A Brisbane lawyer is challenging a costs order made against him after he was found guilty of unsatisfactory professional conduct.
In April in the Queensland Civil and Administrative Tribunal, Vincent Pennisi was fined $5000 and a public reprimand was ordered in relation to him unduly delaying the finalisation of an estate for about six years.
Mr Pennisi had also faced an allegation of failing to maintain reasonable standards of competence and diligence in relation to the preparation of a will. That charge was not made out by the Legal Services Commissioner (LSC).
The Principal Solicitor at Chermside firm Pennisi Zia lawyers was ordered by Member Lyons to pay the LSC’s costs of the proceedings, an order he challenged in the Court of Appeal yesterday.
His barrister Alexander Psaltis argued Member Lyons had made a critical error by not ruling there were exceptional circumstances under Section 462 of the Legal Profession Act 2007 (Qld). This would have warranted an order that Pennisi only pay a proportion of LSC’s costs.
The facts that gave rise to exceptional circumstances were that the will charge was the only contested charge; the will charge occupied the bulk of the first day of the hearing; and Mr Pennisi’s co-operation in relation to the estate charge meant that the costs relating to that charge were likely to be minimal, Mr Psaltis said.
He argued that the fact the hearing of the contested charge consumed all of the first day, and most of the second day of a two-day hearing, and included evidence such as expert reports, “renders or is capable of rendering the contested charge as a separable, definable issue”, creating “sufficiently exceptional circumstances”.
Barrister Michael Nicolson, for the LSC, re-iterated Member Lyons’ finding that “it is not possible to reason by analogy from the approach taken in courts applying the general rule as to costs, to the making of orders for costs in a discipline application”.
“It’s (Member Lyons’ decision) not an obvious error in relation to the exercise of the discretion which should motivate this court to form a different opinion,” Mr Nicolson said.
The Court of Appeal reserved its decision yesterday.