Council of the Law Society of New South Wales v Fisher

Evidence and submissions of the parties

1. The parties filed and served evidence and submissions on disciplinary orders and costs issues prior to the hearing of stage one (i.e. liability) issues. The parties were given an opportunity to provide further evidence and submissions in relation to the next stage of proceedings regarding appropriate disciplinary orders and costs. Directions in this respect were included in the Tribunal's reasons in the stage one decision. The Law Society filed submissions on 10 June 2021 in accordance with the Tribunal's directions for filing of further submissions and evidence. The Respondent did not provide any further evidence or submissions in response to the Tribunal's directions of 31 May 2021.
2. The Tribunal also provided an opportunity to the parties to provide written submissions on a specific issue relevant to the awarding of costs under cl 23(1) of Sch 5 to the NCAT Act and s 303(1) of the Uniform Law. On 13 August 2021, a Registrar of the Tribunal wrote to the parties seeking their views, within 14 days, on whether the Respondent ought to be required to pay the costs of the Applicant in relation to those parts of the proceedings relating to whether the disciplinary application lodged by the Law Society could properly be determined "on the papers" under s 50(2) of the NCAT Act. The Law Society made supplementary submissions on costs dated 24 August 2021, filed and served on 25 August 2021. The Respondent made submissions on costs dated 21 August 2021, received by the Tribunal on 30 August 2021.

Appropriate disciplinary orders

1. The Law Society seeks a disciplinary order that the Respondent be reprimanded, and "such other orders as the Tribunal deems fit". The Law Society relies on its submissions dated 9 and 22 June 2020, together with further written submissions dated 10 June 2021. The Law Society says that a reprimand would reflect the seriousness, and appropriately reflect the Tribunal's disapprobation, of the Respondent's conduct. The Law Society refers to case law as to the protective nature of the Tribunal's jurisdiction, and submits that a reprimand would be an appropriate penalty for the purposes of deterring both the Respondent and other legal practitioners from engaging in similar conduct in the future, and thereby protecting the public.
2. In seeking the issue of a reprimand to the Respondent, the Law Society argues that such an order would be generally consistent with orders previously made by the Tribunal in the following matters: Council of the Law Society of New South Wales v Lewis [2019] NSWCATOD 100, Law Society of New South Wales v Thompson [2018] NSWCATOD 57, Council of the Law Society of NSW v Powell [2019] NSWCATOD 24, and Council of the Law Society of NSW v Jiao [2020] NSWCATOD 63. In each of these decisions, the Tribunal issued a reprimand in relation to breach of undertakings by legal practitioners to complete practice management courses. In Lewis, Powell and Jiao, fines were also imposed (in the amounts of $4000, $1000 and $5000 respectively). No fine is sought by the Law Society in this matter.
3. In her Reply dated 17 April 2020 (and lodged 22 April 2020) and submissions filed prior to the stage one hearing (i.e. written submissions dated 25 June 2020 and 27 December 2020), the Respondent submits that the order sought by the Law Society (i.e. reprimand) is "not appropriate, unbending and exceedingly harsh", having regard to her personal circumstances. She asks the Tribunal to consider her "circumstances of physical, emotional and financial hardship" in determining what disciplinary orders to make. The Respondent also disputes the relevance of the cases said by the Law Society to be analogous.
4. The Respondent relied on affidavit and oral evidence at the stage one hearing regarding her personal, medical and financial circumstances. She relies on this same evidence in relation to the Tribunal's determination of what disciplinary orders are appropriate and costs. The evidence includes: 1. Details of her Public Sector Superannuation pension as at January 2020; 2. Individual non-business payment summary for the 2014/2015 financial year, which the Respondent says is "the only one for that year and subsequent years"; 3. Business activity statements for the periods: April to June 2016; January to March 2016; October to December 2015; July to September 2015; April to June 2015; and January to March 2015. 4. Evidence of her cessation of employment with the Australian Taxation Office in July 2010; and letter of recommendation for an Invalidity Retirement Certificate, including 2010 Claim Summary. 5. Medical Reports dated 9 September 2011 and 28 June 2010. Specialist referrals dated 22 June 2020, 6 October 2020 and 23 November 2020; Discharge Referral Notes from 21 August 2020, 19 May 2020, 26 October 2019, and 23 July 2015; a specialist referral dated 1 November 2007; Medical Report dated 27 August 2009; Medical Report for the Respondent's husband dated 8 February 2019. 6. A completed Mobility Parking Scheme application form.

Costs

1. The Law Society seeks an order requiring the Respondent to pay its costs as agreed or assessed, but only in relation to the determination of the Law Society's Amended Application for Disciplinary Findings and Orders (the "disciplinary proceedings"). It does not seek an order requiring the Respondent to pay its costs of and incidental to the hearing on 23 April 2021 which concerned whether the Tribunal had jurisdiction to determine "on the papers", pursuant to s 50(2) of the NCAT Act, stage one of the disciplinary proceedings (the "jurisdictional question").

Disciplinary proceedings

1. The Respondent submits that there are exceptional circumstances in this matter, and asks the Tribunal to take into account her financial situation as a disability pensioner with limited income. She relies on the evidence referred to earlier as to her personal circumstances. She also argues that exceptional circumstances include the "out of the ordinary/complex and novel points of law" in this matter, and further, that the Law Society behaved vexatiously and unreasonably in refusing to engage in an amicable resolution that did not restrict her right to pursue the practice of law in the future.
2. Other than in relation to the jurisdictional question, the Law Society argues that no exceptional circumstances exist in this case; the Respondent's hardships do not give rise to exceptional circumstances and the Law Society should not be deprived of an order for costs in its favour, and thus the ability to recoup its costs, because the Respondent presently has difficulty in paying costs. The Law Society says it is open to negotiation with the Respondent as to reduced costs or a repayment plan.
3. The Law Society further submits that its disciplinary application lodged with the Tribunal was not vexatious, misconceived or unreasonable (as submitted by the Respondent). Moreover, the evidence does not support the Respondent's assertions that the Law Society offered the Respondent an "unconscionable settlement proposal". The Law Society also submits that there are no out of the ordinary, complex or novel points of law, as the complaints about the Respondent's conduct and points of law regarding the provision of undertakings have previously been considered by the Tribunal on many occasions.

Jurisdictional question

1. The Law Society submits that, in the present proceedings, the following matters constitute exceptional circumstances for the purposes of Sch 5, cl 23 NCAT Act and s 303, Uniform Law: 1. Costs are intended to compensate a successful party: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [44]. As the jurisdictional issue was not ultimately decided, neither party was successful. It was noted that the Tribunal had made an order on 23 April 2021 that stage one proceedings be listed for an oral hearing, expressly stating that it was not necessary to decide whether s 50(2) of the NCAT Act continued to operate in light of the provisions of the Uniform Law, the Application Act and Sch 5 to the NCAT Act: see stage one decision at [35]. 2. The Society does not seek an order requiring the Respondent to pay its costs of and incidental to the hearing on 23 April 2021.
2. The Respondent made no submissions on the question of costs of the jurisdictional question, other than to argue generally that she should not be required to bear any of the Law Society's costs in the proceedings.

Order under s 50(2) of the NCAT Act

1. Towards the end of the stage one hearing, the parties each made oral submissions to the effect that the issues for determination in the next stage of proceedings could be dealt with adequately through the "on the papers" procedure under s 50(2) of the NCAT Act, which dispenses with a hearing. We record that this was the Respondent's expressed preference, and the Law Society had no objection to this course of action. The parties were also provided with the opportunity to provide further submissions in this regard after publication of the stage one decision.
2. While in the stage one decision we expressed doubt that the Tribunal has jurisdiction to determine stage one issues in the absence of a hearing under s 50(2) of the NCAT Act (see [25]-[34]), our preliminary view was that the issues of appropriate disciplinary orders and costs could be determined through an "on the papers" procedure under s 50(2), subject to the statutory requirements in s 50 being met in the particular case.
3. The Law Society in its further written submissions dated 10 June 2021, and supplementary submissions on costs dated 24 August 2021, indicated that it had no objection to stage two proceedings being determined "on the papers" under s 50(2), where the Tribunal is satisfied that questions as to appropriate protective orders and costs can be so determined. The Respondent has not provided any further submissions on the point.
4. We are satisfied that the remaining issues for determination in these proceedings (i.e. what disciplinary orders should be made, and what costs orders are appropriate) can be adequately dealt with "on the papers", by dispensing with a hearing, and we make an order in this regard pursuant to s 50(2) of the NCAT Act.

Relevant legal principles

1. Disciplinary proceedings are not punitive in nature but are protective of the community. They also operate to educate both the profession and the community. In Law Society of New South Wales v Walsh [1997] NSWCA 185 at 40 it was said that the Court's duty to protect the public is not confined to the protection of the public against further misconduct by the particular practitioner who is the subject of disciplinary proceedings. It extends to protecting the public from similar defaults by other practitioners. We think the same obligation lies on the Tribunal.
2. While there is no assertion of harm to an individual or client in the present matter, the Tribunal's power is to be exercised in a manner that is likely to achieve the maintenance of a high standard of conduct within the profession which will continue its good reputation, and so protect the future of the profession: see e.g. Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 441; New South Wales Bar Association v Meakes [2006] NSWCA 340 at [113]-[114]; stage one decision at [147].
3. We agree with the Law Society's submission that it is relevant to consider the effect the orders sought would have on the understanding of the profession and the public as to the standard of behaviour required of legal practitioners. As Street CJ said in Ex parte Macaulay (1930) 30 SR (NSW) 193 at 193-4: "Unless the Court insists on a high standard of conduct on the part of solicitors - unless the Court punishes severely every lapse from the proper standard - the public will never be properly guarded and the profession will never retain the respect which it ought to have in the community".
4. Having found the Respondent guilty of professional misconduct, the Tribunal may make "such orders as it thinks fit": Uniform Law, s 302.

Consideration - appropriate disciplinary orders

1. In the stage one decision we canvassed both the factual and legal issues in this matter in some detail. We said that the Respondent was a solicitor and a legal practitioner for the purposes of the Uniform Law during the relevant period (despite her denials that this was the case). The Respondent's provision of, and failure to comply with, the undertaking to complete a practice management course occurred in connection with the practice of law. She provided the undertaking in support of her application for a practising certificate that would enable her to engage in legal practice in New South Wales as a principal and without supervision. The Law Society issued the Respondent with the practising certificate on the basis that, among other things, she provide the undertaking.
2. We found that the undertaking in question applied to the Respondent, notwithstanding that she did not practise law during the currency of her practising certificate(s). As we said at [134] of the stage one decision: "The issue of the practising certificate gave the Respondent the right to practise law unsupervised at any time during the currency of the certificate. The right of practice contained in the grant of any type of practising certificate, let alone an unrestricted practising certificate which allows the holder to practise unsupervised, is a privilege the importance of which should not be underestimated by a lawyer admitted to the roll of solicitors in this State. It is the right to practise law that is material, not whether the solicitor in question actually practised law for some or all of the currency of the practising certificate, or for none of that period."
3. We consider the Respondent's practising certificate condition breach to be serious in nature. A practising certificate constitutes an authority to carry on practice as a legal practitioner. The relevant condition was imposed on the Respondent's practising certificate to protect the public. This is because the Law Society imposed the condition to ensure that the Respondent would undertake the appropriate practice management training as soon as possible after being issued with a practising certificate authorising her to work as the principal of a law practice. Any breach of any condition imposed on the right to practice is a matter to be taken seriously; moreover, here the Respondent's breach of the practising certificate condition extended over a considerable period.
4. We also consider the Respondent's breach of the undertaking to be serious. In the stage one decision, we emphasised the importance of practitioners complying with undertakings and referred to previous Tribunal decisions to the same effect. We also said that a breach of an undertaking to the Law Society is particularly serious. This is the case regardless of whether the Respondent misunderstood the terms of the undertaking in question, or whether the Respondent faced difficulties in complying with the undertaking in light of her financial, medical or other personal circumstances.
5. While we have had regard to the Respondent's personal circumstances (including medical and financial difficulties), we think it appropriate that disciplinary orders are made in this case. There are matters about which legitimate criticism can be made of the Respondent in respect of the period from August 2015. These include that she should not have signed the undertaking given to the Law Society in connection with her application for a practising certificate without first having checked what was required of her in giving that undertaking. She should have advised the Law Society as soon as she was aware of her difficulties in complying with the undertaking. She should have sought to be released from the undertaking by the Law Society. She was not entitled to expect the Law Society to pursue her to assess her circumstances and offer release from the undertaking.

Whether reprimand appropriate

1. The question arises as to what disciplinary order(s) are appropriate in the circumstances. We said at [145(7)] of the stage one decision that we were not aware of a case analogous to the present one, namely where the practitioner giving the undertaking to complete a practice management course was not practising law in any capacity when the undertaking was given, and did not subsequently practise law. While we recognised that the factual circumstances were unusual, we did not consider that factor would justify a finding of unsatisfactory professional conduct, and not the more serious finding of professional misconduct. The Respondent had an entitlement to practise, and she could have commenced practising law unsupervised at any time between August 2015 and June 2017 whilst holding the relevant practising certificates.
2. Where the Tribunal makes a finding of professional misconduct on the basis of a breach of a practising certificate condition and/or breach of undertaking by a solicitor to undertake a practice management course, it has been usual for the Tribunal to order that a reprimand be issued. We have considered in the circumstances of this case whether a caution would be warranted, instead of a reprimand. In doing so, we also take into account the seriousness of the conduct, the need for deterrence (both specific and general), and the level of insight or contrition demonstrated by the Respondent in respect of her misconduct.
3. Whether the practitioner in question has shown some level of insight into the wrongful nature of the conduct, or contrition for the wrongful conduct, will generally be relevant to appropriate protective orders. However, as discussed by Leeming JA in Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [11]-[13], while contrition is an influential factor in determining what orders are appropriate, its absence cannot always be relied upon to validate a higher penalty.
4. The Respondent initially denied any wrongdoing in the liability stage of proceedings, and argued that the disciplinary finding sought by the Law Society (that of professional misconduct) was inappropriate and harsh. In written submissions dated 9 June 2020, the Law Society commented on the Respondent's lack of insight into the wrongfulness of, or contrition for, breaching the undertaking. The Respondent's lack of contrition was said to be further evidenced in her affidavit evidence, where an apology she provided to the Law Society in her letter of 9 March 2018 was for misinterpreting what the undertaking required, and not for breaching the undertaking.
5. The Respondent made oral submissions at the stage one hearing that she interpreted the undertaking the wrong way; she did not knowingly contravene the undertaking or a provision of the Uniform Law; and her error was purely in misinterpreting the undertaking. She gave evidence, which was unchallenged, that she is of upstanding character, volunteers in the community, and that she is not a person who engages in misconduct. Noting that she relies on the same evidence in the stage two considerations, we consider that she has expressed some regret for misinterpreting the terms of the undertaking, and therefore failing to comply with the undertaking and practising certificate condition. Accordingly, we think there is evidence which indicates that she has shown some insight into her wrongdoing, although that insight is limited.
6. In our view, a reprimand is required. We have had regard to, and give some weight to, her expression of regret (as we have described it above). However, it is noteworthy that the Respondent, as a legal practitioner, failed to objectively recognise the gravity and significance of the breach of an undertaking made by a legal practitioner such as herself. We think this militates against a mere caution in this matter.
7. We have also considered whether a fine, in addition to a reprimand, is required to deter the Respondent from engaging in similar conduct in the future and/or deterring legal practitioners more generally from behaving in a similar manner. The Law Society has not asked the Tribunal to impose a fine. The Respondent has adduced some evidence of difficult medical and financial circumstances, and we note her status as a disability pensioner. There is no evidence of the Respondent having any other relevant adverse disciplinary history. While not determinative, these are matters which we take into account in deciding whether to impose a fine, and if so, the quantum of the fine, to be paid. In our view, the issue of a reprimand is a sufficient deterrent to the Respondent, and to the profession generally, and we have decided that a fine is not required in the circumstances of this case.

Relevant legal principles

1. Clause 23(1) of Sch 5 to the NCAT Act provides that, despite s 60 of the Act, the Tribunal must make orders requiring a respondent lawyer whom it has found to have engaged in unsatisfactory professional conduct or professional misconduct to pay the costs of the complainant, in this instance the Law Society, unless the Tribunal is satisfied that "exceptional circumstances" exist. Section 303 of Uniform also applies; s 303(1) provides that the designated tribunal must make orders requiring a lawyer whom it has found guilty of unsatisfactory professional conduct or professional misconduct to pay costs (including costs of the designated local regulatory authority and the complainant), unless the designated tribunal is satisfied that exceptional circumstances exist. The predecessor provision to both cl 23(1) of Sch 5 to the NCAT Act and s 303(1) of the Uniform Law was s 566(1) of the Legal Profession Act 2004 (NSW) (LPA) (now repealed).
2. The Tribunal has previously considered the phrase "exceptional circumstances" for the purposes of cl 23 of Sch 5 to the NCAT Act and s 566 of the LPA. In Council of the New South Wales Bar Association v BRJ (No 2) [2015] NSWCATOD 140, the Tribunal said, in relation to the former s 566, the term "exceptional circumstances" is "all-encompassing", and we agree with the statement of the Tribunal at [22] that, without attempting to provide a meaning of "exceptional circumstances": "… a circumstance is exceptional where it is one which is such as to form an exception, which is out of the ordinary course, or unusual, or special or uncommon. It need not be unique or unprecedented or very rare, but it cannot be one that is regularly, or routinely, or normally encountered in cases heard in the Tribunal in which findings of unsatisfactory professional conduct or professional conduct are made."

Consideration - costs

1. We earlier referred to the parties' submissions. We first address below the bases on which the Respondent argues that "exceptional circumstances" exist in relation to the disciplinary proceedings. We will deal separately with costs in relation to the jurisdictional question.

Conduct of Law Society

1. The Respondent submits that the conduct of the Law Society was vexatious, having regard to the Respondent's status as a disability pensioner who was not, and is not, practising law. She argues in her written submissions that the Law Society "unreasonably" refused to come to an amicable resolution for several years, although it is not clear from those submissions what she means by "amicable resolution". If the Respondent's expectation was that the Law Society should have ceased investigatory or disciplinary action against her, then this fails to appreciate the Law Society's regulatory role and responsibilities under the Uniform Law, and the seriousness of conduct of a legal practitioner which involves both a breach of a practising certificate condition and breach of an undertaking to the Law Society.
2. The Respondent claims that the Law Society acted improperly when a monitoring officer raised the possibility with the Respondent that the Law Society might cease action against her if she were to give an undertaking not to practise law in the future. The Respondent says that the proffer of this undertaking was "unconscionable" and "a blatant breach of [her] right to pursue law in the future" and this should be considered in determining costs. It suffices for present purposes to state that we do not agree with the Respondent's submission that it was improper for the Law Society to raise such a possibility with her.
3. In her most recent written submissions received by the Tribunal on 30 August 2021, the Respondent says she continues to be in a situation of hardship, unemployed and without income (apart from a small disability pension from 2010). She reiterates the substance of her earlier submissions on costs (made prior to the stage one hearing), and submits that she is unfairly disadvantaged by what she considers "an extremely unreasonable and vexatious case" conducted by the Law Society. It is sufficient to say that we do not consider that there is, or has been, unreasonable or vexatious conduct on the part of the Law Society relevant to the issues for determination.
4. The Respondent also says that she has been unnecessarily disadvantaged by the length of time the proceedings have taken. While it is not entirely clear from her submissions, we understand her to mean the time that has elapsed since the Law Society began investigatory action under the Uniform Law. In the stage one decision, we commented on some delays on the part of the Law Society in taking action against the Respondent in relation to her failure to comply with the practising certificate condition and the breach of her undertaking to the Law Society, and we said that at least some of that delay was unexplained. However, we considered that there was no breach of any statutory time limits by the Law Society for the investigation and prosecution of the complaints against the Respondent. We do not accept the Respondent's submissions to the effect that the Law Society's conduct by reason of delay amounts to unreasonable conduct such as to constitute "exceptional circumstances" for the purposes of cl 23(1) of Sch 5 to the NCAT Act and s 303(1) of the Uniform Law.

Personal circumstances/hardship

1. While the parties did not specifically refer the Tribunal to any case law, we note that the Tribunal (and predecessor tribunals) have previously dealt with what constitutes "exceptional circumstances" in relation to respondent lawyers experiencing financial or personal difficulties, for the purposes of cl 23 of Sch 5 to the NCAT Act and s 566 of the former LPA. In Council of the New South Wales Bar Association v Miller (No 2) [2012] NSWADT 129 at [44], the former Administrative Decisions Tribunal (ADT) determined that "not even bankruptcy alone will constitute exceptional circumstances" for the purposes of s 566 of the LPA: see also Council of the Law Society of New South Wales v Haseldine (No 2) [2018] NSWCATOD 41 at [84]. However, "relatively poor" financial circumstances have been considered in tandem with other contributing factors, such as whether the proceedings were longer than necessary: Council of the Law Society of New South Wales v Webb (No 2) [2012] NSWADT 233.
2. In Council of the Law Society of New South Wales v Hinde [2011] NSWADT 20, the ADT found the respondent lawyer guilty of professional misconduct but he was not ordered to pay the Law Society's costs on the basis that his poor financial circumstances and advanced age (at age 82) constituted "exceptional circumstances". The ADT summarised its reasons as follows, at [32] - [33]: "The features of this case that support a finding of 'exceptional circumstances' are… the advanced age of the Respondent and his straitened financial situation. The relevant aspects of his financial situation are these: (a) he has a very small regular income, taking the form of a state pension; (b) he has no assets of significant value; (c) due in particular to his age, he has no significant prospect of obtaining gainful employment; and (d) any costs order against him could only be satisfied by small instalment payments commencing on a future date and lasting over a significant period of time. In the context of disciplinary proceedings such as these, we are satisfied that these constitute 'exceptional circumstances'. They fall within the phrase 'out of the ordinary course, or unusual, or special, or uncommon', used in R v Kelly (Edward) [2000] QB 198 at 208 and adopted by the Queensland Legal Practice Tribunal in Legal Services Commissioner v Scott (No 2) [2009] QLPT 9 at [19]. The hearing of disciplinary proceedings against a legal practitioner who is both as far past the normal age of retirement and as impoverished as the Respondent is indeed a most unusual phenomenon."
3. A comparable level of impoverishment was found to exist in Council of the Law Society of New South Wales v Gallego (No 2) [2015] NSWCATOD 10 (Gallego (No 2)). The respondent lawyer submitted that exceptional circumstances applied because: "(a) the solicitor was impecunious; (b) he lacked any capacity to pay costs; (c) he was in an age group where re-instatement in employment is difficult; (d) in the two matters (described in the Law Society's application) where his representation of clients had been called into question, costs had been awarded against him personally; (e) he had serious physical and psychological disabilities; and (f) a lengthy hearing had not been required in this case": at [49]. The Tribunal accepted these submissions to the extent of providing partial liability for costs, and ordered the respondent to pay $2,000 to the Law Society on account of costs: at [52], [54]). The Tribunal took into account the following matters at [53]: "The degree to which the Solicitor is impoverished is comparable to that of the respondent in Hinde. His prospects of re-employment, at least in the immediate term, are low and that they might be reduced by being ordered to make a significant payment on account of costs. He raised relatively little opposition to the case brought by the Law Society, though the opposition that he did raise inevitably contributed to the scale of the costs incurred by the Society."
4. In Law Society of NSW v Markovski [2009] NSWADT 92 at [28] the ADT said it was not minded to make an order under s 566(1) of the LPA that the respondent lawyer, aged 59 years, pay the costs of the Law Society: "…not because the Law Society is not so entitled but rather because, if this Respondent, at her age, is to re-enter the ranks of practising solicitors and make a fist of her employment she needs to have the opportunity to somehow dig herself out of the personal and financial hole in which she now finds herself and a costs order would only serve to dig a deeper financial hole from which she would be unlikely to ever emerge."
5. In Council of the Law Society of New South Wales v Ginges [2016] at [62] NSWCATOD 7 and Council of the Law Society of New South Wales v Greenstein [2015] NSWCATOD 122 at [55], the Tribunal found that the circumstances in these cases differed from the Hinde and Webb cases because the practitioners in question had either not filed any evidence supporting a finding of exceptional circumstances, or there was no, or insufficient, evidence supporting the claim of difficult financial circumstances.
6. We referred earlier to evidence from the Respondent as to her personal, financial and medical circumstances, including her status as a disability pensioner. We had regard to this evidence in the stage one proceedings when determining whether it was "impossible" for her to comply with the undertaking she gave to undertake a practice management course. At [119] of the stage one decision, we concluded that the medical evidence did not demonstrate that she was too ill to attend suitable practice management courses in the period September 2015 to June 2017, nor for a later period. We also considered that there was insufficient evidence that her financial difficulties were of sufficient magnitude to preclude enrolment in a course in that same period.
7. In her written submissions received by the Tribunal on 30 August 2021, the Respondent reiterates the substance of her earlier costs submissions, and submits that she should not have to bear the Law Society's costs on the grounds of hardship (including her financial, medical and emotional hardship and suffering). In considering whether "exceptional circumstances" exist for the purposes of cl 23(1) of Sch 5 to the NCAT Act and s 303(1) of the Uniform Law, and whether the Respondent should be relieved, in whole or in part, of the liability to pay the Law Society's costs in respect of the disciplinary proceedings, we have had regard to the same evidence the Respondent relied on in stage one considerations.
8. We take into account her status as a disability pensioner, and that she suffers from some medical issues, although it is not clear from the evidence the extent to which her medical issues affect her ability to engage in remunerated work (whether as a legal practitioner or otherwise). We do not have evidence before us as to whether the Respondent's prospects of employment generally are reduced (or substantially reduced) by being ordered to pay the Law Society's costs.
9. We also take into account that the Respondent receives only limited regular income, at the current time, although there is no evidence before us about the assets she owns, and whether she would face significant difficulties in paying the Law Society's costs. We also note the Law Society's statement that it would be open to negotiation with the Respondent as to reduced costs or a repayment plan.
10. We are not satisfied that there exist exceptional circumstances, on the basis of the Respondent's financial, medical or other personal circumstances, such as to provide a basis on which the Respondent should be relieved of liability to pay the Law Society's costs, whether in whole or in part, with respect to the disciplinary proceedings.
11. We also observe that, in contrast to the position of the respondent lawyer in Gallego (No 2), who raised little opposition to the Law Society's case, the Respondent contested most of the issues falling for determination in this matter, including by arguing that she was not a solicitor or a legal practitioner under the Uniform Law; the undertaking she gave did not apply on its terms to her circumstances; that the undertaking was "impossible" to perform and therefore not applicable; that the practising certificate condition was not authorised by the Uniform Law; and that the Law Society acted unreasonably and vexatiously in bringing disciplinary proceedings to the Tribunal. The Respondent made no admissions prior to the hearing. While entitled to contest every issue, the way in which she ran her case necessitated the Law Society responding to her submissions on each of the contested issues, and incurring costs accordingly. It cannot be said that the Law Society lengthened the proceedings, or incurred costs unnecessarily, in responding to the Respondent's arguments.

Novel or 'out of the ordinary' points of law

1. The Respondent submits that the legal issues in the disciplinary proceedings involve out of the ordinary/complex and novel points of law. In contrast, the Law Society says the complaints before the Tribunal and points of law regarding the provision of undertakings have previously been considered by the Tribunal on many occasions, and did not involve "out of the ordinary" or complex and novel points of law.
2. In terms of the legal and factual issues that fell for determination in stage one of the disciplinary proceedings, they can be broadly described as follows: (i) the application of the Uniform Law, the proper interpretation to be given to the undertaking in question, and whether there was a breach of the undertaking, and breach of a practising certificate condition; and (ii) the relevance of the Court of Appeal's decision in Carr v Council of the Law Society of New South Wales [2020] NSWCA 276 (Carr), published after the timeline for exchange of written submissions and evidence had passed.
3. As to (i), we do not wholly agree with the Law Society's submission that the present complaints and points of law regarding the provision of undertakings have been considered by the Tribunal on many occasions. We indicated in the stage one decision that the factual circumstances in this matter were unusual, by reason that the Respondent had not practised law at any stage while holding the relevant practising certificate, and the cases to which the Law Society referred were not entirely analogous. However, the legal principles applying to solicitor undertakings and to practising condition breaches under the Uniform Law are well settled, and we do not think the application of these principles to the somewhat unusual facts in this matter can be described as particularly complex, novel or "out of the ordinary".
4. As to (ii), in the stage one proceedings we considered whether it was "impossible" for the Respondent to comply with the undertaking due to her personal circumstances, in light of the Court of Appeal's decision in Carr: see stage one decision at [74]-[79];[116]-[123]. After the Court of Appeal's decision was published, the parties were given the opportunity to lodge submissions on the effect, if any, of Carr on the Law Society's application in this matter. It was at this stage of the proceedings that the Respondent developed her arguments about the undertaking being one which was "impossible" to perform in the sense described in case law including Carr. The Respondent's argument that the undertaking was "impossible" for her to perform necessitated the Law Society preparing submissions in response to such argument, and incurring costs accordingly. The additional submissions made by the parties on the applicability of Carr to these proceedings did not lengthen the hearing in this matter.
5. While not an everyday occurrence, it is not unusual for the Court of Appeal or Supreme Court to decide cases which constitute binding authority or otherwise provide guidance to the Tribunal in carrying out its role of determining disciplinary applications before it in respect of legal practitioners under the Uniform Law. We do not consider that the legal issues arising from the Court of Appeal's decision in Carr, at least in the application of those legal issues to the present matter involving the Respondent, were "out of the ordinary", novel or of such complexity, as to warrant a determination that "exceptional circumstances" exist for the purposes of cl 23(1) of Sch 5 to the NCAT Act and s 303(1) of the Uniform Law.
6. Accordingly, we are not satisfied that "exceptional circumstances" arise because of the complexity or novel nature of the legal or factual issues described above, such that the Respondent should be relieved of costs liability under cl 23(1) of Sch 5 to the NCAT Act and s 303(1) of the Uniform Law.

Jurisdictional question

1. As earlier noted, a hearing was held on 23 April 2021 concerning the Tribunal's jurisdiction under s 50(2) of the NCAT Act. The context in which the issue was raised by the Tribunal is described in the stage one decision: at [29]-[34].
2. In brief, at a directions hearing in this matter on 21 August 2020, an order was purportedly made under s 50(2) of the NCAT Act, with the consent of the parties, for the disciplinary proceedings to be determined "on the papers", without a hearing. The jurisdictional question later identified by the Tribunal - essentially whether s 50(2) of the NCAT Act is capable of operation in light of s 138 of the Legal Professional Uniform Law Application Act 2014 (NSW) (Application Act) and other relevant statutory provisions in the governing legislative scheme - required consideration in this matter, and involved a significant jurisdictional question which had not been previously raised nor decided. The question canvassed in submissions and discussed in the Tribunal's stage one decision (see [35]-[50]) is an issue which potentially had implications for both this matter and some other disciplinary applications before the Tribunal.
3. The Respondent took no position on the jurisdictional question at the hearing on 23 April 2021. The Law Society's position was that the Tribunal did have jurisdiction to determine stage one issues for determination "on the papers" under s 50(2) of the NCAT Act, notwithstanding s 138 of the Application Act. However, as the jurisdictional question was not ultimately decided, we agree that the Law Society did not lose its case on the jurisdictional question, or as the Law Society put the proposition (in its costs submissions), no party was successful on the jurisdictional point.
4. The Law Society refers to Health Care Complaints Commission v Philipiah [2013] NSWCA 342 (Philipiah) in which the Court of Appeal considered the Tribunal's exercise of the costs discretion in the context of health practitioner disciplinary proceedings. When exercising the discretion over costs, Emmett JA, with Meagher JA and Beech-Jones J agreeing, said at [44] that it is important to bear in mind that "costs are intended to compensate a successful party". His Honour further stated at [45] that: "The normal price to be paid for a practitioner's disputing a complaint and losing is that, unless some disentitling conduct be established on the part of the Commission, the practitioner there should bear the Commission's costs, not by way of penalty, but to compensate the Commission for the costs it has incurred in prosecuting the proceedings in the public interest, over the opposition of the practitioner."
5. We accept the Law Society's submissions on costs as to the jurisdictional question, which is essentially that no party was successful on the point and, accordingly, the parties should bear own costs of and incidental to the hearing on 23 April 2021 concerning the Tribunal's jurisdiction under s 50(2) of the NCAT Act. The principles expressed at [44]-[45] of Philipiah in relation to the exercise of the costs discretion in occupational disciplinary proceedings are relevant. There is no operative principle that the Law Society should have its costs on a jurisdictional issue on which it was not successful, notwithstanding that the Law Society successfully prosecuted the disciplinary application brought against the Respondent for a protective purpose.
6. To the extent necessary, we also observe that the jurisdictional question is not an issue that regularly, routinely or usually arises in Tribunal decisions in which professional misconduct is alleged. We earlier cited with approval a previous Tribunal decision which indicated that "exceptional circumstances" need not be unique or unprecedented, but do not include a circumstance that is routinely encountered in Tribunal proceedings in which professional misconduct is alleged.
7. We consider that "exceptional circumstances" exist for the purposes of cl 23(1) of Sch 5 to the NCAT Act, and s 303(1) of the Uniform Law, in relation to the jurisdictional question, and we consider it appropriate that the parties bears their own costs in relation to that part of the proceedings.

Orders

1. We make the following orders: 1. A hearing in relation to appropriate disciplinary orders and costs is dispensed with, under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. The Respondent is reprimanded. 3. The Respondent is to pay the Applicant's costs of the proceedings as agreed or assessed, excluding the Applicant's costs of and incidental to the hearing on 23 April 2021 concerning the Tribunal's jurisdiction under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 01 September 2021