Sharples v Council of the Queensland Law Society Incorporated [2000] QSC 392

"1. The decision of the First Respondent's Professional Standards Committee ("Committee") to close the Queensland Law Society Incorporated ("Law Society") investigations concerning solicitor Mr Mark Wakling (sic) on or about 15 June 2000 concerning the applicants complaints first made on 2 February 1999.

2. The decision by the Second Respondent as solicitor to the Law Society's to close the Law Society's investigation concerning solicitor Mr John Tracy (sic) on or about 22 June 2000 concerning the applicants complaints to the Law Society on the 18 and 19 December 2000."

I shall refer to them respectively as the first and second decisions. The relief which the applicant seeks includes an order quashing the decisions of the respondents and an order directing the respondents to properly investigate, hear and determine the applicant's complaints according to law.

[2] Directions were made for the conduct of the application on 15 August 2000. I was informed that the timetable reflected in the directions allowed for the fact that the time for providing a statement of reasons in response to the applicant's request did not expire until 9 September 2000. The first direction related to disclosure to be made on or before 22 September 2000. The proceeding was therefore still at an early stage at the hearing on 6 September 2000.

[3] On 28 August 2000 the applicant filed an application seeking an order pursuant to section 49(1)(d) of the Judicial Review Act 1991 ("the Act") that the respondents indemnify the applicant in relation to costs properly incurred in the review application on a party and party basis or, alternatively, an order that each party to the review application bear his or its own costs of the proceedings, regardless of the outcome of the proceedings. A similar order relying on section 49(1)(d) of the Act was also sought in the application for a statutory order of review. At the hearing of the costs application the applicant relied on his affidavits filed on 11 and 28 August 2000. Subsequently the applicant sought leave to file and rely on his affidavit sworn on 12 October 2000.

[4] Sections 49(1) and (2) of the Act provide:

"49 (1) If an application (the 'costs application') is made to the Court by a person (the 'relevant applicant') who-

(b) has been made a party to a review application under section 28; or

(c) is otherwise a party to a review application and is not the person whose decision, conduct, or failure to make a decision or perform a duty according to law, is the subject of the application;

(d) that another party to the review application indemnify the relevant applicant in relation to the costs properly incurred in the review application by the relevant applicant, on a party and party basis, from the time the costs application was made; or

(e) that a party to the review application is to bear only that party's own costs of the proceedings, regardless of the outcome of the proceedings.

(2) In considering the costs application, the Court is to have regard to-

(ii) any person associated with the relevant applicant who has an interest in the outcome of the proceeding; and

(b) whether the proceeding involves an issue that affects, or may affect, the public interest, in addition to any personal right or interest of the relevant applicant; and

(c) if the relevant applicant is a person mentioned in subsection (1)(a) - whether the proceeding discloses a reasonable basis for the review application; and

(d) if the relevant applicant is a person mentioned in subsection (1)(b) or (c) - whether the case in the review application of the relevant applicant can be supported on a reasonable basis."

[5] Some background to the application for the statutory order of review can be discerned from the applicant's affidavits.

[6] On 2 February 1999 the applicant made a complaint to the first respondent against solicitor Mr Mark Wakeling whom he had instructed on 3 June 1998 to institute legal proceedings against the Australian Society of CPA's. Mr John Tracey from the Professional Standards Department of the first respondent was the employee of the first respondent who conducted the investigation of the applicant's complaint against Mr Wakeling.

[7] The first respondent is incorporated under the Queensland Law Society Act 1952. Section 5E of that Act permits a complainant to make a written complaint to the council of the first respondent about the conduct of a solicitor or a solicitor's clerk or employee. Section 5F(1) of that Act requires the council of the first respondent to investigate a complaint made under section 5E. The council's powers for investigations are set out in section 5G of the Queensland Law Society Act 1952.

[8] Under section 6AF of the Queensland Law Society Act 1952 the Legal Ombudsman who is appointed under that Act is given the function of monitoring investigations by the council of the first respondent and to investigate complaints of alleged misconduct, improper conduct or neglect of duty by the council of the first respondent about the way in which the council has dealt with complaints or charges against solicitors and their clerks and employees.

[9] The written complaint lodged by the applicant against Mr Wakeling is not in evidence. In the written complaint lodged by the applicant against Mr Tracey dated 19 December 1999, the applicant stated that he initially alleged in his complaint against Mr Wakeling failure by Mr Wakeling to:

"(a) deposit moneys paid in advance of services into a trust account in accordance with the procedures of Trust Accounts Act 1973

(d) unprofessional conduct, failure to disclose whereabouts of certain documents left in his care."

[10] According to the complaint made against Mr Tracey, the moneys were not returned by Mr Wakeling to trust and an itemised account was not delivered to the applicant until August 1999. It appears that Mr Tracey provided brochures to the applicant on procedures to challenge the account. According to the applicant, a hearing was held before solicitor Mr Geoff Hyland on 26 October 1999 when it was discovered Mr Hyland did not have the power to hear the complaint against Mr Wakeling as the invoices had been issued by Mr Wakeling on 16 and 17 June 1998.

[11] The applicant in his written complaint against Mr Tracey made reference to a threat made against him by Mr Wakeling about which the applicant requested that Mr Tracey obtain details and that Mr Tracey failed to do so. The written complaint against Mr Tracey also referred to the applicant's seeking discovery and explanation as to various documents and that his requests were not adequately dealt with.

[12] According to the letter from the first respondent to the applicant dated 20 June 2000, the complaint by the applicant against Mr Wakeling was referred to the Professional Standards Committee of the first respondent at its meeting of 15 June 2000, and that Committee decided to take no further action in respect of the complaint. The applicant was advised that the first respondent was closing its file in respect of the complaint against Mr Wakeling and forwarding the complete file to the Legal Ombudsman.

[13] The reference was made to the Legal Ombudsman, as the applicant had written to the Legal Ombudsman in relation to his complaint against Mr Wakeling. On 8 June 2000 the Legal Ombudsman had advised the first respondent that it was investigating the manner in which the first respondent had handled the applicant's complaint against Mr Wakeling.

[14] During submissions on the hearing of the application for the order for costs reference was made on behalf of the respondents to the sum of money which was the subject of the complaint against Mr Wakeling being $1,000. In the amended submissions of the applicant dated 12 October 2000 the applicant described his personal interest in the application as being "limited to an amount of some six hundred dollars and the efforts and cost to bring the application".

[15] The second respondent wrote a detailed letter dated 22 June 2000 to the applicant in respect of the applicant's complaint against Mr Tracey. It deals separately with each of the specific heads of complaint raised by the applicant, and the second respondent sets out his determination that either the allegations made by the applicant are not allegations of unsatisfactory unprofessional conduct or that there is insufficient evidence of unsatisfactory professional conduct on the part of Mr Tracey to warrant any further action on the part of the first respondent. The applicant was advised that the first respondent's file on the matter had been closed. This is the second decision.

[16] The grounds for review of the first and second decisions are set out in the principal application as follows:

"1. The applicant (prior to notification by letter received 26 June 2000 from Mr Masinello the investigating officer of the Committee's decision) was informed that parties were waiting on further material to be forwarded to the Law Society by solicitor Mark Wakeling. The applicant was surprised by the decision and denied procedural fairness.

2. The investigating officer of the First Respondent Mr John Tracy (sic) and the Second Respondent acted with bias towards the Applicant.

3. The delays to the First Respondent's investigation of the Applicant's complaint and forwarding of material to the Applicant were unreasonable.

4. The First and Second Respondents had a duty to properly investigate and decide under the Act the complaints made properly and in goog (sic) faith to them by the Applicant and failed to do so.

5. The making of the said decisions by the First and Second Respondents was an improper exercise of power conferred by reason of the failure, in a timely way:

(b) to act reasonably and supply to the applicant accurate and reliable information from the solicitors concerning the matters of his complaint,

(c) acting in bad faith, negligently and maliciously towards the applicant,

(e) to obtain factual evidence to allow proper determination of factual events,

6. Particulars of which will be supplied by the Applicant upon receipt of a statement of reasons and discovery as particularised in interlocutory relief sought in these proceedings.

7. Such further grounds as may arise from information provided to the applicant form discovery as described in paragraph 6 above."

[17] As the applicant was aware that the Legal Ombudsman had custody of the first respondent's file relating to its investigation of the applicant's complaint against Mr Wakeling, on 13 July 2000 the applicant requested access under the Freedom of Information Act 1992 to the respondent's file from the Legal Ombudsman. By letter dated 13 July 2000 the Legal Ombudsman advised the applicant that, as he was not the custodian of the first respondent's file, he was unable to grant the applicant approval to access the file, but advised that he had written to the first respondent to inform it that the applicant had sought access under the Freedom of Information Act 1992.

[18] The enactment of section 49 of the Act is in conformity with the recommendations made by the Electoral & Administrative Review Commission in its "Report on Judicial Review of Administrative Decision and Actions" dated December 1990. The Commission stated at paragraph 10.23 of the Report:

"The Commission favours the proposal ... conferring upon the Supreme Court a power to consider and make orders about costs at an early stage of proceedings, so that meritorious cases can be pursued without the uncertainty as to the costs outcome which presently besets even a worthy applicant for judicial review. The Commission considers that this proposal has the potential ... to effectively discourage unnecessary litigation (by making the normal cost rules apply apart from a successful application to the Court for exercise of the special power in respect of costs), while providing an incentive for legitimate claims to proceed."

[19] Although at paragraphs 10.41 and 10.42 of its Report the Commission anticipated that section 49 would be frequently used and might act as a filter of judicial review proceedings, encouraging settlement where there was a favourable exercise of discretion in favour of an applicant on the costs application or discouraging an applicant where the basis for the rejection of the costs application was that no reasonable basis for the review application was disclosed, that is not borne out by the relatively few number of cases which have involved an application under section 49(1) of the Act.

[20] The role of section 49(1) of the Act was considered by the Court of Appeal in Anghel v Minister for Transport (No 2) [1995] 2QdR 454. In that case the applicants for judicial review sought to have reversed the Minister's decision to approve the construction of a standard gauge rail link to the Port of Brisbane. They were residents living along the route and were apprehensive about the detriment of the consequent increase in rail traffic on their environment. The application was summarily dismissed. The question of an appropriate order for costs was the subject of the appeal by the Minister who had been ordered to pay the residents' costs of the application. The appeal was allowed and there was ordered to be no order as to the costs of the review application.

[21] Fitzgerald P in considering the factors relevant to the exercise of the discretion prescribed by section 49(2) of the Act stated at 456:

"Many proceedings for judicial review will involve issues 'that ... may affect the public interest'. Thus, in this case, the location of a rail link to the Port of Brisbane may be considered a matter of public interest. However, the respondents' review application was not related to public interest considerations but, quite legitimately, to the effect of what was proposed upon their personal interests. While this does not disentitle them to an order under s.49(1), it provides little support for a costs order under s.49(1)(d) rather than 49(1)(e)."

"Section 49(2)(b) appears to be directed to proceedings in which it is the public interest rather than any private right of the applicant that is sought to be vindicated by the application. Here, the residents are understandably aggrieved at bearing what they see as a disproportionate share of the burden imposed by a public project; but it remains true to say that it was their rights of property and personal convenience and not the public interest they were intent on protecting when they made the review application."

[23] In Cairns Port Authority v Albietz [1995] 2QdR 470 Thomas J (as he then was) in commenting on the making of a special costs application under section 49 of the Act stated at 475:

"An obvious example calling for the exercise of this particular power is the case of an impecunious applicant who applies for an indemnity at an early stage of proceedings in which a public authority may obtain the benefit of a test ruling or clarification of some point of practice or of public importance."

[24] In Anghel v Minister for Transport (No 2) Fitzgerald P expressly left open the question of whether the matters to which regard is to be had under section 49(2) of the Act in relation to an application for an order under sections 49(1)(d) or (e) were exhaustive or whether other matters could also be considered.

[25] In Lyness v Fennell (unreported, 27 March 1998, Mackenzie J) expressed a preference for the view that section 49(2) of the Act did not preclude consideration of other matters which may be relevant to the exercise of the discretion. He stated:

"The provisions of s.49(2) are in my view not exclusive. They impose a special regime where factors relevant to applications of the kind contemplated by the Judicial Review Act, but not so relevant to ordinary litigation, must be had regard to. If the legislature had intended that there was to be a general rule that a party was to bear only his her or its own costs of the proceeding in cases with a public interest component regardless of the outcome, there would be good reason to think that the legislature would have said so directly. It is a provision which favours applicants and no doubt its purpose is to ensure that people of limited means who raise matters of public interest where there is a reasonable basis for making the application are not deterred by the risk that, if ultimately unsuccessful, a costs order would be made against them."

[26] The applicant submits that I should take into account factors other than those listed in section 49(2) of the Act. I agree with the statement made by Mackenzie J and will proceed on the basis that section 49(2) of the Act does not contain an exhaustive list of relevant factors.

[27] There is no procedural impediment to the costs application being heard at this stage of the principal proceeding. There is an obvious advantage to an impecunious applicant in being able to obtain a prospective costs order at an early stage of a review application. As was submitted by the respondents, it is reasonable to infer that the applicant seeks to improve his prospects of obtaining legal assistance on a speculative basis by an order made under section 49(1)(d) of the Act at this stage. Nothing negative against the applicant flows from this inference.

[28] There is no issue about the impecuniosity of the applicant. The additional factors relied on by the applicant of his inability to obtain legal aid, the disparity of financial and legal resources between him and the respondents and that (in the absence of a favourable order on this costs application) the applicant's case will be prepared and presented by himself without the benefit of legal training are consequences of his impecuniosity. I take these additional factors into account when considering whether the costs application should be successful.

[29] On the issue of whether the proceeding involves an issue that may affect public interest, the applicant submits that "... the proper statutory investigation by the Queensland Law Society of allegations against one of its members as to overcharging, breach of trust funds and unprofessional conduct, is a matter of the highest public importance".

[30] There is always a public interest in seeing that statutory obligations of a statutory body are fulfilled and that the personal rights of any party affected by the performance of that statutory obligation are observed. By the very nature of what is a decision to which the Act applies, every review application will involve an element of public interest. It is apparent from the observations made in the judgments in the Court of Appeal to which I have referred relating to section 49 of the Act that there will usually be some broader public interest involved in the particular application to justify a special costs order than the usual public interest which must be present in every application from the mere fact that the Act applies to the decision under review.

[31] This application is not a test case in the sense in which that was described by Thomas J in Cairns Port Authority v Albietz. That is because there is no indication that there are any other investigations which have been undertaken or are being undertaken by the first respondent which have generated complaints similar to those made by the applicant in respect of the first and second decisions and where the first respondent would benefit from the Court's review of the first and second decisions.

[32] Apart from the possibility of judicial review in respect of the first and second decisions, the manner in which the first respondent undertakes its investigations is subject of investigation by the Legal Ombudsman pursuant to section 6AF(1) of the Queensland Law Society Act 1952. The public importance of the proper investigation by the respondent of complaints against solicitors has been addressed by the Legislature in the role given to the Legal Ombudsman. The applicant has invoked such an investigation in relation to the first respondent's investigation of his complaint against Mr Wakeling. It is relevant to note that as the applicant's complaint against Mr Tracey arose out of Mr Tracey's carriage of the first respondent's investigation into the applicant's complaint against Mr Wakeling, Mr Tracey's handling of that investigation is likely to be considered in the course of the Legal Ombudsman's investigation of how the first respondent handled the applicant's complaint against Mr Wakeling.

[33] Although the applicant asserts a wider public interest than his own personal interest in the application, there is no evidence to show that there is any wider implication for the public than the applicant's own complaints which underlie the principal application.

[34] On the issue of whether the proceeding discloses a reasonable basis for the review application, the applicant submits that reasonableness should be considered in all the circumstances and having regard to the conduct of the first respondent in attempting "to starve the applicant of information during the statutory period for objection". The applicant blames the lack of particularity in his application on the first respondent's actions. He relies on his affidavit sworn on 12 October 2000. The question of whether the applicant should be given leave to file his affidavit of 12 October 2000 and rely on it in connection with the costs application must be determined after an opportunity is given to the respondents to make submissions on whether leave should be given.

[35] Dealing firstly with the question of whether the proceeding discloses a reasonable basis for the review application, there is not sufficient particularity in either the application itself or the supporting affidavits to conclude at this stage that there is a reasonable basis for the review application.

[36] The first decision is, in effect, a decision by the first respondent not to investigate further the complaint by the applicant against Mr Wakeling. The first ground for review cannot be evaluated without some detail of the further material forwarded to the first respondent by Mr Wakeling, if the applicant is otherwise able to show that he was informed that the first respondent was waiting on such material and that such material was forwarded to the first respondent by Mr Wakeling, before the first decision was made.

[37] With respect to the second ground for review, there are no particulars of the bias alleged to have been displayed by Mr Tracey towards the applicant. The complaint of bias against Mr Tracey made in the applicant's written complaint dated 19 December 1999 is also not particularised.

[38] Ground 3 which raises delays in the investigation of the applicant's complaint is not a basis for judicial review.

[39] Ground 4 raises bad faith, but there is no evidence at this stage to support that ground. To the extent that ground 4 asserts that the respondents failed to properly investigate the applicant's complaints, there is a lack of particulars.

[40] Ground 5 makes assertions about an improper exercise of power and at this stage there are no sufficient particulars in support of those assertions.

[41] It is therefore not possible at this stage to conclude that the proceeding discloses a reasonable basis for the review application in respect of the first decision.

[42] It was argued on behalf of the respondents on the hearing of the costs application that the second decision was not reviewable under the Act. No application to strike out the principal application in respect of the second decision has been brought on behalf of the respondents. That submission was raised only in the context of consideration as to whether there was a reasonable basis for the application in relation to the second decision. It is arguable that the second decision was also a decision by the second respondent on behalf of the first respondent not to investigate further the complaint made by the applicant against Mr Tracey. Grounds for review 2, 4 and 5 relate to the second decision. There are no sufficient particulars at this stage to support the allegations made in those grounds in relation to the second decision. It is therefore not possible to conclude that the proceeding discloses a reasonable basis for the review application in respect of the second decision.

[43] I accept that the conduct of the first respondent in withholding information from the applicant (if that were established) would be a relevant factor in considering the costs application. Even if I were to give leave to the applicant to file his affidavit of 12 October 2000 and it was not controverted by affidavits in response filed by the respondents, I do not consider that such conduct of the first respondent weighed in the balance with the factors which follow from the applicant's impecuniosity and the conclusions which I have reached about the lack of public interest and the lack of a reasonable basis for the review application in the light of the lack of particulars and evidence at this stage of the proceeding affects the outcome of the costs application. This is because the lack of public interest and the lack of a reasonable basis for the review application strongly militate against the granting of a special costs order.

[44] I therefore refuse to make the orders sought under either section 49(1)(d) or (e) of the Act and the application filed on 28 August 2000 must be dismissed.

[45] I will hear submissions from the parties on costs.