• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

ELKAIM J:

1. The matter before the Court today is an application by the legal practitioner, filed on 22 November 2016, seeking three orders. In hearing the application, I am sitting as a single judge of appeal under s 37J of the Supreme Court Act 1993 (ACT).

2. The first order the applicant requests is that the orders made in this court on 4 October 2016, and taken out by the Deputy Registrar, on 3 November 2016, be declared invalid. Secondly, he wishes the orders made on 4 October 2016 to be stayed pending an appeal to the High Court. Thirdly, he wishes to have the matter relisted for further directions following a decision in the High Court.

3. The application is supported by an affidavit of the applicant affirmed on 21 November 2016.

4. The application arises from a decision of Acting Justice Robinson made on 4 October 2016. (Legal Practitioner v Council of the Law Society of the ACT [2016] ACTCA 46)

5. His Honour was then sitting as a single judge in the ACT Court of Appeal. He was considering an application made by the respondent (the Law Society) for appeals that had been lodged by the present applicant (the legal practitioner) from orders made by Burns J, on 5 November 2015, dismissing the legal practitioners appeals from orders made in the ACAT.

6. A full history of the proceedings can be found in the decision of Acting Justice Robinson commencing at paragraph 8.

7. It can be seen from paragraph 43 of the decision that His Honour sets out the orders he intends to make, “subject to hearing the parties as to the precise form of order.”

8. In the current application the applicant complains that there was no consultation about the form of the order; he says it was probably executed after 3 November 2016, which is the date it bears, and he suggests there has been bias on the part of this court in, if I understand him correctly, allowing the orders to be made without him being consulted.

9. Every one of the allegations I have just set out is without foundation, let alone evidence.

10. Firstly, the orders made by the Deputy Registrar on 16 November 2016 are precisely the orders set out in the judgment of 4 October 2016.

11. Secondly, the email correspondence on the court file following the handing down of the judgment indicates that the applicant was invited to make comments on the judgment, and he did so, but not on the form of the orders. His email to the court is dated 6 October 2016.

12. Thirdly, there is simply no evidence to suggest the Deputy Registrar signed the orders other than on 3 November 2016. As for the allegation of bias on the part of the Court, this again is without any evidence. As I have already mentioned, the Deputy Registrar has simply recorded the orders that had been made on 4 October 2016. This is stated plainly in the document.

13. The applicant pointed out what he says is an error in the Deputy Registrar’s order, namely that it records him as being an appellant in person whereas in fact he was represented by a Mr O’Keefe. The difficulty with that observation is that it is the same description of representation as appears in the judgment of 4 October 2016. I also note, somewhat uniquely, that although submissions were made today by the applicant himself, a solicitor was present in court, from Mr O’Keefe’s practice, apparently acting on his behalf.

14. In reality, this application is one for amendment of the security for costs orders, and in particular, for an extension of time to pay. The point made by the applicant is that the orders, being essentially self-executing orders, have operated in such a way, because he has not met the security payments, to deny him the appeals that he lodged in the Court of Appeal and which Acting Justice Robinson refused to strike out.

15. I can understand the applicant’s sense of grievance at the operation of the orders but that is precisely why he has appealed to the High Court. He has pointed out that he does not have a right of appeal to the High Court and requires special leave to appeal. He has observed that the granting of special leave may not simply be a matter of deciding if Acting Justice Robinson’s orders are wrong.

16. The difficulty is that the orders were made by Acting Justice Robinson and, because the payment requirements were not met, the applicant’s appeals have automatically, under the orders, been dismissed. I am not in a position to now change the orders because it is not open to me, to effectively hear an appeal from those orders.

17. The best I can do, and this is with the consent of the respondent, is to order a stay of the enforcement of the costs orders that have taken effect as a result of the applicant’s failure to make the payments under the security for costs orders made on 4 October 2016.

18. I make the following orders:

(i) Except to the extent set out in Order (ii) below, the application filed on 22 November 2016 is dismissed.

(ii) The enforcement of the costs orders in favour of the respondent, arising from the orders made by Acting Justice Robinson on 4 October 2016, is stayed until 28 days after any decision by the High Court either refusing special leave to appeal, or if special leave is granted, the subsequent appeal to the High Court is dismissed.

(iii) If the applicant is successful in having the security for costs orders overturned in the High Court, the applicant has leave to relist the matters in this court on 14 days notice to the respondent.

(iv) The applicant is to pay the respondent’s costs of the application however this order is stayed in the same terms as Order (ii).

I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: 12 December 2016