New South Wales Supreme Court CITATION : Jackson (previously known as Subramaniam) v Legal Practitioners Admission Board (No. 2) [2006] NSWSC 1403 HEARING DATE(S) : 13 December 2006 JUDGMENT DATE : 13 December 2006 JUDGMENT OF : Johnson J at 1 EX TEMPORE JUDGMENT DATE : 12/13/2006 DECISION : The Plaintiff is to pay the costs of the Defendant. CATCHWORDS : COSTS - unsuccessful appeal by Plaintiff against refusal of Legal Practitioners Admission Board to declare Plaintiff to be of good fame and character and otherwise suitable for admission as a legal practitioner - Board applies for costs - role of Board on hearing of appeal - nature of findings made concerning Plaintiff's evidence - finding that significant parts of Plaintiff's evidence were glaringly improbable - costs order made LEGISLATION CITED : Legal Profession Act 1987 Part 42.1 Uniform Civil Procedure Rules CASES CITED : Jackson (previously known as Subramaniam) v Legal Practitioners Admission Board [2006] NSWSC 1338 Board of Examiners v XY [2006] VSCA 190 PARTIES : Kala Jackson (previously known as Kala Subramaniam) (Plaintiff) Legal Practitioners Admission Board (Defendant) FILE NUMBER(S) : SC 12670/03 COUNSEL : Mr T Hall, Solicitor (Plaintiff) Ms TJ Anderson (Defendant) SOLICITORS : Hal Lawyers (Plaintiff) IV Knight, Crown Solicitor's Office (Defendant) LOWER COURT DATE OF DECISION : --- LOWER COURT MEDIUM NEUTRAL CITATION : --- IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Johnson J 13 December 2006 12670/03 Kala Jackson (previously known as Kala Subramaniam) v Legal Practitioners Admission Board (No. 2) JUDGMENT 1 JOHNSON J: On 5 December 2006, I gave judgment concerning the principal claim for relief in these proceedings: Jackson (previously known as Subramaniam) v Legal Practitioners Admission Board [2006] NSWSC 1338. 2 The Plaintiff appealed under s.14 Legal Profession Act 1987 against the refusal by the Defendant, the Legal Practitioners Admission Board, to declare that it was satisfied that the Plaintiff is of good fame and character and otherwise suitable for admission as a legal practitioner. 3 In my judgment, I concluded (at paragraphs 273 and 274) that I was not satisfied that the Plaintiff is of good fame and character and otherwise suitable for admission as a legal practitioner. The Amended Summons was dismissed. However, as agreed at the conclusion of the hearing, I stood the proceedings over until today to allow the Plaintiff and the Board an opportunity to consider my judgment for the purpose of determining whether an application for costs was to be made. The Board Seeks Costs 4 Today, an application for costs has been made on behalf of the Board. That application is opposed by the Plaintiff. The Role of the Board on the Appeal 5 In my judgment (paragraphs 16 to 22), I considered the role of the Board in this appeal. I observed that the Plaintiff, in commencing these proceedings and maintaining them over a period exceeding three years, had not joined either the Council of the Law Society of New South Wales or the Council of the NSW Bar Association as a party to the proceedings. The relevant legislation (s.16(1) Legal Profession Act 1987) entitles those Councils to be represented on an appeal to the Court under s.14 of the Act. 6 When the hearing commenced before me, the only Defendant in the proceedings was the Board. At the outset, Ms Anderson, counsel for the Board, indicated the role which the Board would seek to play at the hearing. Reliance was placed upon the Victorian practice referred to in a decision of the Victorian Court of Appeal in Board of Examiners v XY [2006] VSCA 190 and, in particular, the judgment of Chernov JA at paragraphs 18 to 20 and 25. 7 Ms Anderson indicated that the Board would seek to assist the Court in the resolution of the issues under consideration, including the significant factual issues which required determination, but would not act as a protagonist. I allowed the Board to appear and fulfil that active role, and I was assisted by the involvement of the Board at the hearing. Indeed, as I observed at paragraph 22 of my judgment, if the Board had not played that role, it would have been necessary to find some other party to fulfil that function. 8 The issues in this case required the adducing of evidence. Clearly, the Plaintiff adduced some evidence. However, it was necessary that there be an active party involved to adduce relevant evidence on all matters requiring consideration and determination, and to test by cross-examination the Plaintiff and witnesses called on behalf of the Plaintiff. That function was discharged by counsel for the Board (instructed by the Crown Solicitor), and the Court was assisted by the manner in which the hearing was conducted in that respect. 9 In Board of Examiners v XY, at paragraph 29, Chernov JA observed, with respect to the question of costs, that the practice of the Board of Examiners in Victoria on appeal was generally not to seek costs against an unsuccessful appellant, except where the appeal was plainly hopeless or where the refusal to grant the Schedule 14 certificate was based essentially on the applicant's lack of candour. The latter concept (the refusal to grant a Schedule 14 certificate) appears to be the Victorian equivalent of a process where there is a refusal to certify that the person is of good fame and character and otherwise suitable for admission arising from a finding of lack of candour in the applicant. 10 Accordingly, the practice in Victoria, where the Board appears as a participant in proceedings in the Court, is to limit the circumstances in which costs will be sought to such circumstances. That approach, of course, recognises the limited role that the Board plays in such proceedings, the Board not being an ordinary litigant with a case to advance in adversarial proceedings. 11 The analogy which I drew in my judgment (at paragraph 48) was that counsel for the Board played a role analogous to that of counsel assisting a Royal Commission or an investigative tribunal. The Costs Application 12 I return to the costs issue in this case. At the commencement of the hearing on 24 October 2006, Ms Anderson said (at T4.31): "The board will not seek costs against Ms Subramaniam unless your Honour were to come to the view that there had been a lack of truthfulness on her part in the proceedings. The board will resist any order for costs against it on the basis that it is here to in effect assist the court as much as it can." 13 Given the outcome of the proceedings, it is the first of these alternatives which is presently relevant. Ms Anderson submits that an order for costs is appropriate. 14 Applying the approach indicated by Ms Anderson at the commencement of the hearing (which is broadly consistent with the Victorian approach), reference has been made in submissions to a number of findings which I made with respect to the evidence of the Plaintiff. It is appropriate to set out paragraphs 267 to 269 of my judgment: "In a number of areas, I have rejected the evidence of the Plaintiff. In particular, I have found that her attempts to explain away her admissions to Ms Coughlan on 6 December 1996 were glaringly improbable. I have had the advantage of seeing the Plaintiff give evidence and I have considered carefully her evidence. For reasons given, I do not find the Plaintiff to be a witness whose evidence was frank and who faced the facts put before her or the implications of them: cf Law Society of NSW v Foreman [(1994) 34 NSWLR 408] at 449F. I have found portions of her evidence to be not credible. This assessment of the Plaintiff's credibility bears upon two things: her character and what she is apt to do in the future. These are related issues. Findings as to credibility may be taken into account in arriving at findings as to the two other matters: Smith v NSW Bar Association (1992) 176 CLR 256 at 268-269; Bannister v Walton [(1993) 30 NSWLR 699] at 723-729; Law Society of NSW v Foreman at 450C-D." 15 Ms Anderson cites those findings (which pick up more detailed findings earlier in my judgment (in paragraphs 224-227, 249(h)) that aspects of the evidence of the Plaintiff were glaringly improbable and did not constitute credible and reliable evidence), in support of the present application for costs. Ms Anderson submits that the findings which I ultimately made align with the suggested test upon which the Board would seek costs. As the position was identified at the beginning of the hearing, it is submitted that I should, in the exercise of discretion, make an order for costs in the Board's favour. 16 Mr Hall, for the Plaintiff, submits that an order for costs should not be made against the Plaintiff. He acknowledges that findings, including strong findings, were made adverse to the Plaintiff. He submits, however, that it was always the case that credit findings would need to be made on this appeal. It would be necessary for me to make findings concerning both the substance of the evidence of witnesses and their demeanour, including the Plaintiff and her witnesses (Ms Johnson and Mr Light) on the one hand, and Mr Dib and Ms Halls on the other hand. 17 Having undertaken that process, Mr Hall submits that the Court proceeded to make findings based on the evidence of those witnesses, including credit findings, and that this was a process which was inevitable in this case. He points to the fact that, in evidence before me, the Plaintiff essentially repeated the evidence which she had given at her first criminal trial in 1999 and, in particular, her attempts to explain admissions made in her conversation with Ms Coughlan on 6 December 1999. Mr Hall submits that, in this way, nothing new has occurred in these proceedings so that a costs order should not be made against the Plaintiff. 18 Ms Anderson responds by submitting that the fact that the Plaintiff has maintained on this appeal in 2006, what I have found to be a glaringly improbable explanation of her admissions advanced for the first time in 1999, is no reason to stand back from an order for costs in favour of the Board. Should a Costs Order be Made? 19 The Plaintiff named the Board as the sole Defendant in the proceedings commenced on 13 October 2003. 20 Given the unusual role (in this State at least) which the Board has played, I do not approach the matter on the basis of costs following the event (Part 42.1 Uniform Civil Procedure Rules). The Board does not invite such an approach. 21 I am, however, satisfied that the Board, being a party to the proceedings and having played the role it did and having identified at the beginning of the hearing a basis upon which costs would be sought, has established a proper foundation for a costs order being made in its favour in these proceedings. 22 The findings which I have made were not bare credit findings involving a fine balancing of the evidence of various witnesses. I found that the Plaintiff's evidence, with respect to her explanations for her admissions made on 6 December 1996, was glaringly improbable. That evidence was maintained at the hearing before me in October 2006, having been proffered for the first time at the Plaintiff's trial in 1999. The fact that the Plaintiff has given essentially consistent (but glaringly improbable) evidence at her trial in 1999 and again before me in 2006 does not, in my view, assist her on this application. 23 I am satisfied, in the exercise of discretion, that the appropriate course in these circumstances is to order that the Plaintiff pay the Board's costs. I am informed by Ms Anderson that those costs are substantial. Given the history of the proceedings, I recognise that any costs order will involve a significant sum. I have no doubt that considerable work was involved on the part of those representing the Board. I note that the Board was represented (capably) by junior counsel with one instructing solicitor. 24 In light of the findings which I have made and the factors to which I have adverted in these reasons, I am satisfied that it is appropriate and just, in the exercise of discretion, that the Plaintiff pay the costs of the Board. Order 25 Accordingly, I order that the Plaintiff pay the costs of the Board of these proceedings. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision 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 or Tribunal in which it was generated.