimise the costs of the proceedings, to which the defendant made no relevant response. The hearing before the Full Court ran for two days and the defendant was completely unsuccessful. In those circumstances, subject to consideration of the specific arguments put forward by the defendant, it would be an appropriate case in which to order that he pay the plaintiff’s costs.
I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date:
Law Society
Ford
(1990) 170 CLR 534
(1994) 82 LGERA 236
The defendant concluded by reiterating his submission that the plaintiff could have commenced proceedings in the Supreme Court rather than in the ACAT, and by submitting that he had ceased the practice of law and, hence, there was no need to have him removed from the roll.
The plaintiff made submissions in reply which are not necessary to recite, other than to note that they referred to the decision of the High Court in Northern Territory v Sangare [2019] HCA 25; 265 CLR 164 where it was held that the impecuniosity of an unsuccessful party is, without more, not a consideration that justifies denying the successful party its costs.
The specific arguments put by the defendant in his written submissions have been summarised above. Unfortunately, the written submissions provided by the defendant only serve to reinforce the conclusion reached by the Full Court in Ford (No 2) at [140] that the defendant was unfit, and would indefinitely remain unfit, to practise as a lawyer. They contain submissions which either were scandalous, attempted to relitigate matters already determined against him, had no proven foundation in fact, or indicated a lack of understanding of the judicial process.
The specific arguments made by the defendant may be addressed relatively briefly. (a) There is no foundation for the contention that the proceedings were commenced in the ACAT purely in order to obtain costs. While it would have been open to the plaintiff to have commenced proceedings in the Supreme Court, those proceedings would have required the same fact-finding process that the ACAT was required to conduct. There was nothing inappropriate about the plaintiff bringing the proceedings in the ACAT. (b) Similarly, the allegations of disentitling conduct have no proven foundation. Insofar as it is alleged that the failure to call Mr Reis was improper, that submission cannot be accepted in circumstances where that issue was addressed during the hearing and reasons were given for the approach adopted by the court: see Ford (No 2) at [52]-[55]. (c) Insofar as the defendant pointed to a lack of financial resources, that is not supported by any evidence. He refers to having been denied an income for approximately seven years. That is a consequence of the plaintiff having refused him a practising certificate, a decision in relation to which he abandoned his appeal to the Supreme Court. In any event, neither impecuniosity per se (had it been proved), nor the circumstances that may have led to that impecuniosity, would provide a basis for declining to make a costs order in favour of the plaintiff in this case. (d) The submission relating to “acting in good faith” is unclear. Similarly, it is not clear what is meant by the submission that the defendant “has never benefited from any of these matters”. (e) There is no evidentiary foundation for the submission that the costs “of such a matter” in another State or Territory would be approximately $10,000. Nor can it be accepted, without evidence, as likely to be the case. (f) The submissions contending that the payment of $40,000 in relation to earlier proceedings would encompass the whole, or any substantial portion of, the costs of the subsequent proceedings in the ACAT, the ACAT Appeal Tribunal, the Supreme Court or the Full Court are not realistic. It is clear that, in order to perform its regulatory functions, the plaintiff would have had to incur significant legal costs in preparing and presenting its case at each level, notwithstanding the earlier proceedings.
In the circumstances, it is an appropriate case in which to order that the defendant pay the plaintiff’s costs of the proceedings. Rule 1721(2) provides that “costs of the proceeding include the costs of an application in the proceeding”. It is therefore not necessary to separately address the costs of applications made by the defendant in the proceedings. Order
The order of the Court is: (1) The defendant is to pay the plaintiff’s costs of the proceedings.