The last post referred to part 1 of the last chapter of an intriguing saga. The second and final part of that chapter is the decision on costs: PJQ v Law Institute of Victoria (No. 2) [2007] VSCA 132. The President of the Court of Appeal rejected the following submissions by the Institute:
- that the Institute was just a contradictor, assisting the Court by ensuring that it had two views to choose from, and was akin to an amicus curiae;
- that it would have been entirely inappropriate for a professional regulator such as the Institute to consent to the relief sought by the appeal;
- that the cases which say that ‘costs ought not to be awarded against a statutory tribunal which makes an order in excess of its powers unless it can be demonstrated that the tribunal has been guilty of serious misconduct or corruption or has acted perversely’ are relevant (‘this submission is entirely misconceived. The Institute is not a tribunal. Rather, it appears before the Tribunal as a party. Its function is that of prosecutor. No question arises here of the Tribunal’s costs, since the Tribunal did not appear.’);
- it was relevant that parliament had directed that costs of the Full Tribunal hearing were not to be awarded against the Institute save in exceptional circumstances (s. 162, Legal Practice Act, 1996; see now Victorian Civil and Administrative Tribunal Act 1998, Sch 1 cl 46D(3));
- because it made no submissions as to penalty, the Institute did not lead the Tribunal into error.
There are a couple of other points made by the decision of interest exclusively to hard core professional discipline lawyers:
- ‘The evident policy of [the no costs against the prosecutor at first instance save in exceptional circumstances provision] is that the Institute should not be deterred by the risk of an adverse costs order from prosecuting charges of misconduct before the Tribunal. That is a very important function, carried out in the public interest: See New South Wales Bar Association v Thomas [No 2] (1989) 18 NSWLR 193, 210B (Kirby P)’;
- The Institute failed to take the hint given by the Court in an earlier hearing in which the Institute unsuccessfully opposed a stay of the Full Tribunal’s orders (PJQ v Law Institute of Victoria [2005] VSCA 326), and that was not an irrelevant consideration.
