31 March 2011. At that time, he was an Australian legal practitioner who held a local practising certificate and there were proceedings pending before the ACAT in that the penalty part had not been dealt with. The matter did proceed further in May 2010 before ACAT and ultimately ended up in the Supreme Court.

1. I have some sympathy for the legal practitioner's argument in paragraph 14 of his submissions made on 25 August 2011, where he concludes "the matter has progressed on to the Supreme Court and once the appeal is finalised in the Supreme Court the costs order may follow the event there".

1. He further states, in paragraph 10 of this submission, "In my submission section 433(1) - (2) may have been applicable if the matter had not been referred to the Supreme Court as the Tribunal has found that the final hearing was not concluded until the penalty was handed down. As the penalty has been handed down the matter has been concluded by the ACAT."

1. However, as at 31 March 2010, the matter had not been concluded before the ACAT. As the practitioner quite rightly points out in paragraph 10 of his submissions, that occurred later.

1. In not deciding the question of costs on 31 March and effectively reserving the same, I did feel that the matter would be proceeding to the Supreme Court and once any appeal was finalised there any costs order would follow the event all the way back down to the General Division of the ACAT, including the interlocutory proceedings in the appeal AA 3 of 2010.

1. Effectively, the reasoning of the practitioner here, and indeed what I was thinking at that time, was it would be finalised at the end and if the appeal went against the practitioner the Law Society would be entitled to costs on a party-party basis for the matter on appeal before me (AA 3 of 2010). However, the Law Society is, in my view, entitled to place the issue of costs back before me. Either way, in my view, would be appropriate.

1. The Society and the practitioner have a very different interpretation of the cases cited by each other (The Appellants v The Council of the Law Society of the ACT and the Legal Practitioner [2011] ACTSC 133, Ezekiel-Hart v Law Society (2010) ACTR 15 and Buzzle Opeations Pty Ltd v Apple Computer Australia [2009] NSWSC 225; (2009) 74 NSWLR 469 at 479-480). I must say that I have a preference in relation to the interpretation of those cases which is more in line with what the Law Society is proposing than what the practitioner is and accordingly, I adopt the interpretation given by the Law Society in relation to those cases.

1. The Law Society in its submissions pressed the view that the practitioner in conducting his appeal before the ACAT Appeal Division proceeded entirely at his own risk. The Society forcefully submitted that the appeal was premature, incompetent and put the Society to the cost of having it struck out and put the Tribunal to the time of having to deal with it.

1. I struck out the appeal as incompetent on 31 March 2010. The Society also stated that prior to the hearing of the appeal, they filed submissions which they attached in this particular matter as well. Those submissions were dated

17 March 2010. They stated that the Society corresponded with the then solicitors for the practitioner pointing out the incompetency of the appeal and despite this, the practitioner persisted with his appeal which he subsequently lost. There is much strength in their argument that it would be unjust for the Society in those circumstances to bear their own costs of successfully having the appeal struck out as incompetent.

1. It is a commonly accepted principle of law in the ACT and indeed in civil matters generally in Australia that where there is a power to order costs in general terms similar to section 433, the usual rule is that costs follow the event. Indeed in the ACT for non-indictable matters, it is also found in the Magistrates Court Act for criminal matters that do not end up in a trial before the Supreme Court.

1. Given that the note at the end of section 433(4) is not relevant, it is my view that in all the circumstances of this case, costs should follow the event. Whilst I am not overly fussed as to whether this occurs after all the Supreme Court matters are dealt with or now, in my view, as the point has been now raised by the Law Society as the successful party in AA 3 of 2010, it would be wrong of me not to adhere to their requests that the costs order should be made.

1. If there are matters still before the Supreme Court and if the practitioner is successful in them, no doubt this order will be reversed and the practitioner would be the beneficiary. However, the general rule should apply. It applies equally in interlocutory and preliminary matters as it does to matters that are finalised (see, the very clear statement in section 433(4) "The ACAT may make orders requiring an Australian legal practitioner in relation to whom a proceeding is pending before the Tribunal to pay costs on an interlocutory or interim basis".).

1. Accordingly, I find that the Law Society is successful in its application for costs. An order will be made that the practitioner in this case, the unsuccessful appellant in AA 3 of 2010, shall pay the costs of the Law Society on a party-party basis. Costs are to be agreed between the parties and if not, costs are to be taxed.

TRIBUNAL MEMBER: Mr W G Stefaniak, Appeal President

DATE/S OF DECISION: 9.11.11 PLACE: CANBERRA

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

[1] This decision was previously anonymised and cited as The Legal Practitioner and Council of the Law Society of the Australian Capital Territory [2011] ACAT 77 pursuant to section 423A of the Legal Profession Act 2006. As the appeal period has ended, the practitioner has now been identified in the citation of this decision. The reasons for decision otherwise remain unchanged from the date of publication.