Bax v Legal Practitioners Admissions Board [2021] QCA 152 [2021] 30 QLR

SUPREME COURT OF QUEENSLAND CITATION: Bax v Legal Practitioners Admissions Board [2021] QCA 152 PARTIES: CRAIG STEPHEN BAX (applicant/respondent) v LEGAL PRACTITIONERS ADMISSIONS BOARD (respondent/applicant) FILE NO: Appeal No 6832 of 2020 DIVISION: Court of Appeal PROCEEDING: Application for Admission – Further Order DELIVERED ON: 23 July 2021 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers JUDGES: Holmes CJ and Mullins JA and Crow J ORDER: The applicant is to pay the Board’s costs of the second day of the hearing on 2 December 2020. CATCHWORDS: PROFESSIONS AND TRADES – LAWYERS – QUALIFICATIONS AND ADMISSIONS – OTHER MATTERS – where the applicant’s application for readmission to the legal profession was dismissed – where the respondent now seeks its costs in the proceedings for the second of two hearing days after the first day was adjourned – where the applicant contends that no order as to costs should be made, given the amicus curiae nature of the respondent’s role in applications of this type – whether the respondent should be permitted to seek costs – whether costs should be awarded to the respondent KMB v Legal Practitioners Admissions Board (Queensland) (No 2) [2018] 1 Qd R 500; [2017] QCA 146, considered COUNSEL: P Dunning QC, with G Radcliff, for the applicant A Crowe QC for the respondent SOLICITORS: Legacy Legal for the applicant Bennett and Philp Lawyers for the respondent [1] HOLMES CJ: On 7 May 2021, this court dismissed the applicant’s application for readmission to the legal profession, having found that he was not a fit and proper person for admission. What remains to be decided is the issue of costs. The respondent Legal Practitioners Admissions Board, while indicating that its usual policy is not to seek costs on matters concerning admission to practice, has sought its costs in this case for the second of two hearing days. The applicant opposes the -- 1 of 3 -- 2 making of any costs order, relying on the decision of the Court of Appeal in KMB v Legal Practitioners Admissions Board (Queensland) (No 2).1 The background to the Board’s submission as to costs [2] The background to the Board’s costs application is as follows. One of the suitability matters disclosed by the applicant and requiring consideration by the court concerned a complaint to the Legal Services Commissioner that he had undertaken legal work on behalf of a company at a time when ASIC records showed that his directorship of that company had ceased; so that it was suggested that he had engaged in unlawful operation as a practitioner, contrary to s 24 of the Legal Profession Act 2007. [3] As noted in the judgment,2 when the matter came on for hearing on 21 October 2020, the court pointed out the absence, firstly, of material to explain how the ASIC records had been changed to show that the applicant ceased to be a director of the company and, secondly, of company records to show that he had in fact acted on the understanding that his directorship continued. That was despite the Legal Services Commission complaint having been discussed at some length in an earlier judgment of this court3 in relation to an appeal by the applicant against the Board’s refusal of a declaration under s 32 of the Legal Profession Act that his earlier striking-off would not, without more, adversely affect its assessment of his suitability for admission. [4] The applicant sought and was granted an adjournment to file further material. However, when the hearing resumed in December 2020, the applicant had filed some affidavits which shed no real light as to the first issue raised (as to the apparent cessation of his directorship), and had not filed any company documents in respect of the second issue raised (as to his belief that he continued to hold the office). It was only after he was challenged on the latter issue in cross-examination and had finished his evidence that he was recalled so that further evidence in relation to that matter could be adduced. The applicant’s response [5] The applicant, as already mentioned, relies on the decision of the Court of Appeal in KMB v Legal Practitioners Admissions Board (Queensland) to argue that no order for costs should be made. That case concerned an appellant’s application for costs against the Board, having succeeded on an appeal against the Board’s refusal of a declaration under s 32(3) of the Legal Profession Act. Sofronoff P, with whose reasons the other members of the court agreed, concluded that s 707 of the Legal Profession Act rendered the Board immune against an order for costs, in the absence of dishonesty or negligence on its part. In addition, Sofronoff P said, although the proceeding was an appeal, it was not a lis inter partes, involving a dispute between two parties and a determination of rights, but, instead the court’s inquiry into the issue of suitability, in which the Board’s role was to assist the court. His Honour observed, in consequence, “There is, therefore, no ‘event’ upon the occurrence of which the Court should make its ‘usual order’. The Board neither wins nor loses an appeal such as this. Nor does the appellant.”4 1 [2018] 1 Qd R 500. 2 Bax v Legal Practitioners Admissions Board [2021] QCA 93 at [23]. 3 Bax v Legal Practitioners Admissions Board (2020) 4 QR 156. 4 At [60]. -- 2 of 3 -- 3 [6] The applicant argued that the purpose of his application, its adjournment, and the subsequent hearing was so that the court could be informed in its inquiry in relation to the suitability issue. Given the amicus curiae nature of the Board’s participation, and its immunity from having costs awarded against it, it would be unfair to permit it to seek costs. In addition, the Board ought not be permitted to depart from its policy against seeking costs, because of its prospective effect in discouraging applicants for readmission from proceeding in future cases. Conclusion [7] It may be accepted that the usual rule as to costs following the event is not readily applicable to admission cases, and that the discretion to award costs against an applicant will be exercised sparingly, with the unique role of the Board in mind. (The Board’s stated policy of not usually seeking costs recognises as much.) Nonetheless, there will be circumstances in which it is appropriate, in the exercise of the court’s unfettered decision, to make an order for costs in the Board’s favour.5 The present set of circumstances, where the Board was put to unnecessary expense in fulfilling its statutory role by the applicant’s failure to provide relevant material in a timely way, is such a case. [8] I would order that the applicant pay the Board’s costs of the second day of the hearing, 2 December 2020. [9] MULLINS JA: I agree with the Chief Justice. [10] CROW J: I agree with the Chief Justice. 5 See, for example, Re Ayobi [2018] QCA 1. -- 3 of 3 --