Saunders v Legal Profession Admission Board (No 2)

1. [1]

   On 4 December I gave judgment allowing Mr Saunders’ appeal from the decision of the Legal Profession Board, that while qualified, Mr Saunders was not a fit and proper person for admission in this State (see Saunders v Legal Profession Admission Board [2015] NSWSC 1839).

2. [2]

   Mr Saunders now seeks an order that the Law Society of New South Wales, which appeared on the appeal as amicus curiae, bear 30% of the actual costs which he incurred, after it commenced to act as amicus. That order is opposed. The Society’s position is that while there is no issue as to the Court’s power to make a costs order, Mr Saunders’ application for costs should be dismissed and that there be no order as to costs made.

The Law Society’s role in the proceedings

1. [3]

   When these proceedings were commenced, the Society had the right to appear and be heard on Mr Saunders’ appeal under s 30(1)(b) of the Legal Profession Act 2004 (NSW), as did the Board under s 30(4). The Board filed a submitting appearance on 26 June 2015 and did not appear at the hearing of the appeal.

2. [4]

   On 18 June 2015, a Registrar had made a consent order in terms that:

3. [5]

   That order does not, however, appear to be one contemplated by s 30, it providing:

4. [6]

   At the time of the hearing of the appeal, the Legal Profession Uniform Law Application Act 2014 (NSW) had come into force. Section 21 provided:

5. [7]

   Section 28 of the Legal Profession Uniform Law provided as to the conduct of the appeal:

6. [8]

   It follows that this legislative scheme contemplates that if the Society has a view about a decision of the Board, which it wishes to advance to the Court on an appeal such as this, that it may exercise its right to be heard. If it does not wish to exercise that right, but wishes to assist the Court in a case where the Board does not wish to exercise its right of appearance on the appeal, the Society is also, undoubtedly, free to seek to participate in the proceedings as amicus.

7. [9]

   In its written submission the Society submitted that the form of the consent order that the Registrar had been asked to make was deliberate, the Society’s view being that:

8. [10]

   The difficulty with that submission is that while s 30(1)(b) of the 2004 Act and s 21(1)(b) of the 2014 Act both gave the Society the right to be heard on an appeal such as this, neither section gave it the right to appear as amicus. Permitting such an appearance is a matter for the Court, as discussed in Levy v State of Victoria [1997] HCA 31; (1997) 189 CLR 579 at 601:

9. [11]

   Neither s 30(1)(b) of the 2004 Act nor s 21(1)(b)of the 2014 Act altered that discretion. If the Society wishes to do more than is involved in the role of an amicus, it must exercise its right of appearance.

10. [12]

    It followed that there was no question that the Society was free to seek the Court’s leave to appear as amicus, a matter about which Mr Saunders was entitled to be heard and to which he consented. Nevertheless, the grant of such leave involved no exercise of any right which the Society had under s 30 of the 2004 Act or s 21 of the 2014 Act to be represented and heard on the appeal. Such an application could be refused in an appropriate case, for example if the Board exercised or the Bar Council exercised their rights of appearance.

11. [13]

    Thus it was at the beginning of the hearing that I raised with the Society the nature of its appearance, given the terms of the order earlier made by consent, by a Registrar. There was the following exchange:

12. [14]

    This articulation of the Society’s position departed from what is ordinarily involved in the role of an amicus, which, as discussed by Johnson J in Markisic v Heilpern [2011] NSWSC 410 at [18] - [20] is to provide an effective contradictor. It is not a mechanism by which a body such as the Law Society may participate on an appeal such as this, in order to conduct an investigation, or to determine whether or not it should exercise its statutory right to be heard on the appeal.

13. [15]

    Mr Saunders not objecting to the Society’s appearance on this basis, however, I permitted it to pursue the amicus role which the parties had earlier agreed.

14. [16]

    As I discussed in the December judgment, however, during the course of the hearing, I became concerned as to whether the course which the Society was pursuing by its cross-examination of Mr Saunders, had gone beyond the role of an amicus. That concern arose from the pursuit of a line of cross-examination which suggested that Mr Saunders had given false evidence in these proceedings and in earlier proceedings in the Northern Territory Supreme Court.

15. [17]

    That was a line of questioning to which, for example, Rule 65 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) applies, which precludes matters of fact amounting to criminality, fraud or other serious misconduct being alleged, unless certain conditions are satisfied. Questions which were put also raised the requirements of s 41(3) of the Evidence Act 1995 (NSW).

16. [18]

    I took the view if, in truth, the Society wished to advance a positive case on the appeal, it ought to exercise its statutory right of appearance. It was entitled to do under s 21, as the Northern Territory Law Society had on Mr Saunders’ earlier unsuccessful appeal from the refusal of his admission in the Northern Territory. This the Society declined to do.

17. [19]

    Despite having cross-examined Mr Saunders as it did, the Society did not lead any evidence to support the serious allegations advanced in the cross-examination and confirmed that it did not wish to advance a positive case on the appeal. Its position was that it neither opposed, nor consented to his application for admission.

18. [20]

    Still, the Society submitted that it was open to the Court to reach a different view to that reached by Riley CJ as to the evidence given by Mr Saunders in the 2011 proceedings in the Northern Territory, when his appeal against the refusal to practice there failed (see In the matter of an application by Thomas John Saunders [2011] NTSC 63). Riley CJ had found Mr Saunders to have been a witness of truth about evidence which he had adhered to in the evidence which he gave on this appeal, his Honour having, the Society submitted, given him the benefit of the doubt on certain matters. When I raised the obvious difficulty with such a conclusion, given that it would require the view to be reached that Mr Saunders had perjured himself in both proceedings, in circumstances where the Society had led no evidence to support such a serious finding, no further submissions were advanced as to the basis on which such a serious conclusion could rest.

19. [21]

    It was in those circumstances that Mr Saunders submitted that the Society’s appearance as amicus did not give it an immunity against a costs order; that s 28(2) of the 2014 Act contemplated that costs orders could be made against the Society, in circumstances such as this, where an appeal had succeeded; that such an order could, in any event be made under the Court’s general powers as to costs; and that given the role which the Society in fact pursued on the appeal, justice demanded that a costs order be made against it.

Can a costs order be made against the Society?

1. [22]

   There is no rule of law that a costs order cannot be made against an amicus. In Metlife Insurance Ltd v Visy Board Pty Ltd & 25 ors (Costs) [2008] NSWSC 111, for example, the defendants’ solicitor appeared as amicus and Brereton J ordered the defendants to pay 35 per cent of the costs incurred by the plaintiff after a specified date, observing at [4]:

2. [23]

   In O'Toole v Charles David Pty Ltd (No 2) (1991) 171 CLR 232 costs orders were made against the Commonwealth which had intervened in order to have the case removed to the High Court, exercising rights granted by s 78A(2) of the Judiciary Act 1903 (Cth). The Minister was ordered to pay the costs of the High Court proceedings, as well as costs in the Federal Court which had been increased by the intervention. In Cumerlong Holdings Pty Limited v Dalcross Properties Pty Limited & Dalcross Holdings Pty Limited (No 2) [2009] NSWSC 1157 Smart AJ made costs order against the Minister for Planning, who had been granted leave to appear as amicus.

3. [24]

   If the Society’s submission that in appearing as amicus it was exercising rights initially granted by s 30 of the 2004 Act and later by s 21 of the 2014 Act was correct, it would also follow that the Court would have the power to make a costs order against it, given the provision made in s 28(2) of the Legal Profession Uniform Law (NSW), Mr Saunders’ appeal having succeeded. That provision only precludes a costs order being made against the Society, if an appeal fails.

4. [25]

   The Society argued, nevertheless, in its written submissions that a costs order in “sui generis proceedings such as these would only be granted in the most extraordinary of circumstances”. Mr Saunders accepted that the proceedings were sui generis, but not that a costs order could only be made in extraordinary circumstances. That was an approach, it was submitted, which would be contrary to the provisions of s 28(2) of the 2014 Act, which contained no such limitation.

5. [26]

   Mr Saunders’ submission must be accepted. Section 28(2) imposes no such limitation on the Court’s power to award costs. Nor is there such a limitation on the Court’s power to make a costs order in the case of an amicus.

6. [27]

   Further, the 2014 Act does not interfere with the Court’s discretion to make costs orders in an appeal such as this in accordance with s 98 of the Civil Procedure Act 2005 (NSW) and the Uniform Civil Procedure Rules 2005, under which the usual order is, of course, that costs follow the event (see Rule 42). That legislative scheme does not limit the Court’s power to make an order against an amicus providing as it does in s 98(1) Courts powers as to costs:

7. [28]

   The costs discretion must be exercised in the ordinary way in this case, in accordance with what justice demands.

Should the discretion to award costs be exercised?

1. [29]

   In its written submissions the Society revealed that prior to filing its submitting appearance, “the Board had resolved to accept that the Society would appear in these proceedings in the neutral capacity of amicus in order to assist the Court, including by the testing of the plaintiff’s evidence”. It submitted that it had seen its role in the proceedings to be:

2. [30]

   As I discussed above, the course actually pursued at the hearing, departed from this approach.

3. [31]

   The position of the Society at the outset was that it did not oppose Mr Saunders’ application, although it reserved the right to alter its position, in light of the evidence which he gave in cross-examination.

4. [32]

   Prior to the hearing the Society had called on Mr Saunders to provide it with information as to his representation in the proceedings in the Northern Territory Supreme Court and the level and source of his earlier earnings, while receiving Austudy benefits while he was a student. That information had been provided, it was said for Mr Saunders, at considerable cost, it then appearing that the Law Society intended, on the appeal, to agitate matters earlier dealt with in the Northern Territory proceedings in 2011.

5. [33]

   In his case Mr Saunders led evidence about what had preceded his application for admission in New South Wales in 2014, matters which he had disclosed to the Admission Board. He accepted the criticisms directed to him by Riley CJ, when his admission in 2011 was refused and sought to establish by the evidence that he led, that he was now a fit and proper person for admission.

6. [34]

   The case which the Society advanced focussed on the significance of Mr Saunders' 2009 conviction and the reasons for the refusal of his 2011 application for admission in the Northern Territory. It led no evidence and did not cross-examine anyone other than Mr Saunders. His cross-examination was confined largely to the question of his credit, as I discussed in the appeal judgment. He was not cross-examined as to the evidence which he gave as to matters such as his remorse for his 2009 offending, or what he had done to pursue his rehabilitation since the 2011 judgment. The other evidence which went to his present fitness was also not challenged.

7. [35]

   Finally, the Law Society confirmed that it did not wish to exercise its right to be heard on his admission and that it neither consented to nor opposed his application. It submitted that the decision which the Court was called on to make was a difficult one; that it was open to the Court to come to a different conclusion to that reached by Riley CJ as to the matters he had considered in those proceedings; but that this conclusion was not urged on the Court; that the character evidence assisted Mr Saunders and that the view that Mr Saunders had redeemed himself was open, given evidence which suggested that he had rehabilitated himself, to the degree necessary to permit his admission.

8. [36]

   The Society submitted that neither before nor at the hearing had any objection been taken to the Society’s appearance, or the course which it had pursued. Accordingly, Mr Saunders was not entitled to criticise its course, or to take advantage of what was perceived to be my criticism of the course it had pursued, in order to advance his application for costs. It was also submitted to be relevant that while the matter had been fixed for hearing for 2 days, on the basis of the estimate of Mr Saunders’ representatives, the Society had always considered it would take no more than a day. That the major part of the hearing over the day was taken up with Mr Saunders’ cross-examination, it was submitted to have been proper and anticipated by Mr Saunders.

9. [37]

   For Mr Saunders it was explained that the estimate was revised from 1 to 2 days, because of the Society’s approach to the matters it had pursued in its investigations.

10. [38]

    In Wentworth v NSW Bar Association (Supreme Court (NSW), Campbell J, 29 June 1993, unrep), Campbell J discussed why, in cases where applications for admission had been dealt with by the Court in the past, costs orders had not been made (see at pp 5 -10). More recently, however, costs orders have been made in such proceedings, when they came to be regulated by the 2004 Act.

11. [39]

    For example, in Jackson (previously known as Subramaniam) v Legal Practitioners Admission Board (No. 2) [2006] NSWSC 1403, the Board appeared to assist the Court in the resolution of the issues which arose on the appeal as to the applicant’s character, but not to act as a protagonist, even though it led evidence. The appeal failed and Johnson J made a costs order in its favour, being satisfied that the Board had established a proper foundation for a costs order, it being a party to the proceedings and having played the role it did.

12. [40]

    On this appeal it was whether Mr Saunders had the necessary good fame and character for admission to practice in this State, which arose for determination. The Society did not appear to act as a protagonist, to oppose the order sought. It acted, nevertheless, not only to pursue the role of a contradicter, but as it explained in its submissions at the hearing, in order to pursue its investigations, so that it could decide whether or not to exercise its right of appearance, to oppose his application. Having pursued that course, it did not elect to exercise its rights.

13. [41]

    The appeal succeeded and Mr Saunders now seeks to recover part of his costs, which were, no doubt, increased as the result of the course the Society pursued on the appeal. There was no issue as to the gravity of the adverse findings which Riley CJ had made against him. He accepted that he was bound by those findings.

14. [42]

    The question raised on the appeal was Mr Saunders’ fitness and particularly, whether necessary change had occurred since the adverse findings made against him in 2011.

15. [43]

    The major part of the hearing was taken up by the Society’s cross-examination of Mr Saunders. What the Society had appeared to do, it was argued for Mr Saunders, by that cross-examination was not only to assist the Court in determining those questions, but to seek to reinvestigate the matters which had been dealt with in the Northern Territory proceedings and his earlier conviction for social welfare fraud. They had been considered by Riley CJ, in concluding that his admission in the Northern Territory should be refused.

16. [44]

    It was submitted for Mr Saunders that it had not realistically been open to his representatives to object to the course which the Society had decided to pursue at the hearing of the appeal, it acting as amicus to define the issues raised by his appeal. Nor would it have been sensible to do so, given that any such objection could have been interpreted as Mr Saunders seeking to curtail the scope of the Society’s investigation, acting as contradicter. Such an approach could also have raised an allegation of lack of candour on his part.

17. [45]

    It is apparent from s 28(2) of the Legal Profession Uniform Law that this legislative scheme contemplates that a costs order may be made against the Society, in the event that it appears on an appeal which succeeds, in an appropriate case. In my view this is such a case, whether or not the Society was exercising rights of appearance under s 21 of the 2014 Act.

18. [46]

    Here, unlike the position of the Bar Association in Wentworth, while the Society had the right to appear in these proceedings, in the capacity of a party, it did not exercise that right. Nor did it appear as an intervener. Instead, by consent, it appeared as amicus, in which role it also pursued the investigation I have earlier discussed.

19. [47]

    Those circumstances, clearly, are unusual. The Society has in part utilised its amicus role in order to pursue an investigation into Mr Saunders’ fitness, through the cross-examination it pursued, on the basis earlier discussed, in order to determine whether to exercise its right to be heard on the appeal. That is not an exercise provided for under this legislative scheme. There was, it must be accepted, no objection to that course. The difficulty in pursuing such an objection for a person in Mr Saunders’ position is, however, patent.

20. [48]

    That investigation uncovered nothing which led the Society to exercise its right to oppose his application for admission, which unarguably had a meritorious basis. There can be no question that the pursuit of that course increased the costs to which Mr Saunders was put on this appeal. In the result, I am satisfied that justice demands that a costs order should be made in Mr Saunders’ favour, for a part of the costs which he incurred, but on a party/party basis.

21. [49]

    I can see no basis for departure from that aspect of the usual order, in all of the circumstances I have discussed. Such a departure usually requires misconduct in the proceedings to be established (see Oshlack v Richmond River Council [1998] HCA 11; (1998)193 CLR 72). That was not suggested by Mr Saunders. In the result there should be no departure from that aspect of the usual order.

22. [50]

    For the reasons given, I order that the Law Society of New South Wales bear 30% of the costs which Mr Saunders incurred, after it commenced to act as amicus curiae, as agreed or assessed.