LEGAL PROFESSION CONDUCT COMMISSIONER v ENZO GEORGE BELPERIO [2025] SASCA 28

On Appeal from LEGAL PRACTITIONERS DISCIPLINARY TRIBUNAL (MS M PYKE KC, MS F CAMATTA AND MS A BURGESS AM) LPDT-22-04 Appellant: LEGAL PROFESSION CONDUCT COMMISSIONER Counsel: MS E F NELSON KC WITH MS P EWENS - Solicitor: LEGAL PROFESSION CONDUCT COMMISSIONER Respondent: ENZO GEORGE BELPERIO Counsel: MR R J WHITINGTON KC WITH MS H DOYLE - Solicitor: ILES SELLEY LAWYERS Interested Party: THE LAW SOCIETY OF SOUTH AUSTRALIA Counsel: MR J MARSH - Solicitor: THE LAW SOCIETY OF SOUTH AUSTRALIA Intervener: ATTORNEY-GENERAL OF SOUTH AUSTRALIA Counsel: MR M WAIT SC WITH MS I NIKOLOUDAKIS - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 29/11/2024, 10/12/2024 File No/s: CIV-24-003582 B SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. LEGAL PROFESSION CONDUCT COMMISSIONER v BELPERIO (No 3) [2025] SASCA 28 Judgment of the Court of Appeal (The Honourable Chief Justice Kourakis, the Honourable Justice Bleby and the Honourable Justice Stein) 20 March 2025 APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - COSTS PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - PARTIES AND NON-PARTIES - COSTS IN PROCEEDINGS WHERE MULTIPLE PARTIES - GENERALLY PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - DISCIPLINARY PROCEEDINGS - SOUTH AUSTRALIA PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – GENERALLY – OTHER MATTERS STATUTES - ACTS OF PARLIAMENT - STATUTORY POWERS AND DUTIES - CONSTRUCTION On 22 August 2024, this Court delivered the first judgment in this matter, Legal Profession Conduct Commissioner v A Practitioner [2024] SASCA 102, which allowed an appeal against a decision of the Legal Practitioners Disciplinary Tribunal (‘the Tribunal’). The first judgment anonymised the respondent’s name as ‘A Practitioner’. -- 1 of 6 -- On 22 November 2024, this Court delivered the second judgment in this matter, Legal Profession Conduct Commissioner v Belperio (No 2) [2024] SASCA 133, which dismissed a variety of applications brought by the respondent related to, in summary, anonymisation of the respondent’s name, restricted access to documents on the Court file, and suppression orders relating to the proceedings both before the Tribunal and in this Court. The second judgment did not anonymise the respondent’s name. The Court is yet to determine the questions of costs and various others matters arising out of those previous judgments. Held (by the Court): 1. There is no reason for the Court to maintain the anonymisation of the respondent’s name in the first judgment and accordingly, the Court will republish the first judgment naming the respondent. 2. The application for judicial review brought concurrently with the appeal lacks utility in light of the outcome in these proceedings and should be dismissed. The appellant should pay the respondent’s reasonable costs in relation to the judicial review application in circumstances where the judicial review proceedings were, from the outset, inutile. 3. The respondent did not contest the making of an order that he pay the appellant’s costs relating to the restricted access application and accordingly, the respondent should pay those costs. 4. The arguments raised in relation to the s 131 application were incidental to, and only arose out of, an ultimately unsuccessful application and thus the respondent should pay the appellant’s reasonable costs of the s 131 application. 5. The purpose of the express conferral of the power by s 69B to award costs on an appeal against a decision made pursuant to s 69A is to address appeals brought from decisions on suppression applications made in first instance criminal proceedings brought on an indictment. Consequently, such considerations need not be considered in circumstances where these proceedings were brought in the civil jurisdiction of the Court. 6. The respondent’s application for a suppression order was without merit and did not fall within the concept of the interests of justice. Furthermore, the lateness of the applications contributed towards shortcomings in material put before the Court. Accordingly, the respondent should pay the appellant’s costs relating to the suppression application. 7. The Advertiser elected to intervene in support of the open justice principle and the proper interpretation of s 69A of the Evidence Act but also for motivations relating to their business interests. The public interest was adequately put by the appellant in their opposition to the respondent’s applications and by the intervening party in their submissions relating to the proper application of s 69A of the Evidence Act. Consequently, no costs order for costs should be made in favour of the Advertiser. Evidence Act 1929 (SA) ss 69A, 69B; Legal Practitioners Act 1981 (SA) s 86(1); Supreme Court Act 1935 (SA) ss 40, 131; Uniform Civil Rules 2020 (SA) r 32.2, referred to. Channel Nine SA Pty Ltd & Anor v Police & Anor (No 2) (2014) 121 SASR 87, applied. Advertiser Newspapers Pty Ltd v Penhall (No 2) [2021] SASCA 124, considered. -- 2 of 6 -- LEGAL PROFESSION CONDUCT COMMISSIONER v BELPERIO (No 3) [2025] SASCA 28 Court of Appeal – Civil: Kourakis CJ, Bleby JA and Stein AJA 1 THE COURT: On 22 August 2024, this Court delivered the first of two judgments in this matter. The first judgment allowed an appeal against a decision of the Legal Practitioners Disciplinary Tribunal (‘the Tribunal’), which dismissed a charge of professional misconduct that had been brought against Mr Belperio. The matter was remitted to the Tribunal for enquiry into the charge laid by the Commissioner. The first judgment was delivered with Mr Belperio’s name anonymised as ‘A Practitioner’. 2 On 22 November 2024, this Court delivered the second judgment which dismissed applications: a) that certain documents filed in the proceeding be filed on a restricted access basis pursuant to r 32.2 of the Uniform Civil Rules 2020 (SA) (‘UCR’) (‘Restricted Access Application’); b) brought in the inherent jurisdiction of the Court for a range of orders restricting access to records which would otherwise be available pursuant to s 131 of the Supreme Court Act 1935 (SA) (‘SC Act’) (‘s 131 Application’); c) brought pursuant to s 69A of the Evidence Act 1929 (SA) (‘Evidence Act’) to suppress any publication of the proceedings before the Tribunal and in this Court (‘Suppression Application’). 3 This judgment deals with questions of costs and a miscellany of others matters. This judgment should be read together with the first and second judgments. Anonymity 4 The Commissioner and the Advertiser seek republication of the first judgment in a form consistent with the second judgment, that is, by naming Mr Belperio. Mr Belperio does not make any submissions against the republication. 5 There is no reason to maintain the anonymisation of Mr Belperio’s name in the first judgment after publication of the second judgment. The Court will republish the first judgment naming Mr Belperio as the respondent. The Judicial Review application 6 The appeal against the decision of the Tribunal was brought pursuant to s 86(1) of the Legal Practitioners Act 1981 (SA). An appeal brought under that -- 3 of 6 -- [2025] SASCA 28 The Court 2 provision is by way of a rehearing. The Commissioner also brought an application for judicial review of the Tribunal’s decision. Speaking generally, there is no utility in bringing an application for judicial review when there is available a statutory appeal on the merits. That was the case in these proceedings. 7 Mr Belperio brought an application to summarily dismiss the application for judicial review, but without determining that application, it was stayed pending the determination of the appeal. 8 Mr Belperio and the Commissioner agree that the application for judicial review should now be dismissed. The Court so orders. The Commissioner is ordered to pay Mr Belperio’s reasonable costs of what was, from the outset, an inutile proceeding. Costs Restricted Access Application 9 Mr Belperio consents to an order that he pay the Commissioner’s costs on the Restricted Access Application. The Court so orders. Section 131 Application 10 The arguments concerning s 131 of the SC Act were incidental to, and only arose because of, Mr Belperio’s attempt to prevent publication or dissemination of any information identifying him as the ‘Practitioner’ party in the proceedings. On this application he was unsuccessful. Mr Belperio is to pay the reasonable costs of the Commissioner on the s 131 Application. Suppression Application 11 The Commissioner and The Advertiser seek their costs on the Suppression Application. Mr Belperio opposes this and submits there should be no order as to costs. 12 No party submitted that this Court does not have power to award costs on the Suppression Application. 13 Section 69A does not make express provision for awards of costs. Nonetheless, this Court is invested with a general power to award costs by s 40 of the SC Act which provides: 40—Power of court with regard to costs (1) Subject to the express provisions of this Act, and to the rules of court, and to the express provisions of any other Act whenever passed, the costs of and incidental to all proceedings in the court, including the administration of estates and trusts, shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and to what extent such costs are to be paid. (2) If— -- 4 of 6 -- [2025] SASCA 28 The Court 3 (a) an action for the recovery of damages or any other monetary sum is brought in the court; and (b) the action might have been brought in the District Court; and (c) the plaintiff recovers less than an amount fixed by the rules for the purposes of this paragraph, no order for costs will be made in favour of the plaintiff unless the court is of the opinion that it is just, in the circumstances of the case, that the plaintiff should recover the whole or part of the costs of action. 14 Section 69B of the Evidence Act expressly confers a power to award costs on an appeal against a decision made pursuant to s 69A of the Evidence Act. The express conferral of that costs power raises a question over the power to award costs of a suppression application made at first instance. The most obvious purpose of the express conferral of the power by s 69B is to address appeals brought from decisions on suppression applications made in first instance criminal proceedings brought on an indictment. Applications for suppression orders are commonly made in criminal proceedings of that kind. Costs are not awarded as between the Director of Public Prosecutions and an accused in such proceedings. The express power makes it clear that that rule does not apply on appeal and that costs orders may be made as between the parties to the appeal. 15 The question whether a court hearing a charge of an indictable offence is empowered to make cost orders in respect of a suppression application1 need not be revisited here because Mr Belperio’s application was brought in the civil jurisdiction of this Court. 16 Considerations which uniquely affect the exercise of the cost’s discretion in suppression applications, particularly the public interest context in which they are made, were carefully considered in Channel Nine SA Pty Ltd & Anor v Police & Anor (No 2).2 We adopt the approach set out by the Court in that case. 17 Mr Belperio’s application was without merit. The grounds on which it was prosecuted did not fall within the concept of the interests of justice, but were, instead, primarily matters of personal self-interest. Moreover, the application was made late. The haste with which it was made, and the supporting evidence obtained, contributed to the shortfalls in Mr Broomhall’s report and the need to cross-examine him. It became apparent in the course of Mr Broomhall’s cross-examination that his opinions as to the risk to the practitioner’s health were substantially qualified and that a number of his observations lacked a sound evidential foundation on the material he had. 1 Cf Advertiser Newspapers Pty Ltd v Penhall (No 2) [2021] SASCA 124 [7], [23]. 2 Channel Nine SA Pty Ltd & Anor v Police & Anor (No 2) (2014) 121 SASR 87 [40]-[50]. See also Advertiser Newspapers Pty Ltd v Penhall (No 2) [2021] SASCA 124 [23]-[24]. -- 5 of 6 -- [2025] SASCA 28 The Court 4 18 We order that Mr Belperio pay the costs of the Commissioner on the Suppression Application. 19 We decline to make an order for costs in favour of The Advertiser. The Commissioner, as a party and by reason of his statutory office, properly opposed the application. The public interest was adequately put by his counsel. Moreover, the Solicitor-General intervened and made submissions in the public interest on the proper application of s 69A of the Evidence Act. We acknowledge that The Advertiser intervened in support of the open justice principle and that s 69A of the Evidence Act recognises the important role of the news media in effectuating that principle. However, The Advertiser also intervened for the purposes of advancing its business interest as South Australia’s predominant news media publisher, and the only publisher of a hardcopy daily newspaper. The Advertiser had earlier published an article which was critical of Mr Belperio and the suppression of his name. This is not a case in which Mr Belperio should pay two sets of costs. Nor should the Commissioner be required to share a single costs order made against Mr Belperio with The Advertiser, which elected to intervene. -- 6 of 6 --