In June 2014, Mr Kitto was ordered by the Federal Circuit Court to personally pay $1,250 to his client’s former partner, in conjunction with a litigation matter, for reason that neither he nor his client appeared for a listed application. He had made arrangements for his client to appear without representation on the day and told the client the hearing was in Burnie, but the matter was instead called on in Launceston and neither Mr Kitto nor his client were present.

The Court 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”.

The time for payment of the costs was to expire on 9 August 2014, but despite repeated correspondence from Mr Kitto’s client’s former partner (the intended recipient of the costs), he either did not reply or did not make payment.

In September of that year, Mr Kitto wrote to his client about the costs of the proceedings in the Federal Circuit Court: “in that letter he listed the amounts payable pursuant to what he called ‘costs orders that have been made against you and this firm’. His list included the amount of $1,250. He mentioned that the order had been made against him personally but included the amount as if he expected his client to pay it,” the Supreme Court noted.

Finally, in January 2017, the client’s former partner made a written complaint to the Legal Profession Board of Tasmania and, following the launching of an investigation and correspondence between the board and Mr Kitto regarding the matter, he paid the costs (plus interest) to the complainant.

In February of 2018, he also paid the complainant’s solicitors their costs in relation to the attempts to enforce the order.

The board contended that Mr Kitto was guilty of professional misconduct “not just because he failed to pay the costs until October 2017, but also because he resisted paying the costs without his client first having paid him the required amount”.

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He did not dispute the assertion by the board that he had breached a court order which was made against him personally and that said breach was “serious and/or aggravated by reason of excessive delay”.

In considering whether or not the conduct amounted to professional misconduct, the Supreme Court noted that there was no suggestion that Mr Kitto lacked the means to pay the required costs within the period prescribed.

“If his client indicated a desire to pay those costs himself, the only honourable course was to insist on paying the costs personally as ordered by the Court. 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,” it said.

“Mr Kitto’s letter of 12 February 2018 shows that he saw nothing wrong with the costs in question being included in a claim made by his client against another person in separate litigation, even though his client had no legal liability to pay those costs, and even though their inclusion in the claim might have misled the recipient of that by creating an impression that there was such a liability.”

The complainant was not a wealthy woman, the Court continued.

“For over three years she remained out of pocket because Mr Kitto stubbornly failed and refused to pay her money that a judge had ordered him to pay her. She was put to further expense in relation to the enforcement proceedings,” it said.

“Mr Kitto’s conduct was disgraceful conduct of a sort that tends to bring the whole of the legal profession into disrepute.”

Mr Kitto’s conduct in relation to the matter “says quite a lot about his standards of competence and diligence.”

“He repeatedly ignored communications from the complainant’s solicitor. He repeatedly sought to fob off the board’s officers with requests for more time and ignorant suggestions that the complaint should be dismissed. For years he apparently did not understand that he should not have been looking to his client for the money to satisfy the costs order, even if the client was keen to pay the money,” the Court mused.

This was a “clear case of professional misconduct”, the Court deduced, noting that Mr Kitto was guilty in the respects alleged in the declarations sought by the board”.

In addition, and having regard not only to the circumstances of the case but also the fact that this was Mr Kitto’s third disciplinary prosecution, the Supreme Court imposed a fine of $3,000.

The case citation is Legal Profession Board of Tasmania v Kitto [2019] TASSC 39 and it can be found on AustLII.