Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA

Citation : NEIL and LEGAL PROFESSION COMPLAINTS COMMITTEE [2011] WASAT 25

Leave to appeal - Question of law - Mandatory considerations - Turns on own facts

Recusal application - Whether reasonable apprehension of bias

Legal Profession Act 2008 (WA) , s 410, s 413, s 417, s 421, s 424, s 425, s 428, s 432, s 435, s 589

State Administrative Tribunal Act 2004 (WA), s 54, s 105(1)

Application for recusal and application for leave to appeal dismissed

First Respondent : Legal Profession Complaints Committee

Chief Executive Officer, Department for Child Protection v Hardingham [2011] WASCA 262

Lashansky v Legal Practice Board [2011] WASCA 42

Michael Wilson & Partners v Nicholls [2011] HCA 48

Mifsud v Campbell (1991) 21 NSWLR 725

Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273

Neil and Legal Practitioners Complaints Committee [2011] WASAT 25

Neil v Legal Profession Complaints Committee [No 2] [2011] WASCA 66

Osland v Secretary, Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320

Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361

The Legal Practitioners Complaints Committee v De Alwis [2006] WASCA 198

The Legal Practitioners Complaints Committee v Lashansky [2007] WASC 211

1 PULLIN JA: I have read the reasons of Murphy JA. I agree with them.

2 The appellant made an application to the court that I should be disqualified from sitting to hear the appeal. The application was dismissed with reasons to be given later. These are the reasons.

3 The appellant contended that I should recuse because of a reasonable apprehension of bias on my part. Such an allegation requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that a judge might not bring an impartial mind to bear upon the issues that are to be decided: Michael Wilson & Partners v Nicholls [2011] HCA 48 [67]. The facts and circumstances which the appellant relied upon as giving rise to the apprehension of bias were disclosed in three emails the appellant sent to the Chief Justice dated 18, 20 and 21 May 2012 and in oral submissions. They were that:

(a) I was the chairman of the Legal Practitioners Complaints Committee between 1993 and 2001;

(b) the decision in Neil v Legal Profession Complaints Committee [No 2] [2011] WASCA 66 [Neil No 2] was wrong (I was a member of the court which decided that appeal);

(c) in the course of the reasons for decision in Neil No 2, a person who the appellant accused of committing criminal offences was referred to by me by the initial 'N' rather than his full name;

(d) I had altered the transcript to delete some words uttered by the appellant so that the transcript then read as though the appellant was making submissions which were 'mumbo jumbo'.

4 The first point raised has no merit. The events with which this case were concerned all took place after 2001 which was when I ceased to be chairman of the Committee. A similar point has been raised in other cases: see Lashansky v Legal Practice Board [2011] WASCA 42; The Legal Practitioners Complaints Committee v Lashansky [2007] WASC 211 and The Legal Practitioners Complaints Committee v De Alwis [2006] WASCA 198. For the reasons given in those cases, there is no merit in this first point.

5 The second point has no merit. The decision was not 'wrong'. The appellant applied for special leave to appeal to the High Court against that decision and according to the appellant, special leave was refused. In any

event, merely alleging that an earlier decision was 'wrong' gives rise to no reasonable apprehension of bias.

6 The third point has no merit. It was appropriate to refer to the person by initial in circumstances where the appellant raised allegations of criminal conduct against a person not a party to the proceedings.

7 As to the fourth point, it emerged that the appellant was referring to passages in the transcript where the transcription service, instead of typing all of the words read by a person from a document, types the opening words and the last words of the material being read. This is standard procedure in the court and it was not as a result of any action by me. In fact, the court did not have a copy of the transcript, although it appears that the appellant asked for, and had been supplied with, a copy of the transcript by the transcription service.

8 For those reasons the application that I should be disqualified, was dismissed.

9 BUSS JA: I agree with Murphy JA that, for the reasons he gives, the application for leave to appeal should be dismissed. For the reasons to be published by Pullin JA, I joined in the order made by the court on 22 May 2012 dismissing the application that Pullin JA should be disqualified from hearing the application for leave to appeal.

10 This is an application for leave to appeal a decision of the State Administrative Tribunal (the Tribunal) dated 14 February 2011.

11 The applicant had made a number of complaints against certain legal practitioners including, relevantly for present purposes, a complaint against the second respondent (the practitioner) to the first respondent (the Committee). The applicant's complaint was that the practitioner had engaged in unsatisfactory professional conduct and/or professional misconduct. The Committee had found that the complaints were unreasonable and dismissed the complaints. The applicant applied to the Tribunal under s 435 of the Legal Profession Act 2008 (WA) to review the Committee's decision to dismiss his complaints. As the Committee had found that the complaints were unreasonable, the applicant required leave from the Tribunal to have the Committee's decision reviewed: s 435(2) of

the Legal Profession Act. The Tribunal refused to grant leave to review the Committee's decision to dismiss the applicant's complaint against the practitioner: Neil and Legal Practitioners Complaints Committee [2011] WASAT 25.

12 It is from this decision that the applicant seeks leave to appeal to this court under s 105(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). An appeal may only be brought on a question of law: s 105(2) of the SAT Act. An appeal on a question of law is in the nature of judicial review proceedings; the existence of a question of law is not merely a qualifying condition for, or a gateway to, an appeal, but is the subject of the appeal itself; an appeal on a question of law does not, and should not, open the door to an appeal by way of rehearing. See Osland v Secretary, Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320 [18], [20] - [21]; Chief Executive Officer, Department for Child Protection v Hardingham [2011] WASCA 262 [43] - [44].

13 In this court, the applicant announced that he was a solicitor, and appeared for himself. The respondents to this application were the Committee and the practitioner, who appeared by their respective counsel. The applicant made an application at the commencement of the hearing for Pullin JA to recuse himself. The application was said to be made to the coram (the procedural nature of the application was not debated). The application for recusal was dismissed, with reasons to be published. Pullin JA has addressed those matters in his reasons. The substance of those reasons, with which I agree, formed the basis for my concurrence in the dismissal of the recusal application.

14 Relevantly for present purposes, the principles relating to the grant of leave were stated in Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361.

15 It is convenient to commence by outlining the relevant statutory framework.

The Legal Profession Act

16 By s 410 of the Legal Profession Act, a complaint may be made to the Committee about an Australian legal practitioner, by any person who has a direct personal interest in the matters alleged in the complaint.

17 By s 413(1) of the Legal Profession Act, the Committee is required 'as soon as practicable after a complaint is made' to provide written notice to the practitioner of, amongst other things, the 'nature' of the complaint, subject to certain exceptions set out in s 413(2). Section 413(6) provides that nothing in s 413 requires the Committee to give written notice to the practitioner until the Committee 'has had time to consider the complaint, seek further information about the complaint from the complainant or otherwise undertake preliminary inquiries into the complaint, and properly prepare the notice'.

18 Section 417(1) of the Legal Profession Act provides that the Committee 'may' suggest that the matter be mediated if the Committee considers that a complaint is capable of resolution by mediation. Section 417(2) provides that subs (1) does not apply if the Committee considers that the practitioner 'would be likely to be found guilty of professional misconduct if proceedings were instituted' in the Tribunal in respect of the complaint.

19 By s 421(2), the Committee must investigate each complaint. By s 424, after the investigation under s 421 is completed, the Committee must dismiss the complaint under s 425, take action under s 426 (ie in certain circumstances make certain orders itself), or refer the matter to the Tribunal under s 428 of the Legal Profession Act. By s 432(1)(a), the Committee is obliged to inform the complainant of any decision to dismiss the complaint, and, by s 432(2), the Committee must provide a statement of its reasons in relation to the decision and notify the complainant of the complainant's right, if any, to apply to the Tribunal for a review of the decision.

20 Section 589 of the Legal Profession Act provides, in effect, that if the Committee suspects, on reasonable grounds, after investigation or otherwise, that a person has committed an offence against any Act or law, the Committee must report the suspected offence to the appropriate prosecuting authority and make available documents, relevant to the suspected offence, which are in its possession or under its control.

22 The applicant had commenced certain proceedings in the Supreme Court of Western Australia against (amongst others) a Mr Nugent in relation to a company in which they had both been involved. The applicant (as plaintiff) was represented by Cocks Macnish. The defendants were represented by Jackson McDonald, as agents for the Melbourne solicitors. The practitioner was an employee of Jackson McDonald at the time.

23 On 1 March 2005, an injunction was granted in favour of the applicant (as plaintiff in the action), designed to give him and his solicitors access to certain records of the defendant companies. The orders included liberty to apply.

24 The applicant considered that the defendants had not complied with the court's orders with respect to the production of documents, and made certain complaints to the Committee about (relevantly) the practitioner's conduct in that regard.

25 The Tribunal found at [30] and [33] that the Committee correctly understood that the applicant's complaints were, in essence, that the practitioner had:

• failed to ensure that his clients fully complied with their obligations (by statute and court order) to disclose certain documents;
• breached a personal undertaking personally to produce those missing documents requested by the complainant; and
• acted for multiple clients with conflicting interests.

26 In relation to the first complaint, the Tribunal found, at [48] - [58], [60], in effect, that:

(a) the practitioner had no direct contact with the defendant companies and that, quite appropriately, he reported to and received his instructions from the Melbourne solicitors;

(b) when the applicant had expressed concerns to the Supreme Court about missing documents, the practitioner agreed to, and did, forward a list of descriptions of the documents said to be missing, to the Melbourne solicitors, so that they could deal with the applicant's concerns;

(c) there was no evidence to indicate that Jackson McDonald ever assumed responsibility for collation and management of the production of the defendants' documents, and there was no obligation for them to do so in the circumstances;

(d) there has been no determination by the Supreme Court that there had been non-compliance with the court's order of 1 March 2005;

(e) neither the applicant nor his solicitors had taken advantage of the liberty to apply under that order;

(f) the suggestion by the applicant that the orders of 1 March 2005 had not been complied with was no more than an assertion by the applicant and the practitioner was not obliged to accept the applicant's assertions;

(g) Jackson McDonald's obligation was to refer questions from the applicant or his solicitors to their principals in Victoria, so that they could deal with the matter, and neither the practitioner, nor Jackson McDonald, had any responsibility to go further than they did; and

(h) the practitioner had no obligation to do anything more about the alleged non-compliance by the defendants with the terms of the order of 1 March 2005.

27 The Tribunal concluded that there was no reasonable likelihood that the Tribunal would find the practitioner guilty of unsatisfactory professional conduct or professional misconduct by failing to ensure that the defendants had fully complied with their obligations.

28 As to the second complaint, the Tribunal found, at [59] - [61], that the practitioner had not given a professional undertaking personally to produce missing documents requested by the applicant.

29 As to the third complaint, the Tribunal found, in effect, at [62], that there was no evidentiary basis for the allegation that Jackson McDonald or the practitioner had acted with a conflict of interest.

30 At the outset, it should be noted that it is not contended by the applicant that the findings of fact made by the Tribunal were made in the absence of evidence. Nor do the applicant's proposed grounds of appeal expressly challenge the findings referred to in [25] - [26] and [28] - [29] above or articulate any legal error in those findings of the Tribunal. Also, the applicant's oral and written submissions largely involved assertions of fact without reference to evidentiary material.

31 Ground 1 alleges that the Tribunal failed to take into account an allegedly relevant consideration, namely, that the practitioner had a serious conflict of interest in the proceedings in the Supreme Court. The ground and the submissions in support of it in this application assume, but do not establish, the existence of a conflict. The Tribunal found that there was no evidence to support the allegation of a conflict of interest. The allegation that the Tribunal failed to take into account that there was a conflict of interest does not grapple with the Tribunal's express finding that there was no evidence of a conflict. That finding is not directly challenged in the grounds and the submissions advanced by the applicant do not provide any basis from which to discern any error in the finding in general, or any error giving rise to a question of law in particular. The applicant, in the course of oral submissions, made the general assertion that the Tribunal had failed to understand the legal concept of a conflict of interest, but did not point to any part of the Tribunal's reasons in which the alleged misconception manifested itself. The allegation remained unsubstantiated assertion. There is no merit in ground 1.

32 Ground 2 alleges, in effect, that the Tribunal failed to take into account that the Committee had allegedly denied the applicant natural justice. The allegation rests essentially upon two bases. First, the applicant contends that he was denied natural justice when the Complaints Officer advised the applicant's agent, by letter dated 10 July 2009, that if the Committee resolved that the matter required any further investigation, the agent would have the opportunity to make further submissions in due course, but, in the meantime, the applicant was requested not to provide a response to certain correspondence from the practitioner dated 9 July 2009. Secondly, it is alleged that the Complaints Officer should have disclosed certain documents relevant to the Committee's consideration of whether to commence disciplinary proceedings against the practitioner or dismiss the complaint. It is alleged that the Committee was obliged to disclose the documents to the applicant when it was 'contemplating making an adverse decision' against him (the applicant), and that instead it improperly claimed legal professional privilege over them.

33 I will assume, without deciding, that the Committee was obliged to afford the complainant (as opposed to the practitioner the subject of the complaint) natural justice in relation to its investigation into the complaint. Neither matter relied on by the applicant affords an arguable basis to sustain the allegation of a denial of procedural fairness. As to the first matter alleged by the applicant, the Tribunal recorded in its reasons the general course of complaints made by or on behalf of the applicant to the Committee, and how the Committee dealt with them, over the period May 2006 to July 2009: SAT reasons [10] - [29]. The communications in relation to the complaint, from the applicant's agent to the Committee, were 'voluminous': SAT reasons [33]. The applicant was given ample opportunity to address his complaints to the Committee over that period. The advice on behalf of the Complaints Officer to the effect that a response to a particular letter was not required unless the Committee resolved that the matter required further investigation, did not, when viewed in the context of the history of the complaint, amount to any denial of natural justice.

34 As to the other basis alleged, first, no factual foundation for the allegation that privilege was improperly claimed was disclosed in the applicant's submissions. Secondly, the Committee notified the applicant of its decision and gave reasons for its decision in accordance with s 432(2) of the Legal Profession Act. There is nothing to show why, in the circumstances, natural justice required the Committee to provide to the applicant communications, whether privileged or otherwise, passing from the Complaints Officer to the Committee for the purposes of the Committee's decision. There is no merit in ground 2.

35 Ground 3 alleges, in effect, that the Tribunal's decision was manifestly unreasonable in the sense that it was so unreasonable that no reasonable tribunal could have reached that decision, and that the Tribunal failed to take into account two mandatory considerations. One is that the Committee's decision was 'wrong', or at least attended with sufficient doubt to justify the grant of leave. The other is that the practitioner 'had failed to provide the Appellant and his solicitors Cocks Macnish with all [company] documents for inspection in defiance of a WA Supreme Court order dated 1 March 2005 wherever the [company] documents may be located'. These allegations, and the submissions in support, are circular in nature and simply assume, but do not begin to demonstrate, any error in general, or any error giving rise to a question of law in particular. Further, the alleged failure to provide documents assumes, in the absence of evidence or of any finding by the court or by the Tribunal, that there had been non-compliance with the court's orders dated 1 March 2005. There is no merit in ground 3.

36 Ground 4 alleges that the Tribunal failed to take into account allegedly relevant considerations, namely, that the practitioner had an overriding duty as an officer of the court, including 'obligations to explain the discovery/inspection process' and 'to investigate the position ... by requiring information about the existence and whereabouts of the potentially relevant documents' and, that, in effect, he breached his duty by 'ongoing failures to provide the Appellant and his solicitors' with the relevant documents. As to this ground, the applicant did not seek to demonstrate any arguable error in the Tribunal's findings referred to in [26] above. It cannot be supposed that the Tribunal did not take into account that the practitioner was an officer of the court when it made those findings. Further, the allegation that there were 'ongoing failures' to provide relevant documents proceeds on the assumption, which has not been established, that there was non-compliance with the order. There is no merit in this ground.

37 Ground 5 alleges that the Tribunal erred in failing to take into account two allegedly mandatory considerations, namely, that the applicant had described himself in submissions and correspondence as a victim of crime by Mr Nugent and that the Committee had not complied with s 589 of the Legal Profession Act by failing to refer suspected offences to a prosecuting authority. Neither is a mandatory consideration in relation to the Tribunal's decision not to grant leave to review the Committee's decision to dismiss the applicant's complaint against the practitioner. There is no merit in this ground.

38 Ground 6 alleges that the Tribunal denied the applicant procedural fairness by refusing to allow him to call witnesses to give evidence in support of his application to seek leave to review the Committee's decision. As to this, the Tribunal determined that the application for leave to review should be on the papers, having heard and addressed the applicant's submissions as to why he should be permitted to call oral evidence. That decision was essentially a procedural matter. The Tribunal dealt with the applicant's interlocutory application to adduce oral evidence in extensive detail in its reasons: [34] - [42]. No conceivable error or question of law is disclosed. There is no merit in this ground.

39 Ground 7 contains, in effect, three allegations concerning failures to take into account allegedly mandatory considerations. The first is that the Tribunal failed to take into account the existence and contents of certain correspondence between the applicant and the Hon Justice Murray in 2006 in relation to the applicant's complaints about the alleged non-compliance with the order of 1 March 2005. Clearly this was irrelevant, and was not a mandatory consideration. The second is that the Committee had not initiated a process of conciliation or mediation for the resolution of the applicant's complaint. Under s 417(1) of the Legal Profession Act, the Committee 'may' suggest that a matter be mediated if it forms the view that the complaint is 'capable of resolution by mediation', subject to subs (2). The potential for the Committee to exercise its discretion to refer a matter to mediation was plainly not a mandatory consideration required to be taken into account by the Tribunal. Moreover, in the context of this application, the applicant's contention is an unusual one, because had the Committee formed the view that the practitioner would be likely to be found guilty of professional misconduct if proceedings were commenced in the Tribunal (which is, in effect, the applicant's principal contention), the Committee would have been precluded from referring the matter to mediation by virtue of s 417(2) of the Legal Profession Act. The third allegation is to the effect that the Tribunal failed to take into account that the Committee should itself have, in effect, required the practitioner to provide the documents sought by the applicant. However, the Committee's role was to investigate the complaint and to take the steps required of it by s 424 of the Legal Profession Act. There is no basis for the asserted mandatory consideration. Accordingly there is no merit in ground 7.

40 Ground 8 alleges that the Tribunal failed to take into account an allegedly mandatory consideration, namely, that the Tribunal had failed to consider all relevant legal decisions on the topic of a solicitor's duty to the court. There is no mandatory consideration of the kind alleged. Moreover, the question was not whether the practitioner owed duties to the court, but whether the practitioner had breached any relevant duty. There is no merit in this ground.

41 Ground 9 alleges that the Tribunal failed to take into account an allegedly mandatory consideration, namely, that the practitioner had, in effect, misled the applicant's solicitors and the Supreme Court concerning the provision of documents. On the Tribunal's findings, there is no foundation for the allegation that the practitioner misled the applicant's solicitors or misled the court. Moreover, the Tribunal found that the Committee correctly summarised the applicant's complaint in the three respects referred to at [25] above. There is no challenge to this finding. None of the three aspects of complaint asserted that the practitioner had misled the applicant's solicitors or the court. Further, insofar as this ground raises fresh allegations of fact, none of the matters asserted give rise to any proper foundation for a complaint that the practitioner was guilty of misleading conduct as alleged. There is no merit in this ground.

42 Ground 10 alleges, in effect, that the Tribunal failed to take into account an allegedly mandatory consideration, namely, that the Committee had failed 'to comply with [its] procedures', including by failing to provide to the practitioner certain correspondence from the applicant or his agent concerning his complaint about the practitioner, and by failing to assist in a resolution of the complaint by conciliation or mediation. This ground should be rejected. By s 413(1) of the Legal Profession Act, the Committee was obliged to provide to the practitioner the nature of the complaint, and not every document associated with it. The allegation that the Committee should have referred the matter to mediation has been addressed, and rejected, in relation to ground 7. Furthermore, the way in which the Committee applied its internal procedures to the particular circumstances of the case was a matter for the Committee. There was no relevant mandatory consideration as alleged in ground 10.

43 Ground 11 alleges that the Tribunal failed to take into account an allegedly mandatory consideration, namely, that the practitioner had encouraged the defendants to 'breach the law by not providing [the] Appellant with all [company] documents for inspection'. On the findings made by the Tribunal, there is no basis for this contention. Nor did the applicant point to any material which could be said to provide any proper basis for the allegation. Ground 11 has no merit.

44 Ground 12 alleges that the Tribunal failed to take into account two allegedly mandatory considerations. One is that the Tribunal failed to refer the matter to mediation under the SAT Act. That, however, was a procedural matter in the exercise of the Tribunal's discretion under s 54 of the SAT Act, and it was not a mandatory consideration required to be taken into account by the Tribunal in its consideration of the applicant's application for leave to review. Secondly, it was alleged that the Tribunal failed to take into account that the Committee had not disclosed to the Tribunal the documents referred to in ground 2. For the reasons given in relation to ground 2, there in no substance to this complaint.

45 Grounds 13 and 15(a) allege that the Tribunal failed to take into account an allegedly mandatory consideration, namely, the 'contents' of two affidavits of the applicant dated 10 February 2005 in certain proceedings in the Supreme Court. Copies of the affidavits were not included in the appeal books and we were not taken to them. The applicant, nevertheless said, without dispute from the respondents, that the affidavits referred to allegations of documents which were allegedly illegally withheld, and matters which raised 'a suspected offence and breaches of section 132 of the WA Criminal Code'. The applicant also said that the affidavits referred to the solicitor having allegedly acted not in the best interests of the company in question, but rather in the interests of other directors (Mr Nugent and a Mr Szuch). The applicant said, in oral submissions, that these affidavits were sworn in support of his application in the underlying proceedings, but that the matters and allegations deposed to were not admitted by the defendants in those proceedings.

46 These grounds do not raise a question of law. There is a difference between a failure to take into account relevant considerations on the one hand, and particular pieces of evidence on the other: Paridis v Settlement Agents Supervisory Board [57]. Further, the fact that the affidavits are not mentioned in the Tribunal's reasons does not indicate that they were not considered by the Tribunal: Mifsud v Campbell (1991) 21 NSWLR 725, 728; Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [28]. Moreover, the applicant had not identified any arguable error in the Tribunal's finding that there was no requirement for the practitioner, as solicitor for the other party, to accept and act on the basis of the assertions made by the applicant in the underlying proceedings. There is no merit in these grounds.

47 Ground 14 alleges that the Tribunal denied the applicant procedural fairness by not requesting the applicant to provide three documents referred to by the applicant in his submissions, which he did not produce to the Tribunal. The documents were said to be relevant to the interlocutory application by the applicant to adduce oral evidence on his application for leave to review the Committee's decision. In my view, the applicant was not denied procedural fairness. In respect of the first document, the applicant had set out in his submissions the relevant quotation from the document, and the Tribunal said that it was prepared to act on the basis that the submission contained an accurate quotation of what was said: SAT reasons [38]. As to the other two documents, if the applicant wished the Tribunal to consider the documents, he should have provided them to the Tribunal.

48 Ground 15(b) alleges that the Tribunal failed to take into account an allegedly mandatory consideration, namely, that the practitioner committed 'another professional misconduct offence' by failing to act in the best interests of one of the companies in question. To the extent that this ground raises, again, the allegation that the Tribunal had failed to take into account a mandatory consideration to the effect that the practitioner had acted with a conflict of interest, it must be rejected for the reasons given previously. To the extent that the allegation raises another alleged professional misconduct complaint against the practitioner, it was irrelevant to the disposition of the application to the Tribunal and it is irrelevant to the disposition of this application.

49 The application for leave to appeal should be dismissed.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : NEIL -v- LEGAL PROFESSION COMPLAINTS COMMITTEE [No 2] [2012] WASCA 150 (S)

Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA

Citation : NEIL and LEGAL PROFESSION COMPLAINTS COMMITTEE [2011] WASAT 25

Costs - Successful party entitled to order for costs - Turns on own facts

Applicant to pay first and second respondents' costs

First Respondent : Legal Profession Complaints Committee

1 REASONS OF THE COURT: These supplementary reasons deal with an application by the first and second respondents for their costs of the applicant's application for leave to appeal.

2 In summary, the applicant's application for leave to appeal, and to appeal, was unanimously dismissed by this court. When judgment was delivered, the applicant did not appear and was accordingly not present in court when the respondents applied, in consequence of the dismissal of his application, for their costs of the proceedings. The court directed that the parties file and serve written submissions on costs, on the basis that the court would decide the question on the papers. The court caused its directions to be notified to the applicant. The parties have now provided written submissions.

3 The respondents contend that as they were successful in the proceedings, costs should follow the event in accordance with the usual rule. The applicant, in his written submissions, has in substance raised a number of matters going again to the merits of his original application, which was dismissed.

4 In the circumstances there is no reason why costs should not follow the event.

5 The court orders that the applicant pay the costs of the application for leave to appeal and the appeal of each of the first and second respondents, such costs to be taxed if not agreed.