UPDATE … Solicitor ordered to pay court costs personally, within in 60 days … It took over three years for him to fork-up … Unacceptable delays … Far-fetched excuses and extensions of time … Finding of professional misconduct … Disgraceful … Other unattractive priors
In this latest episode, Chief Justice Alan Blow found the Launceston law-shop proprietor guilty of professional misconduct for a “disgraceful delay” in complying with a Circus Court order to pay an opposing party’s costs.
According to Blowers, a costs order against Kitto personally was made by Judge Stuart Roberts on June 10, 2014. It took till October 31, 2017 for him to cough-up.
Blow described Roberts’ costs order as “well deserved”. Kitto’s client had made an application that was listed for hearing in Launceston at 10am on June 10, 2014. Apparently, it was arranged for the client to appear without Kitto by his side. In fact, he told his client that the hearing was in Burnie, so come the appointed time neither the client nor the lawyer were present in Launceston.
Eventually, Kitto was tracked down and told to appear in the afternoon, where the judge made the following order:
“That the respondent’s costs thrown away today fixed in the sum of $1,250 are to be paid by the applicant’s lawyer, James C. Kitto, within 60 days of today.”
That meant the time for payment expired on August 9, 2014 – in fact it took over three years for Kitto to pay. The other party was the former partner of Kitto’s client and she is the one who ultimately made a complaint to the Legal Profession Board of Tasmania.
On September 1, 2014 Kitto wrote to his client, listing the amounts that were payable. He mentioned that $1,250 had been awarded against him personally, but “included the amount as if he expected the client to pay it”.
There were numerous requests from the other side to come good with the money – these were either ignored or fobbed off with requests for extensions of time.
At one point the complainant’s solicitor wrote:
“Can I respectfully draw your attention to the non-payment of a solicitor cost order could be a matter that is reportable to the Legal Profession Board as either professional misconduct or unprofessional conduct.”
Kitto replied, saying he noted “your further threat in relation to complaining to the Legal Profession Board in relation to the subject costs order, which I suspect is without any merit whatsoever”.
He said his client has graciously advised him that he intended to pay the account and that settlement would take place in the following four weeks.
Four months later payment had not been made and there was no response to further requests to pay.
Over a year after Judge Roberts’ order, the complainant’s solicitor applied to the Circus Court for an enforcement warrant, authorising the seizure and sale of Kitto’s property to satisfy the costs order.
A Mr Marshall was instructed to take action on the warrant, but Kitto told him he would be sued if he seized any property. Marshall then sent a bill for $385 to the complainant’s solicitor.
On January 24, 2017 the complainant notified the board and things got rolling. Kitto was asked for submissions within 21 days.
Still no submissions by April 10. At some stage he proposed that the complainant take part in a mediation – an invitation that was declined.
The matter then proceeded to investigation. On July 25, 2017 the board’s investigator sent Kitto a notice requiring answers to questions, verified by stat dec. The deadline was August 21, 2017 – more than three years after Judge Robert’s order.
He provided the statutory declaration one day late, explaining that he had not charged his client and that he had not satisfied the costs order.
In late October 2017, the client said he would not be able to pay the costs that Kitto has been ordered to pay. On October 31, 2017 Kitto forked-up the costs of $1250 plus interest of $321.22.
In further correspondence with the board, Kitto explained that his client had “agreed on his own volition” to pay the costs on his behalf and that the costs in question were being concluded in a claim made by his client in separate litigation, in which another lawyer was acting.
He added that, but for his client’s insistence on paying the costs, he would not have delayed coming up with the money himself.
In February 2018, Kitto paid the complainant’s solicitors their costs for attempting to enforce the order, as well as Marshall’s fee of $385.
The board wanted him done for professional misconduct, whereas Kitto thought unsatisfactory professional conduct was sufficient, plus he consented to orders that he be reprimanded and complete a course in legal ethics and professional responsibilities.
He is also required also to provide to the board a “reflective practice report” demonstrating he had “reflected on the issues that gave rise to this order …”
Blow CJ said:
“By looking to his client for payment, Mr Kitto was looking to an innocent man for the payment of money that that man had no legal or moral obligation to pay, and was seeking to circumvent an order made by a judge that was partly punitive in nature.”
There is no suggestion that Kitto lacked the means to pay within the 60 days. The complainant was not a wealthy woman and for over three years she was out-of-pocket and was put to the further expense of enforcement proceedings.
“Mr Kitto’s conduct was disgraceful conduct of a sort that tends to bring the whole of the legal profession into disrepute … This is a clear case of professional misconduct.”
In working out the fine, the CJ took into account stressful issues faced by the lawyer in 2014 and 2015. His relationship with his partner had broken down. A police family violence order was made against him. He was prosecuted for assaulting his partner, but was acquitted. For a long time he did not have contact with his children and was without secretarial assistance for a period. There was litigation between family members. His office was in a property the subject of that litigation.
However, those stresses abated long before the costs order was paid in October 2017.
All in all, Blowers thought that a fine of $3,000 would do the job.
Legal Profession Board of Tasmania v James Collingwood Kitto
In March 2009, it was reported that the former Tasmanian CJ, Hollywood Pete Underwood dismissed an application from the Law Society to have Kitto spanked over allegedly giving a false denial under oath in 2002, while fighting his dismissal from law shop Zeeman, Kable & Page.
Hollywood said it had not been established that Kitto knew the denial was false and that the misconduct had not been established.
The State Industrial Relations Commission had been told that “page after page” of lesbian pornography had been found on his computer at work.
Kitto denied he had downloaded this material and that he intended to call experts to explain how the pornography had arrived on his hard disk.
In an earlier judgment, Justice Ewan Crawford, as he then was, called Kitto “incompetent”.
Magistrate Ian Matterson also admonished him for swearing and throwing documents on the floor of the court.
“He conducted himself in such a manner that I fail to see how I can have any faith in what he is doing in this court system …
I am very sorry to have someone like that in the legal profession. When it comes to credibility, I think this young man has none.”
Another favourite Kitto case concerns his fight with the Tasmanian Water and Sewage Corporation over a debt of $3,911.66 for water and sewerage services owed on two properties.
He paid the claim after the expiry of an offer by TasWater to accept the money without costs.
The claimant subsequently applied for an order for costs on an indemnity basis. This was opposed by Kitto, arguing that a judgment is required before there can be an award of costs.
Here, Magistrate Olivia McTaggart found there were “special circumstances” justifying an award of indemnity costs against Kitto.
Among other things, Kitto has threatened to file a special leave application in the High Court to test the validity of the debt. The magistrate also found that he unreasonably protracted the proceedings and increased costs; failed to abide by a court ordered timetable for the hearing; maintained an argument even though he knew there was High Court authority to the contrary; falsely claimed an abuse of process by TasWater; unreasonably refused an offer to settle; claimed he was “confused” where there was no reasonable basis to make the claim; and so on and so on.