Council of the Law Society of New South Wales v Judah

The Applicant's Submissions

1. The provisions of the Legal Profession Uniform Law (NSW) (Uniform Law) regulate the manner in which the applicant may commence disciplinary proceedings. The Legal Services Commissioner of New South Wales (the Commissioner) is the designated local regulatory authority for the purposes of Chapter 5 of the Uniform Law. The Commissioner may delegate any of his or her functions under Chapter 5 to the applicant and the Commissioner has done so by an instrument of delegation dated 18 June 2015. An essential precondition to the initiation of disciplinary proceedings is the making of a complaint under the Uniform Law. The relevant provisions were the subject of analysis in the DXW case and the applicant brings this application for dismissal of the proceedings relying upon the principles set out in that case.
2. Here, the processes undertaken by the applicant by which the applicant made the complaint against the respondent were, in substance, the same as those processes described in DXW. The consequences of those processes are that no complaint was made against the respondent in accordance with the Uniform Law. Consequently, the Tribunal does not have jurisdiction to determine the application. The application should be dismissed for want of jurisdiction.
3. Counsel for the respondent did not express a contrary view.

Costs

1. Counsel for the respondent submitted that in the event that the Tribunal dismissed the applicant for want of jurisdiction, the Tribunal ought to make an order that the respondent's costs be paid by the applicant. Counsel submitted that the relevant power reposed in the Tribunal in the circumstances of this matter lies in s 60 of the Civil and Administrative Tribunal Act 2013 (NCAT Act). Section 60 is in the following terms: 60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant. (4) If costs are to be awarded by the Tribunal, the Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (5) In this section: costs includes: (a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.
2. The respondent submitted that the Tribunal ought to find that there are special circumstances in this case warranting an award of costs and that the Tribunal has power to do so having regard to the provisions of s 60(3). In particular, the respondent relied upon subsections (3)(c), (e) and (g).
3. In other words, the respondent submitted that the application had no tenable basis in fact or law, was misconceived and the fact that the Tribunal had no jurisdiction constitutes "special circumstances within the meaning of s 60(2)".
4. The respondent relied upon the decision in Gaynor v Burns [2015] NSWCATAP 150 and Cripps v G & M Dawson [2006] NSWCA 81. The respondent submitted that special circumstances existed in this case and that the Tribunal ought to exercise its discretion by making an award for costs. In support of that submission, the respondent also relied upon the decision in Oshlack v Richmond River Council (1998) 193 CLR 72 at [25] where the Court held that the award of costs to a successful party in civil litigation is not made to punish the unsuccessful party but to compensate the successful party against the expense to which that party has been put by reason of the legal proceedings. The Court added that the motivation of the unsuccessful claimant, not being one of personal interest, gain or affectation, but the public interest was an irrelevant factor.

Applicant's Submissions on Costs

1. The applicant agreed that the Tribunal's consideration of the respondent's costs application is to be made having regard to the provisions of s 60 of the NCAT Act. The applicant submitted that even if there were considered to be special circumstances; the Tribunal still has a discretion as to whether to award costs. In this case, the applicant moved expeditiously in bringing these proceedings to an end as soon as it became aware of the consequences of the decision in the DXW case (which was published in late June 2019).
2. The applicant also submitted that to the extent that the respondent might seek to claim compensation for work done in preparing the case himself, the Chorley exception does not apply. That was a reference to the decision in London Scottish Benefit Society v Chorley (1884) 13 QBD 872 which stated that a solicitor acting for him or herself may claim compensation for the work done by them. However, the applicant submitted that the principle in that case has been held not to apply to solicitors who do not hold a practising certificate (see Lloyd v Hill [2004] NSWSC 652). In this case, the respondent has not held a practising certificate since May 2017 and the great bulk of work associated with this application post-dated May 2017. The applicant also submitted that the respondent had not provided evidence of having expended any money in engaging legal representation.

Decision

1. We are of the opinion, based upon the evidence submitted by the applicant and the applicant's submissions, that the complaint against the respondent has not been lawfully made in accordance with the provisions of the Uniform Law. Accordingly, the Tribunal does not have jurisdiction to determine the application and there is no complaint to found these proceedings. The consequence is that the application must be dismissed.
2. We are also of the opinion that, for the reasons given in the respondent's submissions, an order should be made for the respondent's costs to be paid by the applicant. In particular, it is our view that: 1. The application has in the circumstances no tenable basis in fact or law, is misconceived and the fact that the applicant commenced proceedings otherwise than in conformity with the provisions of the Uniform Law constitutes a matter which is relevant to the determination of this costs application; and 2. In our view, the circumstances described above constitute special circumstances in that they are out of the ordinary. Furthermore, we find that these special circumstances warrant an award of costs because the respondent has been put to expense by reason of the bringing of the application. The applicant referred to the fact that the Chorley principle may not apply in the case of this respondent and that there was no evidence that the respondent had in fact incurred any expense. These are matters that would normally be the subject of determination by the costs assessor and it would not be appropriate for this Tribunal to make any finding which would intrude into the assessment to be made by the costs assessor.

Orders

1. The Tribunal makes the following orders: 1. The application for disciplinary findings is dismissed; and 2. The applicant is to pay the respondent's costs as agreed or assessed.

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: 04 September 2019