Council of the New South Wales Bar Association v Berwick

reasons for decision

1. On 2 April 2015, the Council of the New South Wales Bar Association (the Council) filed in the Tribunal an application (the application) for disciplinary findings and orders. The application sought orders against John Patrick Berwick (the barrister) and those orders included the following: Orders pursuant to s573 of the Legal Profession Act 2004 (NSW) that the Respondent: (a) repay to Mr Fahmid Rahman the amount of $33,000 paid to the Respondent on or about 25 June 2012 and 12 July 2012; (b) pay compensation to Mr Rahman in the sum of $26,942.50 being legal fees paid or payable by Mr Rahman to legal practitioners acting on his behalf in relation to an Application in the Case filed by the Commonwealth of Australia (as represented by the Australian Taxation Office) in Federal Magistrates Court Proceedings SYG 842/2011 on 27 July 2012; and (c) pay compensation to Mr Rahman in the sum equivalent to the amount payable by Mr Rahman to the Commonwealth of Australia (as represented by the Australian Taxation Office) pursuant to interlocutory orders made by the Federal Circuit Court of Australia in Proceedings SYG 842/2011 on 12 July 2013 ([2013] FCCA 388).
2. On 6 May 2016 an instrument of consent made pursuant to s 564 of the Legal Profession Act 2004 (NSW) (the Act), signed by the solicitor for each of the Council and the barrister and signed by the Legal Services Commissioner, was filed in the Tribunal.
3. Paragraph 3 of the instrument summarised the grounds of the application. The summary was to the following effect so far as Grounds A, B and C were concerned: (1) Ground A: the barrister's receipt of two payments of trust money from Mr Rahman in June and July 2012 in contravention of s 252 of the Act, before completing the work for which the moneys had been paid in advance without issuing a bill. (2) Ground B: the barrister's failure to advise in relation to deficiencies in the statement of claim filed in the proceedings before he was briefed to appear for Mr Rahman and his failure to rectify those deficiencies in an amended statement of claim drafted by him. (3) Ground C: the barrister's failure to undertake the work necessary for the hearing of an application filed by the ATO for summary dismissal of the proceedings and his failure to appear at the hearing of the application.
4. The instrument sought consent orders and findings as follows: 1. A finding that the barrister engaged in professional misconduct by his conduct set out in pars 42 and 81 of the instrument. 2. A finding that the barrister engaged in unsatisfactory professional conduct by his conduct set out in par 82 of the instrument. 3. An order pursuant to s562 (2) (e) of the Act that the barrister be publicly reprimanded. 4. An order that the barrister pay the Council's costs of the proceedings including costs of the hearing before the Tribunal, agreed in the sum of $70,000 inclusive of all costs, disbursements and counsel's fees.
5. The Tribunal was asked to note the barrister's undertaking to the Tribunal, the Legal Services Commissioner and the Council that he would not apply for a practising certificate as a barrister or as a solicitor in any jurisdiction at any time in the future.
6. Paragraph 42 of the instrument of consent stated as agreed facts: By accepting the First and Second Payments, each of which was trust money within the meaning of Part 3.1 of the Act and which together comprised payment in advance of the hearing of the whole amount of the Respondent's capped fee referred to in paragraph 18 above, and receiving those trust moneys (as referred to in paragraphs 20 - 22 and 29 - 31 above) before completing the work for which the trust moneys were paid and before issuing any bill, the Respondent engaged in professional misconduct within the meaning of s 497 of the Act.
7. The reference to "the First and Second Payments" is a reference to 2 payments totalling $33,000 paid by Mr Rahman to the barrister for fees charged by the barrister. The payment of those fees is referred to in more detail in par 18 below.
8. Paragraph 81 of the instrument of consent stated as agreed facts: As stated in paragraph 42 above, the Respondent engaged in professional misconduct within the meaning of s 497 of the Act by accepting the First and Second Payments, each of which was trust money within the meaning of Part 3.1 of the Act and which together comprised payment in advance of the hearing of the whole amount of the Respondent's capped estimate referred to in paragraph 18 above, and receiving and depositing those trust moneys in the Mortgage Account as referred to in paragraphs 20 - 22 and 29 - 31 above, before completing the work for which the trust moneys were paid and before issuing any bill (Ground A).
9. Paragraph 82 of the instrument of consent stated as agreed facts: Further to paragraphs 42 and 81 above, the Respondent engaged in unsatisfactory professional conduct within the meaning of s 496 of the Act by: (a)failing to advise Mr Rahman of and/or rectify deficiencies in the pleadings (Ground B); (b)when the ATO filed the Summary Dismissal Application: (i) not making himself available to attend conferences for the purpose of drafting or settling Mr Rahman's evidence in relation to the application (Ground C), (ii) failing to provide supplementary submissions in response to the application (Ground C); and (iii) failing to appear at the hearing of the application (Ground C); (c)delay in paying the ATO's costs that he was ordered to pay personally as a result of his failure to appear on 3 December 2012 until approximately four months after those costs were assessed (Ground D); (d)delay in providing the itemised bill requested on 10 December 2012 until 24 January 2013, notwithstanding that he had received the First and Second Payments in June and July 2012 and despite numerous requests for an itemised bill (Ground E); (e)claiming in the itemised bill an entitlement to be paid $33,000 (including GST) on the basis of time-based charging in circumstances where the barrister had no record of work performed (Ground F); and (f)claiming in the itemised bill an entitlement to be paid for 44.75 hours for work allegedly performed on 18 June 2012 (Ground F).
10. On 23 June 2016 the Tribunal made the following findings and orders: Conditional upon the respondent signing an undertaking in writing, witnessed by his solicitor and filed in the Tribunal within 21 days of the publication of these orders, that he will not apply for a practising certificate as a barrister or as a solicitor in any jurisdiction at any time in the future, the Tribunal makes the following findings and orders: (1) The Tribunal finds that the respondent engaged in professional misconduct by his conduct set out in pars 42 and 81 of the Instrument of Consent. (2) The Tribunal finds that the respondent engaged in unsatisfactory professional conduct by his conduct set out in par 82 of the Instrument of Consent. (3) Pursuant to s 562 (2) (e) of the Legal Profession Act 2004, the Tribunal orders that the respondent be publicly reprimanded. (4) The respondent pay the applicant's costs of the proceedings, including costs of the hearing before the Tribunal, agreed in the sum of $70,000 inclusive of all costs, disbursements and counsel's fees.
11. Those findings and orders and the reasons for them were published in Council of the New South Wales Bar Association v Berwick [2016] NSWCATOD 81.
12. Paragraph 2 of the instrument of consent stated: The Application arises out of a complaint made by Mr Seyfi Atila, solicitor, on behalf of his client Mr Fahmid Rahman, on 12 June 2013. The Respondent was briefed by Mr Atila to advise and appear for Mr Rahman in proceeding no. SYG842/2011 in the Federal Magistrates Court of Australia (as that Court was then known) (the Court) alleging contraventions of the Fair Work Act 2009 (Cth) ('FW Act') by Mr Rahman's employer the Australian Taxation Office (ATO) (the Proceedings).
13. That "Application" was the application referred to in par 1 above.
14. Paragraph 4 of the instrument of consent stated: No resolution has been reached between the Respondent and Mr Rahman regarding his claim for compensation pursuant to sections 570 to 573 of the Act. As such, the Legal Services Commissioner, the Applicant and the Respondent have agreed to dispose of the proceedings, with the exception of Mr Rahman's claim for compensation pursuant to ss 570 to 573 of the Act, on the terms set out in this instrument.
15. On 12 June 2013 Mr Sayfi Atila, solicitor wrote to the NSW Bar Association making a complaint on behalf of Mr Rahman, against the barrister. This letter comprised 54 paragraphs and concluded as follows: Brief to Chris Ronalds SC 43. After Dr Berwick was debriefed, Ms Chris Ronalds SC (Ms Ronalds) was briefed for the matter. Ms Ronalds drafted and settled a Further Amended Statement of Claim (FASoC), engaged in discussions with the Respondent and attended the hearing on 26 February 2013. Attached and marked as Annexure X is a copy of the FASoC. We submit that the difference in the quality of the work between the Amended Statement of Claim settled by Dr Berwick and the FASoc is abundantly clear. Amongst other things, the FASoC addresses each of the elements required to make an adverse action claim under the FWA and properly particularises the matters which constitute adverse action. 44. Further, in written submissions provided to the Court on 26 February 2013, Ms Ronalds makes submissions to the effect that the Amended Statement of Claim drafted by Dr Berwick was poor or failed in some way. Attached and marked as Annexure Y is a copy of these submissions. Ms Ronalds makes this submission at paragraph 31. Brief to Tony Rogers 45. Ms Ronalds ceased acting in the matter after the hearing on 26 February 2013. I also ceased acting shortly after this hearing date. 46. Mr Tony Rogers (Mr Rogers) was then briefed in relation to this matter by Mr Rahman's new solicitor. After the involvement of Mr Rogers the Respondent decided to withdraw their Strike Out Application. Court documents and the date this occurred can be provided to you if required, they are currently not in my possession. 47. However, the Respondent is seeking their costs in relation to the Strike Out Application. The Respond (sic) is seeking costs of $39,240.85. I am advised that the matter will be heard by the Court at a hearing or decided on based on documents available. Costs incurred by Mr Rahman 48. We submit that the acts and omissions of Dr Berwick in relation to this matter generally and more particularly his lack of exercise of due care and diligence in relation to reviewing and advising on the Statement of Claim and drafting and settling the Amended Statement of Claim has resulted in Mr Rahman incurring costs that he would otherwise not have had but for the acts and omissions of Dr Berwick. These unnecessary costs currently relate to the Strike Out Application. However, they may go beyond this depending on the final outcome of the matter and the extent to which Dr Berwick's act (sic) and omissions have contributed to the final outcome. 49. Mr Rahman has incurred the following costs unnecessarily: (a) Dr Berwick's fees - $33,000. (b) My fees relating to the Strike Out Application proceedings - $6,912.50. (c) Fees of Ms Ronalds (relate solely to the Strike Out Application) - $13,200. (d) Fees of Mr Rogers (relating to Strike out Application) - $5,830. (e) Fees of Robert Christie (Mr Rahman's new solicitor) relating to the Strike Out Application - $1,000. (f) Plus the ongoing costs of all the parties above in relation to the Strike Out Application. 50. In addition to the amounts in the above paragraph the Respondent is seeking its costs in relation to the Strike Out Application. Outcome Sought 51. We submit that Dr Berwick should refund the amount of $33,000 to Mr Rahman. This is on the basis that the quality of work provided by Dr Berwick was of such low quality that no fees can be properly charged for the work. 52. We submit that Dr Berwick should pay the additional costs incurred by Mr Rahman, as set out above, on the basis that Mr Rahman would not have incurred these costs had Dr Berwick exercised the requisite care and diligence in the provision of the services. 53. For the same reasons, we submit that Dr Berwick should also be held responsible for the costs of the Respondent, if the Court orders that such costs are payable. 54. We submit that disciplinary proceedings be brought against Dr Berwick, not only for the quality of the work performed but also in relation to Dr Berwick demanding that his fees be paid prior to completing the work and acting in a way which is dishonest or may be perceived as dishonest in relation to his non-attendance at the hearing on 3 December 2012. ... This letter became exhibit 3 in the compensation hearing.
16. It is our understanding that the references to "the Respondent" in pars 50 and 53 of the letter are references to the Commonwealth of Australia in the proceedings referred to in par 1 above and published with the case citation of [2013] FCCA 388.
17. On 8 November 2016 MIC Lawyers, on behalf of Mr Rahman filed with the Tribunal a general application form seeking 15 orders. The first of those orders sought was an order pursuant to s 571 (2) (a) of the Act that the barrister repay to Mr Rahman all moneys charged by the barrister to Mr Rahman in respect of any and all legal services provided by the barrister to Mr Rahman.
18. Each of the other 14 orders sought an order pursuant to s 571 (2) (c) of the Act that the barrister pay to Mr Rahman compensation in respect of any and all loss suffered by Mr Rahman by reason of 14 different claims which were set out in the general application form.

Background to Mr Rahman's complaint

1. Paragraphs 7 - 42 of the Instrument of consent set out an agreed statement of facts for Ground A. For present purposes those facts can be summarised as follows: 1. On 2 May 2011, Mr Rahman commenced proceedings in the Federal Magistrates Court of Australia and on 1 August 2011 filed a statement of claim in those proceedings. In or about May 2012 Mr Atila took over the conduct of the proceedings as solicitor for Mr Rahman. In or about May 2012 he briefed the barrister to appear for Mr Rahman at the hearing of the proceedings, which was then listed for four days commencing on 17 July 2012, and to advise on matters relevant to protecting Mr Rahman's interests. The barrister's brief was terminated on or about 10 December 2012. 2. On 18 June 2012, the barrister sent Mr Atila an offer to make a costs agreement. That document set out the barrister's estimate of the likely amount of legal fees and costs to be charged by him for work relating to proceedings as $70,000 (plus GST). The document included an offer by the barrister to reduce his estimate to $30,000 (plus GST) if that amount were paid to the barrister one week before the first day of the hearing. The costs document included other provisions one of which was that any bill for work performed must set out the work done and the fee charges. 3. Paragraph 18 stated: "on or about 18 June 2012, the barrister told Mr Rahman and Mr Atila that he would not charge more than his reduced estimate so that his fees were capped at $30,000 (plus GST) if that amount were paid one week before the first day of the hearing." 4. Mr Atila accepted the barrister's offer to enter into a costs agreement contained in the costs document by continuing to instruct the barrister in the proceedings after 18 June 2012. 5. Paragraph 20 stated: "On or about 25 June 2012 Mr Rahman paid the barrister $25,000 (the First Payment)." 6. Paragraph 29 stated: "On or about 12 July 2012, Mr Rahman paid the barrister $8,000 (the Second Payment)."
2. Paragraphs 47 - 59 of the instrument of consent set out an agreed statement of facts for Ground B. For present purposes those facts can be summarised as follows: 1. The statement of claim filed in the proceedings pleaded that Mr Rahman's employer, the Australian Taxation Office (ATO), had breached: 1. The express or implied terms of the employment contract; 2. Its duty of care; and 3. Ss 340, 341, 342, 345 and 351 of the Fair Work Act 2009 (Cth) (the FW Act). 1. The statement of claim was not drafted by the barrister. 2. The FW Act commenced on 1 July 2009. Paragraphs 50 and 51 set out relevant parts of sections of the FW Act. 3. Paragraph 52 stated that the statement of claim was deficient in that: (a) it did not plead any "workplace right" of Mr Rahman within the meaning of s 341 of the FW Act; (b) it did not plead any "adverse action" within the meaning of s 342 of the FW Act allegedly taken by the ATO against Mr Rahman because Mr Rahman had a workplace right, had or had not exercised a workplace right or proposed to exercise or proposed not to exercise a workplace right; and (c) it did not plead any "adverse action" within the meaning of s 342 of the FW Act allegedly taken by the ATO against Mr Rahman on any one or more of the grounds referred to in s 351 of the FW Act. 1. By reasons of those deficiencies, the statement of claim did not disclose a reasonably arguable cause of action for contravention of the FW Act. 2. The scope of the barrister's brief included advising on matters relevant to protecting Mr Rahman's interests. 3. On 18 July 2012, an amended statement of claim drafted by the barrister in consultation with, and on instructions from Mr Atila, was filed in the proceedings. 4. The amended statement of claim relied on acts allegedly committed by the ATO prior to the commencement of the FW Act as constituting "adverse action" within the meaning of s 342 of the FW Act, but suffered from the same deficiencies as the statement of claim as referred to in par 19 (4) and (5) above and so did not disclose a reasonably arguable cause of action for the contravention of the FW Act. 5. The barrister failed to rectify the deficiencies referred to above when drafting the amended statement of claim and failed to advise Mr Rahman (or Mr Atila) of the deficiencies in the statement of claim and amended statement of claim.
3. Paragraphs 62 - 68 of the instrument of consent set out an agreed statement of facts for Ground C. For present purposes those facts can be summarised as follows: 1. On 27 July 2012, the ATO filed an Application in a Case in the proceedings seeking orders for summary dismissal of all or part of the proceedings (the Summary Dismissal Application). 2. On 1 August 2012, the barrister appeared at an interlocutory hearing in the proceedings at which the court made orders in relation to the Summary Dismissal Application which included that it be listed for hearing on 3 December 2012 at 10.15am. 3. During the period between 1 August 2012 and 8 October 2012, the barrister rescheduled conferences scheduled with Mr Atila for the purpose of drafting or settling Mr Rahman's evidence in relation to the Summary Dismissal Application, with the result that no such conference occurred prior to 8 October 2012. 4. On or about 23 November 2013 the barrister settled submissions drafted by Mr Atila on behalf of Mr Rahman in relation to the Summary Dismissal Application and undertook to Mr Atila to provide supplementary submissions in relation to the question whether a claim could be made under the FW Act in respect of the alleged conduct prior to the commencement of the FW Act (the retrospectivity issue). 5. The barrister failed to provide supplementary submissions in relation to the retrospectivity issue prior to 3 December 2012, or at all. 6. The barrister failed to appear at the hearing of the Summary Dismissal Application on 3 December 2012.

The Law

1. Part 4.9 of the Act comprises ss 570 - 575 and it deals with compensation. Relevant parts of ss 571 (1), 572 (1) and 573 (1) are in the following terms:

571 Compensation orders 1. (1) A compensation order is an order, made in respect of a complaint against an Australian legal practitioner, to compensate the aggrieved person for loss suffered because of conduct that is the subject of the complaint.

572 Prerequisites to making of compensation orders 1. Unless the complainant and the Australian legal practitioner concerned agree, a compensation order is not to be made unless the person or body making it is satisfied: 1. (a) that the aggrieved person has suffered loss because of the conduct concerned, and 2. (b) that it is in the interests of justice that the order be made.

1. 573 Making of compensation orders 1. (1) If the Tribunal has found that an Australian legal practitioner has engaged in unsatisfactory professional conduct or professional misconduct in relation to a complaint, the Tribunal may: 2. (a) make a compensation order, or 3. (b) refer the matter to the Commissioner for the making of a compensation order.
2. Section 573 (1) makes it clear it is only when the Tribunal has found that the Australian legal practitioner has engaged in unsatisfactory professional conduct or professional misconduct in relation to a complaint that the Tribunal can make a compensation order.
3. It follows that the "conduct concerned" referred to in s 572 (1) is a reference to conduct which the Tribunal has found amounts to unsatisfactory professional conduct or professional misconduct.
4. The combined operation of the sections in Part 4.9 is that if: 1. the Tribunal has found that an Australian legal practitioner has engaged in unsatisfactory professional conduct or professional misconduct in relation to a complaint, 2. the complainant has suffered loss as a result of that conduct, and 3. it is in the interests of justice to do so, the Tribunal may make a compensation order (see in particular ss 571 (1), 572 (1) and 573 (1) and Solicitors Manual - Lexis Nexis at [34,170.5]).

Submissions of Mr Rahman

1. On 19 April 2017 written submissions were made on behalf of Mr Rahman. Paragraph 13 of those submissions stated: 13. To obtain a compensation order in his favour, the complainant must show that he has actually suffered a loss resulting from the conduct of the barrister. That is, there must be a causal connection between the conduct and the loss. The critical fact for determination is whether the complainant has suffered loss because of the conduct of the legal practitioner (s 572 (1) (a)).
2. It is not clear from that paragraph what is the conduct referred to. However as we read the balance of the submissions, we conclude that the conduct relied upon is not the professional misconduct or unsatisfactory professional conduct the subject of the findings in the reasons for decision in Council of the New South Wales Bar Association v Berwick [2016] NSWCATOD 81, but other conduct. Thus in relation to the $33,000 claim, these written submissions included: 20. The Respondent should repay to the Applicant all monies charged by the Respondent to the Applicant in respect of any and all legal services provided by the Respondent to the Applicant. This amounts to $33,000.00. The services provided were of such low quality to have been rendered useless. Other counsel prepared the case after the Respondent failed to appear on 3 December 2012 at the strike out application. After that time the Complainant briefed Ms Ronalds SC and Mr Rogers of University Chambers. The work was of such low value and quality that the Respondent should not be permitted to retain any of the monies he charged Mr Rahman. ...
3. The written submissions comprise eleven pages. They make claims in respect of all sorts of matters. The following are examples of the claims: 28. The Respondent refused to come to court on 3 December 2012 because "something was due today for [another] matter". The Complainant submits the repayment of the $33,000 is appropriate to cover this claim. 30. The Respondent failed to pay costs thrown away by reason of the adjournment on 3 December 2012 which costs the Respondent was ordered to pay on an indemnity basis. The Complainant submits that the repayment of the $33,00 is appropriate to cover this claim. 31. The Respondent's failure to provide an itemised bill until 23 January 2013 despite being requested to provide such a bill. The Complainant submits that the repayment of the $33,000 is appropriate to cover this claim. 32. The Respondent's failure to respond to Mr Atila's correspondence dated 4 December 2012 and 21 December 2012. The Complainant submits that the repayment of the $33,000 is appropriate to cover this claim.
4. Nowhere in the submissions is there an attempt to link the findings of unsatisfactory professional conduct or professional misconduct made by the Tribunal on 23 June 2016 neither with the conduct described in the written submissions nor with what is relied upon as the compensable loss.
5. We are therefore of the view that we are unable to accept the basis upon which these submissions proceed and cannot accept that the submissions show any basis for concluding that the losses claimed have been suffered by Mr Rahman as a result of the unsatisfactory professional conduct or professional misconduct.

The $33,000 claim

1. The relevant question is: what is the loss suffered by Mr Rahman because the barrister accepted the first and second payments totalling the $33,000, which was trust money, which together comprised payment in advance of the hearing of the whole amount of the barrister's fee before completing the work for which the trust monies were paid and before issuing any bill.
2. In our view the answer to that question is that there was no such loss suffered by Mr Rahman.
3. In our view that conclusion is demonstrated by the following. Had the barrister properly carried out all the work he was retained to carry out, the barrister would still have engaged in professional misconduct by his acceptance of the $33,000 in the circumstances described in par 30 above. However it is abundantly clear that in that situation Mr Rahman would not have suffered a loss because of the professional misconduct.

The $35,239.97 claim

1. This is the total of the amounts which Mr Rahman claims were payable to the solicitors and barristers who were engaged by him to carry out work in relation to the strike out application and associated matters. The strike out application was the Application in the Case filed by the Commonwealth of Australia which is referred to in par 1 above (see par 82 of the Instrument of consent - see par 8 above. See also pars 43 - 54 of exhibit 3 - see par 14 above. See also pars 44 - 47 of Mr Rahman's affidavit sworn 5 May 2015 where he gave evidence of his new legal representation in the Federal Circuit Court matter and of the fees he incurred in relation to the strike out application in that court and associated matters).
2. The work carried out by the solicitors and barristers was work which should have been carried out by the barrister under his retainer with Mr Atila or it was work carried out in defending the strike out application which would have been avoided if the barrister had properly carried out his retainer.
3. Paragraph 82 of the Instrument of consent set out agreed facts that the barrister engaged in unsatisfactory professional conduct by: (a) failing to advise Mr Rahman of and\or rectify deficiencies in the pleadings (Ground B); (b) when the ATO filed the summary dismissal application: (i) not making himself available to attend conferences for the purpose of drafting or settling Mr Rahman's evidence in relation to the application (Ground C); (ii) failing to provide supplementary submissions in response to the application (Ground C); and (iii) failing to appear at the hearing of the application (Ground C).
4. Subparagraphs 19 (5) , (6), (7), (8) and (9) above are agreed facts in relation to Ground B and they detail deficiencies in the amended statement of claim drafted by the barrister and the failure by the barrister to rectify the deficiencies referred to in subparagraphs 19 (5) and (8) above.
5. Because the barrister failed to advise Mr Rahman of and/or rectify the deficiencies in the pleadings (see par 82 (a) of the Instrument of consent) it was necessary for solicitors and barristers to carry out work with the object of bringing about a situation where the summary dismissal application would be withdrawn or dismissed.
6. Counsel for the barrister has made liability and quantum submissions in relation to the claims making up the $35,239.97. We deal with those submissions below.
7. Subject to those submissions we are of the view that the costs incurred by Mr Rahman payable to these solicitors and barristers are a loss suffered by him because of the unsatisfactory professional conduct of the barrister that is the subject of the complaint.

The costs payable to Commonwealth of Australia claim

1. As mentioned in par 1 above, one of the orders sought by the Council was an order pursuant to s 573 of the Act that the barrister pay compensation to Mr Rahman in the sum equivalent to the amount payable by Mr Rahman to the Commonwealth of Australia (as represented by the Australian Taxation Office) pursuant to interlocutory orders made by the Federal Circuit Court of Australia in Proceedings SYG842/2011 on 12 July 2013 [2013] FCCA 388.
2. As noted in par 14 above Mr Atila stated in par 50 of his letter of complaint that in addition to the amounts in par 49 of his letter the Respondent (which we take Mr Atila as meaning the Commonwealth of Australia as represented by the Australian Taxation Office), was seeking its costs in relation to the strike out application.
3. In par 46 of his affidavit sworn 5 May 2015, Mr Rahman, after referring to his new legal representation, said: "Thereafter, the ATO decided to withdraw their Strike Out Application but they sought payment of costs of $39,240.85. The ATO received a costs order which costs have not yet been paid."
4. In the written submissions made on behalf of the barrister dated 21 March 2017 this claim for compensation is dealt with. It was there submitted that the complainant had adduced no evidence of this alleged liability beyond par 46 of Mr Rahman's affidavit of 6 May 2015. It was also submitted that whilst the ATO may have sought payment in some amount (which may or may not have later been the subject of negotiation), there was no evidence at all as to any crystallised liability to the ATO, or of any payment made by the complainant to the ATO, which has resulted in loss to the complainant. No loss having been demonstrated, there was no basis for a compensation order in respect of the alleged liability to the ATO.
5. If the words "there is no evidence at all as to any crystallised liability to the ATO", are meant to indicate that there is no evidence that an order has been made by the Federal Circuit Court of Australia that Mr Rahman pay the Commonwealth of Australia's legal costs of the strike out application, we respectfully disagree.
6. First, we can take notice of the orders reported in the decision at [2013] FCCA 388.
7. Second, Mr Rahman's affidavit sworn 5 May 2015 was made in support of the Council's application and the last sentence of par 46 of that affidavit refers to the fact of a costs order being made in favour of the ATO. The first sentence of that paragraph makes it clear that the costs order was made in respect of the strike out application. Furthermore par 49 of exhibit 3 makes several references to the strike out application.
8. In those circumstances we make a finding that an order was made by the Federal Circuit Court of Australia that Mr Rahman pay the costs of the Commonwealth of Australia of the strike out application.
9. Had the barrister not engaged in unsatisfactory professional conduct by: 1. Failing to advise Mr Rahman of and/or rectify the deficiencies in the statement of claim; 2. When the ATO filed the summary dismissal application: 1. Not making himself available to attend conferences for the purpose of drafting or settling Mr Rahman's evidence in relation to the application; 2. Failing to provide supplementary submissions in response to the application; and 3. Failing to appear at the hearing of the application, the Commonwealth of Australia would not have incurred all the legal costs which it did incur in pursuing the strike out application. Further had the barrister not engaged in that unsatisfactory professional conduct, Mr Rahman would not have incurred the liability under the costs order made against him, to pay the Commonwealth of Australia's costs of the strike out application.
10. Accordingly we are of the view that this liability which Mr Rahman has incurred to pay the Commonwealth of Australia's costs of the strike out application, is a loss suffered by him because of the unsatisfactory professional conduct of the barrister, the subject of the complaint.

There is a $25,000 cap on compensation

1. The second claim for compensation is for an amount of $35,239.97. The third claim is for a sum equivalent to the amount payable by Mr Rahman to the Commonwealth of Australia pursuant to interlocutory orders made by the Federal Circuit Court of Australia on 12 July 2013. Apparently the Commonwealth of Australia has assessed its costs at $39,240.85.
2. The question is whether there is a limit on the total claim of $25,000 or whether each claim is so limited so that there is a total cap of $50,000.
3. In our view Part 4.9 of the Act very clearly imposes a cap of $25,000 for loss suffered because of conduct that is the subject of the complaint. So much is clear from the terms of the Part read as a whole the relevant provisions of which are as follows: 1. There is a single complaint referred to:- s 571(1) 'loss suffered because of conduct that is the subject of the complaint'; 2. In respect of that complaint an amount of compensation may be payable: s 571(2)(c) 'an order that the practitioner pay to the aggrieved person, by way of monetary compensation for the loss, a specified amount.' 3. The amount is limited in the Tribunal absent consent: s 571(5): A compensation order under subsection (2) (c) requiring payment of an amount exceeding: (a) $25,000, …, is not to be made unless the complainant and the practitioner both consent to the order. 1. Even if the Commissioner or relevant Council has made an order but proceedings are later begun in the Tribunal the amount is so capped: S 573(6): 'If: (a) the Commissioner or relevant Council makes a compensation order, and (b) proceedings are subsequently commenced in the Tribunal with respect to the complaint concerned, the Tribunal may make a further order under subsection (1), but the order, if requiring payment of an amount (when added to the amount in the original order) exceeding $25,000, is not to be made unless the complainant and the Australian legal practitioner both consent to the order.'
4. Finally, the person suffering loss is not shut out forever as, by operation of s 575 of the Act, it is provided that 'The recovery of compensation awarded under this Part does not affect any other remedy available to an aggrieved person, but any compensation so awarded is to be taken into account in any other proceedings by or on behalf of the aggrieved person in respect of the same loss.'
5. What we take from this is that although normally, by operation of the Interpretation Act s 8(b) 'a reference to a word or expression in the singular form includes a reference to the word or expression in the plural form' this is subject to any contrary intention, and the intention is clear that in relation to 'the complaint' and the consequential loss, there is to be a single compensation order with a cap of $25,000 which can only be exceeded if the parties both consent. This follows from the usual principles of statutory interpretation, namely: 1. The task of statutory construction must begin with the text itself. The meaning of the text requires consideration of the context, which includes the general purpose and policy of a provision, in particular, the mischief it is seeking to remedy: see, e.g., Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47] (Hayne, Heydon, Crennan and Kiefel JJ). 2. The purpose of a statute resides in its text and structure: see Lacey v Attorney-General of Queensland (2011) 242 CLR 573; [2011] HCA 10 at [44]. 3. The construction of the text arrived at should have both internal logical consistency, and involve an overall harmonious interpretation: Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1; [2015] HCA 14 citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 [1998] HCA 28at [69]-[70] (Project Blue Sky).
6. The Explanatory Note for the Bill for the Act stated: A compensation order may be made by the Tribunal, the Commissioner or a Council, and maximum amounts are specified as to how much can be ordered to be paid (more can ordered if the complainant and practitioner consent).
7. The policy appears to have been continued in the Legal Profession Uniform Law (NSW) - see s 308.
8. In our view the second and third claims arose out of the same circumstances namely the unsatisfactory professional conduct by the barrister in his mishandling of the litigation. As a result of that unsatisfactory professional conduct, Mr Rahman incurred solicitor's and barrister's fees and a liability to pay the Commonwealth of Australia's costs of the strike out application. Thus for the purposes of Part 4.9 of the Act Mr Rahman suffered only one loss.

Submissions of the barrister

1. The barrister has made a number of submissions which we will now summarise.

The general application filed 8 November 2016 - a nullity

1. The barrister submitted that by s 570 (3) of the Act, a request for compensation by a complainant may be made in the complaint or by notice in writing to the Commissioner or the relevant Council, at any time after the making and before the disposal of the complaint. Section 570 (4) provides that such a request may only be made after proceedings have been commenced in the Tribunal with respect to the complaint if the Tribunal grants the complainant leave to make the request. It was submitted that that subsection does not, however, alter the requirements in s 570 (3) that a request for compensation must be made before the disposal of the complaint. It was submitted that the complaint was disposed of on 23 June 2016 and that the general application filed by Mr Rahman on 8 November 2016 was filed after that date and hence was made outside the time allowed by s 570 (3). It was submitted that the application should accordingly be treated as a nullity and the Tribunal should instead proceed on the basis of the application for a compensation order set out in the application for disciplinary findings and orders filed by the Council on 2 April 2015.
2. Mr Rahman made written submissions dated 19 April 2017 and they included submissions concerning what was described as "8 November 2016 Compensation Claim". It was submitted that on 8 November 2016 Mr Rahman made an application for compensation pursuant to the Act and that the application for compensation was within time as the applicant made a claim for compensation after the commencement of the proceedings. No section of the Act was referred to in support of that submission and we do not accept it.
3. Mr Rahman submitted that should there be an issue as to the timing of the complaint, or the form of complaint, then he sought leave to make the compensation request pursuant to s 570 (4).
4. It was also submitted by Mr Rahman that in addition, he had sought, through the application made by the Council, for compensation to be paid to him.
5. As the barrister has submitted that Mr Rahman's application should proceed on the basis of the application for compensation set out in the Council's application for compensation to be paid to him, we are unable to see any reason why we should now grant leave to Mr Rahman to make a request for compensation. The barrister has not disputed that Mr Rahman has made an appropriate request for a compensation order and this case has proceeded on the basis that such a request was made by Mr Rahman. We therefore dismiss Mr Rahman's application to make the compensation request pursuant to s 570 (4) of the Act and also dismiss Mr Rahman's application to rely upon the general application filed on 8 November 2015.

Loss a pre-requisite - onus of proof

1. The barrister submitted that loss was a pre-requisite for the making of any compensation order (ss 570 (1), 571 (1) and 572 (2)). It was submitted that the purpose of a compensation order is thus compensatory and not punitive and that the onus was on the complainant to demonstrate that he had suffered loss "because of conduct that is the subject of the complaint". It was submitted that this requires the complainant to prove both the fact and the quantum of the loss. Importantly, it was submitted, that the complainant must also demonstrate a causal connection between the conduct and the loss. Subject to the requirement that the causal connection must be between the unsatisfactory professional conduct or professional misconduct and the loss, we accept those submissions.
2. It was submitted that a complainant may only request one compensation order in respect of loss that has occurred because of the conduct the subject of the complaint. We will not set out the balance of the submissions on this point as we have dealt with it above.

Loss claimed by Mr Rahman

1. We will not refer to the barrister's submissions concerning the $33,000 as we have already made a finding that no part of that amount is recoverable by Mr Rahman.

The $35,239.97 claim

1. On 17 March 2017, the solicitor for the barrister wrote to the solicitor for Mr Rahman concerning paragraph 47 of Mr Rahman's affidavit sworn 5 May 2015. This paragraph referred to the five amounts which make up this claim. The letter went on as follows: Beyond the assertions of the payments made however, your client has not otherwise adduced any documentary evidence of those alleged payments. We put your client on notice that in the absence of documentary evidence of the asserted payments, such as by way of payment receipts or bank statements, our client will submit at the hearing of your client's compensation application that no weight should be given to your client's assertion that payments were made by him to the legal representatives.
2. However the barrister did not identify and bring to our attention any evidence as to why we should call into question Mr Rahman's sworn evidence of payment. The barrister could have cross-examined Mr Rahman on his affidavit sworn 5 May 2015. He could have had a summons issued requiring Mr Rahman to produce evidence of payment. He did neither. We have not seen any evidence which causes us not to accept Mr Rahman's evidence of payment.
3. Paragraph 47 of Mr Rahman's affidavit sworn 5 May 2015 is in the following terms: 47. I have incurred substantial fees in relation to the Strike Out Application and associated matters: a. $6,912.50 (being Mr Atila's fees for work performed in relation to the Strike Out Application (most of which have been paid by me) - Annexed and marked "G" is a copy of Mr Atila's relevant invoices dated 4 November 2012, 10 December 2012, 11 February 2013 and 4 March 2013); b. $13,200 (being Ms Ronalds' fees in relation to the Strike Out Application (which have been paid by me) - Annexed and marked "H" is a copy of Ms Ronalds' invoice dated 4 March 2013); c. $5,236.66 (being the fees of Robert Christie (Solicitor), in relation to the Strike Out Appplication (which have been paid by me) - Annexed and marked "I" is a copy of Mr Christies' invoices dated 5 April 2013 and 24 April 2013); d. $8890.81 (being Mr Rogers' fees in relation to the Strike Out Application and in relation to costs and "an application i meant that a unit that is the n a case (sic): which have been paid by me) - Annexed and marked "J" is a copy of Rogers' invoices dated 29 April 2013 and 31 July 2013). I noted that Mr Rogers' invoices exceed that amount but the arrangement which I had with Mr Rogers was that I would pay a lower amount were I unsuccessful in the proceedings; e. I also paid $1000 (inclusive of GST) to John Young of counsel in respect of advice regarding the strike out application. I no longer have access to the relevant invoice.
4. In written submissions dated 21 March 2017 made on behalf of the barrister it was said that there were a number of problems with the evidence that has been led by Mr Rahman of this alleged loss. It was pointed out that Mr Rahman stated in his affidavit that he had paid most of Mr Atila's fees and that so far as they have not been paid, Mr Rahman had not adduced any evidence of the basis on which he is allegedly subject to a liability to make the payment. It was submitted that for example Mr Rahman had not adduced evidence of any costs agreement that would give rise to such a liability.
5. It was submitted that so far as Mr Rahman asserted that he has paid legal fees, the evidence rose no higher than bare assertion and was uncorroborated by any documentary evidence of payment. The submissions drew attention to the letter referred to in par 67 above and it was submitted that the uncorroborated assertion of Mr Rahman was not a safe or proper basis on which to conclude that payments have been made. It was submitted that the Tribunal should accordingly give no weight to that evidence.
6. The submissions on this claim concluded as follows: 29. Thirdly, no attempt has been made by the complainant to identify the particular items of work the subject of the invoices tendered by the complainant that were incurred because of the conduct found against the respondent. A perusal of the invoices reveals that many of the items of work appear to be unconnected with the misconduct that has been found. Moreover, there appears to be some duplication in the work that has been performed. For example, Chris Ronalds SC Robert Christie and Mr Rogers of counsel all appear to have done work in connection with the amendment of the pleadings, but no attempt has been made to identify (1) why it was necessary for these different practitioners to have involvement in amending the pleadings (2) whether the amendment work done by all three of them related to the deficiencies in the statement of claim which are the subject of the findings against the respondent, or (3) to the extent there is overlap work, why that overlap was necessary.

Fees payable to Mr Atila

1. In par 49 of his letter of complaint dated 12 June 2013, exhibit 3, Mr Atila stated: Mr Rahman has incurred the following costs unnecessarily: … (b) My fees relating to the time for the Strike Out Application proceedings - $6,912.50.
2. Annexure G to Mr Rahman's affidavit is tax invoices from Atila Lawyers to Mr Rahman dated 4 November 2012, 10 December 2012, 11 February 2013 and 4 March 2013. Each tax invoice attached a document setting out Mr Rahman's rights in relation to legal costs, one of which was "Applying to set aside our costs agreement."
3. In the tax invoice dated 4 March 2013 Atila Lawyers included the following entry: "Fees of Ms Ronalds as per her Tax Invoice dated 27 February 2013 (including GST) $13,200."
4. Those four tax invoices are each headed "Workplace Dispute with the Commissioner of Taxation". They include a description of the work carried out and the fees charged. The description of the work includes reference to the strike out application, conferences with the barrister, conferences with Ms Ronalds and amending the further amended statement of claim. There can be no doubt that the work described in the 4 invoices relates to Mr Rahman's litigation with the Commonwealth of Australia (the ATO), the work of the barrister, the amendments of the statement of claim and the strike out application. The description of the work shows that it was caused by the barrister's unsatisfactory professional conduct. The amounts total $6,912.50. The tax invoice dated 11 February 2013 includes a payment of $1,000 made on 3 January 2013 and as we have mentioned the tax invoice dated 4 March 2013 includes the entry in relation to the fees payable to Ms Ronalds.
5. Annexure H to Mr Rahman's affidavit is an amended tax invoice for memorandum of fees due to Chris Ronalds SC. The matter is described as "Fahmid Rahman v Commonwealth of Australia:
6. Federal Magistrates Court proceedings". The work carried out by Ms Ronalds is described in the tax invoices as follows: 2013 13 January to Peruse brief, conferences, teleconferences 27 February to draft pleadings, appear in Court (26/2), conduct settlement negotiations and advise generally

1. There can be no doubt that the work related to Mr Rahman's litigation with the Commonwealth of Australia and the description of the work shows that it was caused by the barrister's unsatisfactory professional conduct.
2. There is a handwritten signature "Chris Ronalds 4 March 2013" on the tax invoice. That date coincides with the date of the fourth invoice sent by Atila Lawyers to Mr Rahman.
3. We conclude from these tax invoices and the documents attached to them that there was a costs agreement between Atila Lawyers and Mr Rahman and that he had incurred a liability to pay to Atila Lawyers $6,912.50 and incurred a liability to those lawyers to pay the amount of Ms Ronalds' fees namely $13,200.

Fees of Mr Christie

1. Annexure I to Mr Rahman's affidavit comprises invoices dated 5 April 2013 and 24 April 2013 from Mr Christie's firm, Jesus' Advocacy International.
2. The first entry in the invoice dated 5 April 2013 is as follows: "(Forwarding of new agreement at reduced hourly rate as suggested, but incorporating lesser percent reduction allowance)." The invoice did not show the date of that entry. 12 March 2013 is the date of the first entry showing the time engaged. There is a reference to Clayton Utz in that entry and in the entry of 16 April 2013 in the second invoice there is another reference to Clayton Utz. There is an entry of 14 March 2013 in these terms: "Further extensive communication with CU re non-receipt of FASC, with FR and with new barrister, culminating in 1 ½ hrs conference in chambers". It therefore appears that Clayton Utz was acting for the ATO in the Federal Circuit Court of Australia proceedings. The invoice dated 5 April 2013 had numerous references to "TR" and the entry of 12 March 2013 shows that this is a reference to Mr Tony Rogers, barrister at University Chambers.
3. There is an entry dated 12 March 2013 in the invoice dated 5 April 2013: "Representation in support of counsel at Hearing ….". In the tax invoice dated 29 April 2013 from Mr Rogers (part of annexure J to Mr Rahman's affidavit) there is an entry: "22 .03. 2013 Appear strike out application."
4. When one considers the entries in the invoice dated 5 April 2013 which contain abbreviations FASC, (2 entries) and FA S of C (1 entry), an entry for 22 March 2013 - representation in support of counsel at hearing and the entry of 21 March 2013 which included "further preparation for Hearing. Attendance at chambers to confirm TR ready." when read with Mr Rogers' tax invoice dated 29 April 2013, which contains an entry for 22 March 2013 - "Appear strike out application", we are of the view that the entries in the invoice of 5 April 2013 refer to work carried out by Mr Christie in connection with the strike out application.
5. Attached to the invoice of 5 April 2013 was a document setting out Mr Rahman's rights in relation to legal costs. One of the rights was applying to set aside "our costs agreement". The first entry in the invoice refers to a new agreement.
6. We are of the view that the above is evidence that Mr Christie had a costs agreement with Mr Rahman and we make that finding.
7. Mr Christie discounted his fees to 2/3rds of the actual total due "by (compassionate) grace)". He thus reduced his fees in the invoice of 5 April 2013 to $3,083.33. He reduced his fees in the invoice dated 24 April 2013 to 2/3rds of the actual total due "(by grace (Jesus' compassion))". The amount charged after the reduction was $2,153.33 making a total of $5,236.66 for the two invoices. We note that the heading of the 2nd invoice was: "Matter of: ATO, FMC" which we take to mean Australian Taxation Office and Federal Magistrates' Court, which is further evidence that the work described in the invoices related to the strike out application.

Fees charged by Mr Rogers

1. Annexure J to Mr Rahman's affidavit is tax invoices dated 29 April 2013 and 31 July 2013 from Mr Rogers to Jesus Advocacy International, solicitors. The heading of each tax invoice is "Rahman v Commissioner of Taxation."
2. The first three entries in the invoice of 29 April 2013 are dated 14, 17 and 22 March 2013. The 3rd entry is "Appear strike out application."
3. The 4th and last entry is: "Re-draft pleadings (both before and since 22.03.2013) estimate - 5 hrs, charge 3 hours)".
4. Those entries when read with the entry of 22 March 2013 in Mr Christie's invoice of 5 April 2013, satisfies us that the work carried out by Mr Rogers and referred to in his tax invoice of 29 April 2013, was work carried out in relation to the strike out application.
5. The 1st entry in the tax invoice dated 31 July 2013 is dated 20 May 2013 and it records the commencement of the drafting of submissions re costs. The entry for 21 May records the continuation of the drafting submissions re costs. The entry for 22 May records further drafting submissions re costs and the entry for 24 May records the completion of the drafting of submissions re costs. When that tax invoice is read with the tax invoice of 29 April 2013 we are satisfied that each of the entries on page 1 of the invoice dated 31 July 2013 relates to the strike out application. Page 2 of that tax invoice carries forward the total from page 1. In that circumstance we are of the view that it is reasonable to conclude that the entries on page 2 of the tax invoice relate to work connected with the strike out application and in particular in relation to the orders to be made in relation to that strike out application.
6. We note that Ms Ronalds' amended tax invoice records her last work as being carried out on 27 February 2013 and that Mr Rogers' first tax invoice shows his first work as having been carried out on 14 March 2013.
7. We are of the view that the invoices of the barristers and solicitors show that the work charged for was work which was brought about by the barrister's unsatisfactory professional conduct. We are of the view that it has not been shown that there has been duplication in that work. Mr Christie was acting as Mr Rahman's solicitor and his work was different from the work of Ms Ronalds and Mr Rogers, as would be expected. The tax invoices bear this out. The tax invoices also show that Mr Rogers was involved in work which was not carried out by Ms Ronalds.
8. However no evidence of payment of Mr Roger's fees has been brought to our attention nor has any evidence of a costs agreement between Mr Rogers and Mr Rahman been brought to our attention. Paragraph 47 of Mr Rahman's affidavit does not state that he paid $8,890.31 to Mr Rogers. We are therefore not satisfied that that amount was a loss suffered by Mr Rahman because of the unsatisfactory professional conduct of the barrister.
9. In our view insufficient information has been provided to us concerning the advice given by Mr Young and therefore we are not prepared to make a finding that this amount was a loss suffered by Mr Rahman because of the unsatisfactory professional conduct of the barrister.
10. We find that each of the amounts of $6,912.50, $13,200 and $5,236.66 referred to in par 47 of Mr Rahman's affidavit sworn 5 May 2015 are losses suffered by Mr Rahman because of the unsatisfactory professional conduct of the barrister. The total of those amounts is $25,349.16. Section 571 (5) of the Act relevantly provides that a compensation order requiring payment of an amount exceeding $25,000 is not to be made. As we are of the view that it is in the interests of justice that an order for compensation in the amount of $25,000 should be paid, we will make that order. We are of the view that it is in the interests of justice that that order be made because of the facts of this case and in particular because Mr Rahman has suffered considerable losses because of the barrister's unsatisfactory professional conduct. Further, the order will contribute to protecting the public in the future against that type of conduct and informs the public and practitioners alike as to the consequences which can flow from unsatisfactory professional conduct (cf Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 440G - 441C).

Other matters

1. In his written submissions, Mr Rahman sought an oral hearing. The barrister has opposed that application. The proceedings were fixed for an oral hearing on 21 March 2017. The barrister has filed 11 pages of written submissions prepared by his counsel. In those circumstances we are unable to see why there should be an oral hearing at this time.
2. Mr Rahman seeks an order for costs of the proceedings. The barrister seeks the opportunity to make submissions on costs after we have delivered our reasons for decision. Mr Rahman also seeks interest. The barrister has submitted that no such claim was made in the application and it should be rejected.
3. We have not heard argument on these questions and we will therefore make directions in relation to them.

Orders and directions

1. In the matter of Council of the New South Wales Bar Association v John Patrick Berwick file number 2015/00383754 (1520067); the Tribunal makes the following order: 1. Order that the respondent John Patrick Berwick pay compensation to the applicant Fahmid Rahman in the amount of $25,000.
2. In the matter of Fahmid Rahman v John Patrick Berwick file number 2016/00378818 (1620258); the Tribunal makes the following orders: 1. The application of Fahmid Rahman seeking leave to make a compensation request pursuant to s 570 (4) of the Legal Profession Act 2004 is dismissed. 2. The application by Fahmid Rahman to rely upon the application number 1620258 filed on 8 November 2015 is dismissed.

Directions

1. In the matters file numbers 2015/00383754 (1520067) and 2016/00378818 (1620258) the Tribunal gives the following directions: 1. If either party seeks an order for costs or interest they are directed to 1. Inform the Registrar and the other party in writing of that fact within 14 days from the date of publication of these reasons for decision. 2. File and serve written submissions in support of the application or applications for costs and/or interest within 28 days from the date of publication of these reasons for decision. 3. Within 42 days file and serve written submissions in reply. 4. Within 28 days notify the Registrar of the Tribunal whether he consents to the application or applications being dealt with on the papers without a further hearing.

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: 06 September 2017