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Solicitors Self-represented (Applicant) Phelps Reid Lawyers (Respondent) File Numbers: ACTCA 49 of 2015; ACTCA 50 of 2015 ROBINSON AJ:

1. On 4 October 2016, I determined two interlocutory applications sitting as the Court of Appeal in Legal Practitioner v Council of the Law Society of the ACT [2016] ACTCA 46. I made the following orders:

2. The applications are dismissed with costs so far as they are based upon r 5604(b) of the Court Procedures Rules 2006 (ACT). 2. The Legal Practitioner give security in the amount totalling $80,000 for the costs of the Law Society of the appeals by lodging with the Registrar of the Supreme Court of the Australian Capital Territory $80,000 in cash or an irrevocable bank guarantee in the amount of $80,000 in terms satisfactory to the Registrar. 3. The Legal Practitioner is to satisfy the above order by lodging the amount of $40,000 in the manner above within 28 days from the date of this order and by then lodging a further amount of $40,000 in the manner above within 56 days from the date of this order. 4. The appeals be stayed pending the giving of the security as required. 5. If the Legal Practitioner fails to give the amount of the security, as required within twenty eight days from the date of this order, or fails to give the amount of security required within 56 days, then the appeals be deemed to have been dismissed and the Legal Practitioner is to pay the Law Society’s costs of the appeals to that date on a party and party basis. 6. The Legal Practitioner pay the costs of the Law Society of the application for security for costs on a party and party basis to be paid on the judgment in the appeal or, if dismissed under an order above, upon the dismissal of the appeal. 7. Liberty be granted to the parties to apply, limited to the working out of these orders, if any difficulty arises.

3. These orders were taken out and sealed on 3 November 2016.

4. The Legal Practitioner did not give the required security within the required 28 days.

5. On 24 November 2016, the Legal Practitioner filed an application for special leave in the High Court registry. The Legal Practitioner deposes to the fact that the application was posted from overseas by Registered Post prior to 1 November 2016.

6. On 22 November 2016, the Legal Practitioner filed a further application in the ACT Court of Appeal. It came before Elkaim J on 12 December 2016: Legal Practitioner v Council of the Law Society of the ACT (No 2) [2016] ACTCA 67. His Honour records at [2] of his judgement the orders sought as:

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.

6. For reasons which he explains in his judgment, his Honour made the following orders at [18]:

(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)

7. On 2 February 2017, the High Court refused special leave.

The present application

8. On 31 March 2017 the Legal Practitioner filed a further application in the ACT Court of Appeal. It seeks:

9. Vary the Order made by Robinson [A]J on 4 October 2016 allowing the Appellant to pay Security for Costs of the Appellant’s two Notices of Appeal amounting to $80,000.00 to the Registrar of the Supreme Court within 14 days hereof; and thereafter set down the Appellant’s two Notices of Appeal for hearing. 2. Vary the costs order made by Elkaim J on 12 December 2016 directing that each party shall bear their own legal costs in relation to the Appellant’s Application in proceeding filed on 22 November 2016.

10. In support of the application the applicant in person read his own affidavit sworn on 28 February 2017.

Costs Order of 12 December 2016

10. It is convenient to deal with this matter first. In paragraph 9(k) of his affidavit, the Legal Practitioner argues that the costs order should be varied. First, I see no reason to vary the order arising from the reasons advanced by the Legal Practitioner. Second, I am not sitting on appeal from that order. Third, the Legal Practitioner moved under r 5602 of the Court Procedures Rules 2006 (ACT). That rule allows directions to be made in relation to the conduct of appeals or applications in an appeal.

Order of 4 October 2016

11. During the course of the hearing on 5 May 2017, I drew the parties’ attention to the source of the jurisdiction to extend time for compliance with Order 5 made on 4 October 2016, notwithstanding that the time for compliance with that order had passed and the deemed result of that order had come into effect.

12. In FAI General Insurance Company Ltd v Southern Cross Exploration N.L. (1988) 165 CLR 268 (FAI General Insurance Company), the High Court dealt with an application to extend time for complying with a self-executing order after the period for compliance had expired. The application to extend time invoked a rule of the court under which the Court had general power to extend or abridge any time fixed by the rules or by judgment or order. The analogous rule in the ACT is r 6351. Although the rule is not the same, I do not see, as a matter of construction, any warrant to read down the wide terms of the jurisdiction given by the local rule. The question is whether it should be applied in the circumstances so as to extend time.

13. In FAI General Insurance Company, Wilson J, who delivered the leading judgment, after observing the very wide discretion of the rule, wrote at 283 – 284: It is a remedial provision which confers on a court a broad power to relieve against injustice. The discretion so conferred is not readily to be limited by judicial fiat. The fact that it manifestly is a power to be exercised with caution and, in the case of conditional orders, with due regard to the public policy centred in the finality of litigation does not warrant an arbitrary limitation of the power itself, not expressed in the words of the rule, so as to deny its capacity to apply to circumstances such as those which are to be found in the present case. It would be wrong to so read the rule as to deny to a court power to prevent injustice in circumstances where the party subject to a conditional order ought to be excused from non-compliance.

14. Having heard the parties on 3 May 2017, I told the parties that the application would be adjourned to a date to be fixed after 17 May 2017, to the intent that the application would be considered in light of whether or not the sum of $80,000 had been received by the Registrar as security for costs previously ordered.

15. On 17 May 2017, the Legal Practitioner paid the sum of $80,000 to the Registrar.

16. There are a number of factors to be taken into account in assessing whether to excuse the Legal Practitioner from the consequences of his non-compliance. It was not explained to me why the Legal Practitioner did not apply for a stay of the critical order pending the outcome of the special leave application prior to the 28 day time limit taking effect. If an application for special leave, for some reason, had not been filed by that time, then a draft of the application could have been exhibited to an affidavit.

17. I also have disquiet about the timing of steps taken by the Legal Practitioner and his true motivation for taking these steps in bringing this application to the point it has reached. However, I am not in a position to make findings on these matters and I refrain from doing so.

18. I am prepared to take a beneficial view, in the absence of contrary evidence from the respondent, and assess the application on the basis that an unsuccessful application for special leave has been made and that an extension of time will reinstate the existing opportunity to pay the amount of security required. The Legal Practitioner has taken up that opportunity within the 14 day period of the adjournment.

Orders

19. I make the following orders:

(a) Order that the time for the Legal Practitioner to give security in the amount of $80,000 for the costs of the Law Society of the appeals be extended until 17 May 2017.

(b) Order that the application be otherwise dismissed.

(c) Order that the costs of this application be costs in the appeal.

I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Robinson.

Associate:

Date: 25 May 2017