The applicant in these proceedings, Council of the New South Wales Bar Association, has filed an application seeking findings of misconduct and the making of protective orders against the respondent, Peter Richard Nagle, who formerly practised as a barrister. In Council of the New South Wales Bar Association v Nagle [2018] NSWCATOD 104 I rejected an interlocutory application brought by the respondent challenging whether the statutory basis upon which the proceedings were commenced was correct. I reserved costs. The respondent seeks a costs order in its favour. These reasons deal with this application.
[2]
The statutory basis for making a costs order
There are a number of statutory provisions which deal with the making of costs orders in proceedings before this Tribunal. The respondent relied primarily on the provisions of section 60 of the Civil and Administrative Tribunal Act which are in the following terms;
Civil and Administrative Tribunal Act 2013 No 2
Current version for 1 July 2018 to date (accessed 9 September 2018 at 09:13)
Part 4 Division 5 Section 60
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.
Prima facie the provisions of section 60 preclude the making of a costs order except in special circumstances. However, the applicant asserted, and I agree, that section 60 of that Act is displaced by other provisions of that Act and by the provisions of the Legal Profession Uniform Law which I found in the earlier proceedings to be the applicable legislation governing the Application filed by the applicant. For example, section 303 of that Uniform Law provides as follows;
303 Costs
(1) 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.
(2) The designated tribunal may make orders requiring a lawyer whom it has not found guilty of unsatisfactory professional conduct or professional misconduct to pay costs (including costs of the designated local regulatory authority and the complainant), if satisfied that -
(a) the sole or principal reason why the proceedings were instituted in the designated tribunal was a failure of the lawyer to cooperate with the designated local regulatory authority; or
(b) there is some other reason warranting the making of an order in the particular circumstances.
(3) The designated tribunal may make orders requiring -
(a) a local regulatory authority; or
(b) a person, body or fund nominated in relevant jurisdictional legislation for the purposes of this section -
to pay costs, but may do so only if satisfied that the lawyer concerned is not guilty of unsatisfactory professional conduct or professional misconduct and the designated tribunal considers that special circumstances warrant the making of the orders.
(4) The designated tribunal may make orders requiring -
(a) a lawyer in respect of whom proceedings are pending before the designated tribunal; or
(b) a person, body or fund nominated in relevant jurisdictional legislation for the purposes of this section -
to pay costs on an interlocutory or interim basis.
(5) An order for costs -
(a) may be for a specified amount; or
(b) may be for an unspecified amount but must specify the basis on which the amount is to be determined.
(6) An order for costs may specify the terms on which costs must be paid.
(7) It is intended that jurisdictional legislation may provide a right of appeal against or a right of review of the designated tribunal's decision.
This section is clearly intended to provide a distinct and discrete code allowing for the making of costs orders in proceedings brought before this Tribunal, as the "designated tribunal" for the purpose of that Act, and as such displaces the general provisions of section 60.
Furthermore, there are provisions of the Civil and Administrative Tribunal Act itself which empower this Tribunal to make costs orders in these proceedings. Schedule 5 to this Act contains provisions relating to the Occupational Division of the Tribunal including provisions relating to the composition and functions of the Division. Part 4 contains "special provisions" relating to certain occupations including, relevantly, in Division 4 of Part 4 "lawyers and public notaries". Contained within Division 4 is clause 23 which deals with costs, and, as will be seen specifically overrides the provisions of section 60. Clause 23 is in the following terms;
23 Costs consequent of adverse conduct findings
(1) Despite section 60 of this 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 costs (including costs of the Commissioner, a Council and the complainant), unless the Tribunal is satisfied that exceptional circumstances exist.
(2) The Tribunal may make orders requiring a respondent lawyer whom it has not found to have engaged in unsatisfactory professional conduct or professional misconduct to pay costs (including costs of the Commissioner, a Council and the complainant), if satisfied that:
(a) the sole or principal reason why the proceedings were commenced in the Tribunal was a failure of the lawyer to co-operate with the Commissioner or a Council, or
(b) the lawyer has contravened an order of the Tribunal made in the course of the proceedings concerned, or
(c) there is some other reason warranting the making of an order in the particular circumstances.
(3) The Tribunal may make orders requiring payment of a respondent lawyer's costs from the Public Purpose Fund (within the meaning of the Legal Profession Uniform Law Application Act 2014), but may do so only if satisfied that the lawyer did not engage in unsatisfactory professional conduct or professional misconduct and the Tribunal considers that special circumstances warrant the making of the orders. The Tribunal is to have regard to the length and complexity of the proceedings when making a determination under this subclause.
(4) The Tribunal may make orders requiring a respondent lawyer in respect of whom proceedings are pending before the Tribunal to pay costs on an interlocutory or interim basis.
(5) The Tribunal may make orders requiring a person to pay costs (including, as appropriate, the costs of the Commissioner, a Council, the complainant and the respondent lawyer against whom the complaint was made), if satisfied that:
(a) the person, whether before or during the proceedings, failed to produce or delayed in producing any document required or requested to be produced, and
(b) the failure or delay contributed to delay in commencing, conducting or concluding the proceedings in such a way as to warrant the making of the orders.
(6) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014).
(7) An order for costs may specify the terms on which costs must be paid.
Prima facie section 303 of the Uniform Law and cl 23 of the Civil and Administrative Tribunal Act both cover these proceedings. Questions might arise as to which of these provisions apply, but fortunately they are to similar effect in their application to this matter. Both allow for a costs order to be made on an interlocutory or interim basis.
I proceed on the basis that this is a costs jurisdiction, and that the usual principles apply, including the basic principle that in the ordinary course, costs will follow the event.
[3]
The merits of the costs application
The applicant submitted that it was entirely successful in defeating the interlocutory application brought by the respondent, and that prima facie it should be entitled to its costs. In support of this contention the applicant noted that at a directions hearing conducted before a Deputy President of this Tribunal on 6 December 2017 there had been a discussion concerning the relevant applicable legislative background. The respondent had been present at that hearing. The Deputy President was informed that the applicant took the view that the relevant legislative provision was the Uniform Law having regard to the Savings and Transitional Provisions of that legislation and reference was made to the decision of the NSW Court of Appeal in Griffin v The Council of the Law Society of New South Wales [2016] NSWCA 364. The respondent said that the matter was again raised in a further directions hearing on 6 December 2017. Notwithstanding this, the respondent had filed his Interlocutory Application on 8 December 2017 in circumstances where he should have realised that there was no reasonable prospect of success.
In his written submissions the respondent said that even though he had been present during the directions hearings he had not appreciated that the Savings and Transitional Provisions of the Uniform Law had the effect that that legislation governed the proceedings. He said that he had been informed by a representative of the applicant about Griffin's case, but was unable to find any reference in that decision to the retrospective application of the Uniform Law. Whilst I do not have any details of the enquiry made by the respondent, it may be assumed that he in fact had recourse to an earlier decision in the NSW Court of Appeal bearing the same title in Griffin v Council of the Law Society of New South Wales [2016] NSWCA 275 (20 September 2016). That citation is to a stay application brought in the same proceedings which was determined some three months before the decision relied upon by the applicant. The respondent is correct that in that earlier decision there is no reference to the applicable legislation and the retrospective effect of the Uniform Law. However that matter is dealt with extensively in the judgement of Sackville AJA (with whom Ward and Gleeson JJA agreed )in Griffin v The Council of the Law Society of New South Wales [2016] NSWCA 364.
The respondent also emphasised that apart from the application of the Savings and Transitional Provisions of the Uniform Law, additional questions were raised concerning the language used in the legislation. Whilst this is correct, and these were matters which were properly considered in the course of those interlocutory proceedings, those additional questions did not assist the respondent in the prosecution of his interlocutory application.
Whether or not there has been some miscommunication between the respondent and representatives of the applicant is not known. In any event, where a party to litigation initiates proceedings, whether or not of an interlocutory nature, and there is no basis for doing so, then prima facie that party will be exposed to an adverse costs order. There is no suggestion that in any way the respondent was misled by the applicant during the course of the directions hearings, or in the course of any other communications between them.
In his submissions the respondent also raised questions concerning his impecuniosity, but as is well known, matters of this kind do not warrant a disinclination to make an adverse costs order. Matters of this kind are traditionally taken into account during the course of negotiations at the enforcement stage.
I conclude that the respondent is entitled to a costs order in its favour with respect to these interlocutory proceedings.
[4]
Quantification of the respondent's costs
The respondent sought an order that the Tribunal quantify its costs, as it is empowered to do. It asked that the costs be assessed in the sum of $20,000, on the basis of the total costs which the applicant said were incurred by it in the sum of $27,715.50. I note that of this sum, $21,020 was claimed for solicitors' costs and disbursements, $2508 for Senior Counsel and $4187.54 for junior counsel.
On one view, the interlocutory proceedings involved the interpretation of a short statutory provision against the context of what I recollect to have been an agreed factual basis. Assuming that the relevant questions of law would primarily be the purview of counsel, of whom there were two, and that this is a matter which had obviously been considered by the respondent for the purpose of the initiation of the proceedings and the directions hearings all of which preceded the interlocutory application filed by the respondent, I wonder what work needed to be undertaken by the solicitors in connection with the preparation for and defence of the interlocutory application.
Whilst there was obviously a need to peruse the respondent's material, formally brief counsel, and file submissions, report to the client and the like, much of the preparatory legal research work is usually undertaken by counsel. And of course, these matters must have been considered before the substantive proceedings were instituted.
I take the view that it would be inappropriate for me to make an award of a lump sum for costs, thereby avoiding the assessment process, unless I was appropriately informed concerning the quantification of that amount. This would arguably involve being appropriately satisfied, either on the basis of an examination of the underlying costs material myself or having recourse to expert evidence provided by persons with relevant expertise in this area. It may be that the amount claimed by the solicitors is fair and reasonable in all the circumstances, even allowing for the retention of and access to the opinions of senior and junior counsel. However, I am not disposed to make any lump sum order even based on such supporting material as has been provided by the applicant. Even allowing for the discounted basis of $20,000 claimed by the respondent as being appropriate, I am not prepared to make an order for a specified amount. The most appropriate course in the circumstances of these proceedings is that the costs which I intend ordering in favour of the respondent should be assessed in the normal course in default of agreement.
[5]
Order
I make the following order, namely that the respondent is ordered to pay the costs of the applicant with respect to the interlocutory application, assessed in default of agreement.
[6]
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
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Decision last updated: 13 September 2018