Mendonca v Legal Services Commissioner (No 2)

THE COURT: On 7 May 2020, the Court determined Mr Mendonca’s application for leave to appeal from the decision of a judge of the Common Law Division. The Court dismissed the application for leave to appeal with costs: Mendonca v Legal Services Commissioner [2020] NSWCA 84.

By Notice of Motion dated 19 May 2020, Mr Mendonca seeks to have the costs order varied so as to require the respondent to pay Mr Mendonca’s costs (which would be confined to disbursements, since he represents himself). Alternatively, Mr Mendonca seeks an order that each party pay its own costs.

The motion should be dismissed, and the costs order made on 7 May 2020 should stand, for the following reasons.

The relevant background is that, after unsuccessfully suing his former employer, Mr Mendonca lodged formal complaints against the lawyers who acted for him in those proceedings, including a complaint against the solicitor. The Law Society of New South Wales closed that complaint without taking any disciplinary action. Mr Mendonca then requested the Commissioner of Legal Services to undertake an internal review of that decision. The Commissioner declined to do so. The decision of the primary judge was to dismiss Mr Mendonca’s application for judicial review of the Commissioner’s decision. [1]

While costs are in the discretion of the Court, [2] the general rule or “usual order” is that costs follow the event. [3] In Oshlack v Richmond River Council, [4] McHugh J (who was in dissent as to the outcome but whose discussion of the principles is often cited) explained at [67]:

The order of this Court dismissing the application “with costs” was an application of the usual rule.

The basis for the application to vary that order was the contention that the Law Society of New South Wales lacked power to determine the original complaint and that, accordingly, the Commissioner of Legal Services lacked power to determine the application for an internal review of that decision and the primary judge lacked power to make her decision.

The first contention was based on the decision of the Civil and Administrative Tribunal of New South Wales in Council of the Law Society of NSW v DXW. [5] In that decision, the Tribunal dismissed an application by the Council of the Law Society for disciplinary findings against a legal practitioner. The reason the application was dismissed was that there had been no valid delegation by the Commissioner to the Law Society of the Commissioner’s function to initiate the proceedings in the Tribunal.

It does not necessarily follow that the Commissioner of Legal Services lacked power to determine the application for an internal review of that decision or that the primary judge lacked power to make her decision. However, it is not necessary to consider those issues.

The decision in DXW was given on 25 June 2019. The Commissioner evidently took the view that the decision had ramifications for other complaints. That is the import of two letters he wrote to Mr Mendonca, copies of which Mr Mendonca attached to his submissions in reply on the present application. In those letters, the Commissioner drew Mr Mendonca’s attention to a “legal issue” concerning the Law Society’s authority to deal with complaints referred to it by the Commissioner based on the decision in DXW. The Commissioner invited Mr Mendonca to discontinue his application for leave to appeal on terms that the Commissioner would reimburse him for his disbursements and would deal with his original complaint anew.

Mr Mendonca did not avail himself of that opportunity.

In any event, by the time the application for leave to appeal was heard, the problem had been solved; legislation had been passed which had the effect of validating the delegation in question: Legal Profession Uniform Law Application Act 2014 (NSW) Sch 9 Pt 5 cl 23.

It follows that there is no basis for varying the order made when the application for leave to appeal was dismissed. If anything, the correspondence attached to Mr Mendonca’s submissions in reply shows a stronger basis for ordering Mr Mendonca to pay the Commissioner’s costs than the Court was aware existed at the time the order was made.

For those reasons, the motion dated 19 May 2020 should be dismissed with costs.