BRJ v Council of the NSW Bar Association

Supreme Court of NSW|2016-03-11|Before: Adamson J, Lockhart J

Solicitors: Eakin McCaffrey Cox (First Defendant) File Number(s): 2015/237282

Introduction

On 29 February 2016 I made orders and published reasons in the plaintiff's substantive appeal against the decision of the New South Wales Civil and Administrative Tribunal (the Tribunal): BRJ v Council of the New South Wales Bar Association [2016] NSWSC 146. I ordered the plaintiff to pay the costs of the Council of the New South Wales Bar Association (the Bar Council) unless an application was made for a different order.
By application made on 7 March 2016 the plaintiff sought orders that each party bear its, or her, (as the case may be) costs of the proceedings in this Court and in the Tribunal. The Bar Council submitted that the plaintiff ought be ordered to pay its costs in this Court and that there was no jurisdiction to disturb the Tribunal's costs order, leave to appeal neither having been sought nor granted.

Summary of the plaintiff's submissions

In support of her submission that she ought not be ordered to pay the Bar Council's costs in this Court, the plaintiff argued: 1. The Bar Council is, relevantly, a prosecutor, or fulfils a quasi-prosecutorial role, in disciplinary proceedings; 2. As such, the Bar Council has a duty to assist the Tribunal by drawing to its attention relevant decisions, whether they are in favour of, or against the proposition for which the Bar Council contends; 3. The Bar Council failed in its duty by not referring the Tribunal to the relevant decisions of Robinson v The Law Society of New South Wales (Supreme Court of New South Wales, Court of Appeal, unreported, 17 June 1977) (Robinson), Council of the Law Society of New South Wales v Kay [2009] NSWADT 139 (Kay) or Council of the New South Wales Bar Association v Fitzgibbon [2012] NSWADT 56 (Fitzgibbon); 4. The Bar Council also failed in its duty by arguing, in the Tribunal, that the law in New South Wales was as stated in Legal Practitioners Conduct Board v Ardalich [2005] SASC 478 (Ardalich); 5. It was necessary for the plaintiff to bring the appeal proceedings in order to clarify, for the benefit of others, whether, and in what circumstances, mental illness is relevant to a finding of unsatisfactory professional conduct; 6. The plaintiff's conduct (which was found to amount to unsatisfactory professional conduct) was caused by a "serious, life-threatening illness" which was prevented her from earning a living and caused her considerable financial hardship.

Summary of the Bar Council's submissions

The Bar Council pressed its application for costs on the following bases: 1. It succeeded in this Court on the same points on which it succeeded in the Tribunal and also with respect to the new points raised in this Court for the first time; 2. Although the Bar Council is a model litigant, it is not a "prosecutor" and, accordingly, the provisions of rules 82-93 of the New South Wales Barristers' Rules (the Bar Rules) do not apply to it; 3. The decisions referred to did not lead to a different result and, in the case of Robinson, was irrelevant, and, in the cases of Kay and Fitzgibbon, was found to be obiter and wrong in a material respect; 4. There was no wider public interest in the appeal since the proceedings concerned factual circumstances peculiar to the plaintiff which involved no principle of general application; 5. There is no evidence to connect the plaintiff's medical condition either with her decision to prosecute the appeal or to conduct it in any particular way; 6. There is no evidence of financial hardship but, even if there was, it would not provide a reason to displace the ordinary principle that costs follow the event.

Consideration

Costs in proceedings such as these are a matter of discretion: Civil Procedure Act 2005 (NSW) s 98. Ordinarily they are to follow the event: Uniform Civil Procedure Rules 2005 (NSW), r 42.1. The matters raised by the plaintiff as reasons why they ought not, are, in substance, that: the Bar Council is disentitled to its costs because of its failure to refer the Tribunal to relevant decisions; the litigation is public interest litigation; and the special circumstances of the plaintiff's mental illness and financial hardship.
I reject the plaintiff's contention that the Bar Council is to be regarded as a "prosecutor" within the meaning of the Bar Rules. The relevant rules are, in terms, apposite to criminal trials and do not extend to disciplinary proceedings which are civil proceedings and sui generis: Wentworth v New South Wales Bar Association (1992) 176 CLR 239 at 250-251. Nonetheless the Bar Council accepted that it is a model litigant and, as such, has an obligation to draw to the Tribunal's attention relevant cases which support or go against propositions for which it contended.
The extent of the obligation to draw to the Tribunal's attention other decisions of courts, or the Tribunal itself, depends on the circumstances of the particular case. The Tribunal is bound by decisions of the Court of Appeal and of single judges of this Court since these are, relevantly, superior courts. Accordingly, there is an obligation to refer the Tribunal to binding decisions from these courts. There is no obligation to refer the Tribunal to decisions of other jurisdictions where the legislative provisions are different.
Although the Tribunal could expect that other Tribunal decisions in substantially similar cases might be referred to it, for the purposes of comity and consistency, I do not regard there to be an obligation on model litigants to do so. The Tribunal's decisions in disciplinary cases are, like sentencing decisions, peculiarly sensitive to the facts, both objective and subjective. To require litigants, even model ones, to refer a Tribunal to "similar" cases may have the effect of diverting the Tribunal's attention from the terms of the legislation and the facts of the instant case.
In the present case, I do not regard the Bar Council as having had any obligation to refer the Tribunal to Robinson. For the reasons given in my principal judgment, it concerned solely professional misconduct and the wording of the statute was materially different. The decisions of Kay and Fitzgibbon were examples of cases where the practitioner suffered from mental illness but neither stood for any general principle, which, in any event, would not have been binding on the Tribunal, since neither was a decision of a superior court. There was nothing improper about the Bar Council referring the Tribunal to Ardalich since, although it concerned different legislation, the statements of principle were arguably relevant by analogy.
Courts and Tribunals rely on the assistance of counsel to draw their attention to binding authority. No failure in this regard has been identified. The choice by counsel as to which non-binding decisions ought be referred to in argument is, largely, a matter for the counsel's discretion. Computer research tools have facilitated the search for decisions on similar facts. Such data bases proceed on the (false) assumption that all decisions are equal. Justice Lockhart said, extra-curially, in "The Doctrine of Precedent- Today and Tomorrow" (1987) 3 Aust Bar Review 1 at 19: "What it [computer research] will do is to encourage the obsessive citation of case law as an end in itself and the uninformed search after exact precedent."
I do not regard the Bar Council as having conducted itself at the hearing in the Tribunal in any way that could be regarded as disentitling it from a costs order in its favour in this Court.
I do not consider the present proceedings as having any particular public interest, beyond that which is ordinarily present in challenges of this nature. In the principal judgment, I endeavoured to summarise what can be gleaned from the authorities. What emerged is that statements of principle are difficult to formulate in this area, since the result depends on the circumstances of the given case. The plaintiff brought the proceedings for her own benefit. Although it may be that the principal judgment will provide some guidance in the future, the relevance of mental illness in any given case depends on the facts of the case.
I am not persuaded that the plaintiff's mental illness was causally related to the appeal. There was no evidence adduced as to any causal connection between her mental illness and the bringing, or conduct, of the appeal. The plaintiff argued the appeal herself in an articulate and competent way and made detailed written submissions, to which she spoke at the hearing.
There was no evidence of financial hardship. In any event, litigation is expensive and may create hardship for anyone of ordinary means. It is not generally regarded as a reason for not ordering costs against a litigant. I do not regard it as warranting a departure from the general proposition that costs ought follow the event in the present case.
The Bar Council successfully defended the challenge to the decision of the Tribunal. The decisions which were not referred to the Tribunal were either inapplicable, or inconsistent with authority. For the foregoing reasons, the appropriate order is that costs follow the event.

The plaintiff's application with respect to the costs in the Tribunal

On 11 December 2015, the Tribunal ordered the plaintiff to pay the Bar Council's costs of the proceedings: Council of the New South Wales Bar Association v BRJ (No. 2) [2015] NSWCATOD 140.
Section 566 of the Legal Profession Act 2004 (NSW) applied (notwithstanding its repeal and replacement on 1 July 2015) by reason of the transitional provisions in cl 7(3), Sch 1 to the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act). Section 566 obliged the Tribunal to make an order requiring an Australian legal practitioner who has, relevantly, been found to have engaged in unsatisfactory professional conduct, to pay the Bar Council's costs "unless the Tribunal is satisfied that exceptional circumstances exist". After considering the matters relevant to the question, the Tribunal, at [35], recorded that it was not satisfied of exceptional circumstances. Accordingly, it ordered the plaintiff to pay the Bar Council's costs of the proceedings.
The plaintiff submitted in this Court that the Bar Council ought not have its costs of the hearing in the Tribunal as it had failed to draw the Tribunal's attention to Robinson, Kay and Fitzgibbon. This argument has been dealt with above.
The Bar Council contended that this Court's jurisdiction with respect to the costs order in the Tribunal has not been engaged as no leave to appeal has been sought.
The summons was filed on 13 August 2015. The further summons was filed on 24 August 2015. The accompanying statement of grounds relied upon described the appeal as being made in relation to the decision of 16 July 2015, being the substantive decision of the Tribunal, not the decision regarding costs, which was not made until 11 December 2015.
The costs decision is a "decision" within the meaning of s 5(1)(a) of the CAT Act. Clause 29(6) of Part 6 of Sch 5 provides that an appeal against a decision on costs lies only with leave. There is an apparently unresolved question whether leave is required where any costs order is challenged or whether it is only required where the only challenge that is made is to the costs decision. The Court of Appeal has not resolved this question: Haddad v Chief Commissioner of State Revenue [2014] NSWCA 23 at [16]-[24] per Ward JA (Macfarlan and Leeming JJA not deciding).
Neither leave to appeal nor an extension of time to appeal has been sought. The plaintiff did not include any challenge to the Tribunal's costs order in her statement of grounds relied upon. Nonetheless, the plaintiff has provided written submissions in support of her application that the costs order of the Tribunal ought be overturned. The Bar Council has had an opportunity to respond to these submissions. In these circumstances I propose to consider the arguments put, since the merits of any challenge to the order would be relevant to any grant of extension of time or to any grant of leave.
The Tribunal's costs decision was made after receiving evidence and submissions from the plaintiff and the Bar Council. By the time the Tribunal considered the question of costs, its attention had been drawn by the plaintiff to the decisions of Kay and Fitzgibbon which were not raised previously (in her further written submissions dated 4 September 2015): see Council of the New South Wales Bar Association v BRJ (No. 2) [2015] NSWCATOD 140 at [36]-[37]. The Tribunal's reasons record its detailed consideration of the circumstances of the case (including the additional authorities referred to by the plaintiff) and concluded that the circumstances were not "exceptional" within the meaning of s 566(1) of the 2004 Act.
The plaintiff has not identified any error either in the Tribunal's assessment that the circumstances were not "exceptional" or in the exercise of its discretion that she ought to be ordered to pay the Bar Council's costs. Accordingly, even if leave had been required, and granted, and time had been extended, any appeal against the costs decision would not succeed as no error has been identified or established.

Order

I make the following orders: 1. Order the plaintiff to pay the Bar Council's costs of the proceedings in this Court. 2. Make no order disturbing the order made on 11 December 2015 by the Civil and Administrative Tribunal that the respondent (plaintiff) pay the applicant's (Bar Council's) costs of the proceedings as agreed or assessed.

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. Decision last updated: 14 March 2016

Legal Profession Act 2004(NSW)

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