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Submissions

2. In its submissions dated 5 February 2026, the Law Society recognised that the usual rule is that, in the absence of special features warranting a different order, costs follow the event. It pointed out that the Act does not provide a statutory rule requiring either party to pay the costs of an appeal under s 81(1)(a) of the Act.

3. It pointed out, however, that there are specific statutory rules in disciplinary proceedings. The ACT Civil and Administrative Tribunal (ACAT) may only order the Law Society to pay costs if a practitioner is not guilty of unsatisfactory professional conduct or professional misconduct and the ACAT considers that special circumstances justify making an order: s 433(3) of the Act. In the absence of such special circumstances, if the practitioner is not guilty of unsatisfactory professional conduct or professional misconduct, then the ACAT may order the practitioner to pay the Law Society’s costs if it is satisfied that the only or main reason why the proceeding was started in the ACAT was a failure of the practitioner to cooperate with the Law Society or that there is some other reason justifying the making of an order: s 433(2) of the Act.

4. The Law Society then made the following submissions: (a) Although the appellant obtained an order in his favour, he was “not a successful party in an unqualified sense” because of the finding that he had breached his fiduciary obligations: LP7 at [141], [144]. The court also found that it was inappropriate for him to have proposed a payment in return for not providing services: LP7 at [130]. (b) There was no finding made that the Law Society had acted unreasonably when it refused to renew the appellant’s practising certificate. (c) The appellant had not conceded or shown insight into the breaches of his fiduciary obligations and that continued up to and during the hearing. (d) The combination of those circumstances and the “statutory intent evinced by s 433” indicated that the court should make no order as to costs.

5. In submissions dated 20 February 2026, the appellant submitted that: (a) He obtained the whole of the relief which he sought and there was no relevantly dominant or separable issue which would qualify his prima facie entitlement to costs. (b) Although the court was critical of the appellant’s conduct, that did not provide a basis upon which to withhold costs as the costs discretion does not have a punitive dimension. There was nothing in the manner in which the proceedings were conducted which would warrant a qualification on his entitlement to costs. (c) Contrary to the submissions made on behalf of the Law Society, the appellant’s cooperation, insights and concessions before the court were not materially different to the position conveyed by his early responses to the Law Society, including his comprehensive response on 25 July 2024. (d) The fact that a particular statutory rule has been provided in relation to costs in disciplinary proceedings but not in relation to appeals to the Supreme Court like the present proceedings suggests that different approaches are warranted in the two categories of case. (e) The question of whether the Law Society acted unreasonably in refusing to renew the appellant’s practising certificate is either “irrelevant or marginally relevant” as the entitlement to costs is not dependent upon proof of unreasonableness.

6. In submissions in reply, the Law Society contended that if its submissions in chief were not accepted, it should only be required to pay 50% of the appellant’s costs. That was on the basis that the central issue in the appeal was whether or not the appellant’s conduct amounted to a breach of his fiduciary obligations and on that issue the Law Society was successful.

Consideration and decision

7. The general rule is that costs follow the event. The power exercised by the Law Society is a statutory power to renew or refuse to renew a practising certificate. The power being exercised by the Supreme Court is a statutory power to review that decision.

8. The power being exercised by the Supreme Court is closely associated with the power of the court to regulate the admission of legal practitioners because the refusal of a practising certificate precludes performance of the role to which the legal practitioner was admitted by the court. It may be that this proximity is the reason why the legislature has chosen not to prescribe any particular statutory rule in relation to costs as it has done in relation to disciplinary proceedings in the ACAT. Whatever the reason, the fact is that the legislature has not prescribed any rule and, as a consequence, the general provision in relation to costs provided by r 1721 of the Court Procedures Rules 2006 (ACT) applies.

9. The appellant applied for renewal of his practising certificate. That was refused in circumstances where he had provided a clear and complete response to the complaint made against him. His appeal was contested. He was successful. He achieved the relief that he sought.

10. The fact that the appellant’s underlying conduct was found to have involved a breach of his obligations has some relevance to, but is not determinative of, the question of costs. Cases may be imagined in which the underlying conduct of a legal practitioner is either so blameworthy or so blameless that it might be very relevant to how the costs of an appeal under s 81 are dealt with. However, in the present case, the position was not so clear. The ultimate issue was whether or not the decision to refuse to renew the appellant’s practising certificate was correct. The court found that it was not. There was no significant change in position as between the date when the Law Society made its decision and the decision of the court that would affect the appellant’s entitlement to costs. We do not accept that the position adopted in relation to breach of fiduciary duty was so clear that the failure to admit such a breach as distinct from the inappropriateness of the conduct is of any significance in relation to costs.

11. It is relevant, in exercising the costs discretion, to take account of the important regulatory function being undertaken by the Law Society. However, it is also relevant to take into account the gravity of the consequences of the decision made by the Law Society, terminating the appellant’s right to practise as a lawyer from the date of the decision up until the date of the decision of the Supreme Court — a period of 12 months. The statutory intervention with regard to costs orders in other forums does not extend to this proceeding, nor does it detract from the fundamental purpose underlying a costs order, which is compensatory.

12. It is not significant that the Supreme Court made no finding that the Law Society’s refusal to renew the appellant’s practising certificate was unreasonable. The court was not called upon to consider that question and it is generally undesirable for the court to make any such finding in those circumstances. It is not desirable to make any such finding for the purposes only of determining the question of costs. It is sufficient to note that the factual contentions of the appellant, which he had advanced since 25 July 2024, were accepted by the Law Society and the court and, having regard to those facts, the court allowed the appeal.

13. We do not consider that the question of breach of fiduciary obligations was so dominant or separable that it warrants apportionment of the costs between those issues upon which the appellant succeeded and those upon which he did not, as suggested by the Law Society’s submissions in reply. The existence or not of breaches of fiduciary obligations was significant but not determinative. It formed one of the two substantial bases upon which the Law Society said that the appellant was not a fit and proper person to hold a practising certificate. The outcome of the appeal turned upon those two issues, an understanding of the circumstances in which they arose and various other considerations relating to the appellant’s fitness.

14. In the circumstances of this case, it is appropriate that the Law Society pay the costs of the appellant.

Gross sum order

15. In the event that the appellant was awarded costs, he sought that those costs be awarded on a gross sum basis. He did not seek to include in the gross sum order any fees relating to the costs application itself, with the intention that they not be otherwise recoverable.

16. For the purposes of the application for a gross sum costs order, the appellant’s solicitor provided affidavit evidence of the solicitor’s fees, solicitor’s disbursements and counsel’s fees billed up until a date shortly after the hearing of the appeal. The solicitor’s fees were $25,233.09. Disbursements other than counsel’s fees were $1827.82. Counsel’s fees were $31,625. The appellant submitted that it would be appropriate to order that the respondent pay an amount representing 70% of the solicitor’s fees and 100% of the disbursements including counsel’s fees. That amounts to $51,115.98.

17. The Law Society indicated that if costs were awarded against it, and the court considered that the appellant should be awarded the entirety of his costs, it did not oppose the gross sum costs order sought by the appellant.

18. Having regard to the amount of costs claimed, the evidence relating to its method of calculation, the attitude of the Law Society and the desirability of bringing the proceedings to an end without the further incurring of costs, it is appropriate to make a gross sum costs order in the amount sought. Order

19. The order of the Court is: (1) The respondent is to pay the appellant’s costs of the appeal fixed in the sum of $51,115.98.

I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: