HER HONOUR: On 16 August 2021 the Court granted an application by the plaintiff ("the Bar Council") to impose an injunction upon the defendant, Michael Rollinson, pursuant to s 447(3) of the Legal Profession Uniform Law 2014 (NSW) ("the Uniform Law"), preventing him from practising as a barrister in the absence of a practising certificate, together with other ancillary orders: Council of the New South Wales Bar Association v Rollinson [2021] NSWSC 1090. Setting aside timetabling, the orders were as follows:
"1. Pursuant to s 447(3) of the Legal Profession Uniform Law 2014 (NSW), an injunction is to operate during the period in which the defendant does not hold a current practising certificate, including:
a. restraining the defendant from engaging in legal practice in New South Wales;
b. restraining the defendant from advertising or representing, or doing anything that states or implies, that he is entitled to engage in legal practice in New South Wales; and
c. restraining the defendant from restoring his name and contact information to the website of Latham Chambers (at www.lathamchambers.com.au) as a member of that Chambers.
2. Costs are reserved."
The Bar Council sought its costs of the proceedings, although that aspect of the matter was stood over to be dealt with on the papers, once the parties had an opportunity to file any evidence, and written submissions relevant to the issue.
In its submissions of 18 August 2021 the Bar Council argues that, as the designated local regulatory authority charged with the responsibility of ensuring that the Objectives in s 9 of the Uniform Law are carried out, it was obliged to bring proceedings because of the defendant's disregard for his obligations under the Uniform Law. It incurred considerable costs in bringing the proceedings before the Court, and should be granted a costs order in its favour, for the whole of the proceedings, notwithstanding the submitting appearance filed on 10 August 2021 by the defendant.
In terms of a chronology of events and costs incurred, the plaintiff notes that it was obliged to:
1. retain solicitors and counsel to act in the matter;
2. prepare and file affidavit evidence and relevant exhibits;
3. appear in the Common Law Duty Judge's List on 6 August 2021 to seek initial orders, and on 13 August 2021 before the Duty Registrar;
4. prepare and file written submissions; and
5. appear before the Court at the final hearing of the Summons on 16 August 2021.
The plaintiff submits that, as the successful party to the litigation, and noting that ordinarily costs follow the event, it is entitled to the whole of its costs. Although the defendant filed a submitting appearance, that is to be distinguished from consenting to the orders sought by the plaintiff. It is contended that it was necessary despite the submitting appearance for the plaintiff to bring proceedings, prosecute those proceedings, and to seek the judgment of the Court, because of the persistent conduct of the defendant in disregard of his professional obligations. On that basis the plaintiff submits that the defendant should bear the costs.
The Court was referred to the decisions of Dyer v Chrysanthou (No 3) (Costs) [2021] FCA 642; Lithgow State Mine Railway Ltd v City of Greater Lithgow Mining Museum Inc (No 3) [2020] NSWSC 35; and Kisimul Holdings Pty Ltd v Clear Position Pty Ltd (No 2) [2014] NSWCA 317.
The defendant, in an email received by the Court on 30 August 2021, submitted that:
"[..] each party should pay own costs from and including 11 August 2021, the day after I filed a submitting appearance.
I note in that regard that in accordance with that appearance, no opposition was made before or at the hearing on 16 August 2021 to the orders made on that day."
[2]
Determination
As the plaintiff points out, there is no rule of law that a party that files a submitting appearance will not incur an adverse costs order for costs after the date upon which the submitting appearance was filed. As Thawley J explained in Dyer v Chrysanthou (No 3), at [5]:
"The ordinary rule is that costs follow the event: Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at [11] (Black CJ and French J); Gray v Richards (No 2) (2014) 315 ALR 1 at [2]. It has been said that there is often an "expectation" that a party will not be subject to costs from the date of filing a submitting notice - see, for example: Lo v Australian Community Pharmacy Authority [2013] FCA 639 at [80]. The fact of the filing of such a notice is undoubtedly relevant to the exercise of the broad costs discretion in s 43 of the Federal Court of Australia Act 1976 (Cth). However, the filing of such a notice, or the statement to the Court that a party will adopt such a position, does not create a prima facie position that no costs will be awarded from the date of the notice or statement. Rather, the question must be determined on the basis of an appraisal of all of the facts, in particular the context in which the submitting notice was filed (or the relevant party indicated its position in that respect) - see, albeit in relation to a materially different statutory provision and rules of court: Kisimul Holdings Pty Ltd v Clear Position Pty Ltd (No 2) (2014) 86 NSWLR 645 at [14]."
Similar statements have been made in the State context. In Lithgow State Mine Railway Darke J said, at [4] - [7]:
"It is convenient to commence by referring to the legal principles that are applicable in circumstances where a party seeks costs against a submitting defendant. Neither the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") nor the Civil Procedure Act 2005 (NSW) deals with the costs consequences of the filing of a submitting appearance. GLMM submitted that in such circumstances the submitting defendant will "ordinarily" be liable for costs incurred up until the date on which the submitting appearance is filed, but not for costs incurred thereafter (referring to Delvetor Property Group Pty Ltd v Newcastle City Council [2001] NSWLEC 47 at [38] and [42]). It was suggested that this was a "presumption" which could be displaced by the relevant circumstances of the case.
However, it is my opinion that there is no such "presumption". In Kisimul Holdings Pty Ltd v Clear Position Pty Ltd (No 2) (2014) 86 NSWLR 645; [2014] NSWCA 317, the Court of Appeal referred (at [13]) to Delvetor Property Group Pty Ltd v Newcastle City Council (supra) where Bignold J observed (at [42]) that a submitting party is generally to be regarded as immune from any liability for costs incurred in the proceedings after the filing of the submitting appearance save as to costs. The Court of Appeal then stated (at [14]):
The true position is that the question should be approached not by reference to prima facie expectations but according to an appraisal of the circumstances of the case. In particular, attention must be paid to the context in which the submitting appearance was filed. Pertinent, in that connection, are the following observations of Beazley JA (as she then was) in Nyman v Valmas [1997] NSWCA 235:
"In my opinion, the filing of a submitting appearance does not denote consent to the orders sought. A submitting appearance (both at first instance and in this Court) may be filed for a variety of reasons. The typical situation is where a party has no vested interest in the outcome of proceedings. This typically occurs in statutory appeals where a necessary respondent is the Court or Tribunal from which the appeal is brought. Another is where a party holds funds as a stakeholder or on trust. However, the occasions where a submitting appearance is filed are by no means limited to such obvious circumstances. A party might submit where the costs of appeal outweigh the amount in dispute so that it was too prohibitive or simply not worth the while of a party to contest the matter. The procedure provided by the submitting appearance is a means of facilitating notice to the Court that the party does not propose to put any argument to the court."
More recently, in Lou v IAG Limited t/as NRMA Insurance [2019] NSWCA 319 the Court of Appeal described the Court's task as follows (at [42]-[43]):
What is called for, in all cases, is the principled exercise of the s 98 costs discretion. The discretion that s 98 confers is subject to the qualification that it must be exercised judicially "in accordance with established principle and factors directly connected with the litigation": Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [65] per McHugh J (in dissent but not relevantly for present purposes). Among the fetters on the discretion to award costs are the rules of the Court contained in Part 42 of the UCPR. The usual rule is that costs follow the event, unless it appears to the Court that some other order should be made: UCPR, r 42.1. The rationale for the principle that costs follow the event is that the successful party to proceedings should be compensated: Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59.
There is no prima facie rule that a submitting party will never be ordered to pay costs. In Seller v Jones [2014] NSWCA 19 at [55] and [59] McColl JA (with whom Basten and Ward JJA agreed) noted that r 6.11 of the UCPR does not provide for the costs consequences of a submitting appearance.
It follows from the authorities above that there are no special rules that apply to a defendant who has filed a submitting appearance in proceedings. Moreover, the circumstances in which a defendant files a submitting appearance is but one factor the Court takes into account in the exercise of its discretion to award costs under s 98 of the Civil Procedure Act."
The fact that the defendant filed a submitting appearance, four days after the plaintiff filed its Summons, is thus only one of the factors to which the Court must give attention.
There are other features which, in my view, are of greater significance.
The first is that it was necessary for the plaintiff to commence proceedings at all, in circumstances where the defendant should have well understood that he was not entitled to practice as, or hold himself out to be, a barrister in the absence of a valid practising certificate, and should have complied with his obligations under the Uniform Law to that end.
The second is that, even if the defendant had been under some misapprehension in that regard, he received early and prompt advice, on 2 July 2021, from the Bar's Certification Officer, warning him that he would contravene the Uniform Law if he practiced as a barrister, or held himself out to be such before a valid practising certificate issued to him.
The third significant feature is that, by letter of 23 July 2021, the defendant gave an undertaking to the Bar Association's Director of Professional Conduct that he would not engage in practice as a barrister, or represent that he was entitled to do so, until his practising certificate was renewed. It was the defendant's apparent breach of that undertaking, in continuing to act as Counsel in a matter reserved before the Court of Appeal, that caused the plaintiff to commence these proceedings.
That would not have been necessary had the defendant complied with his undertaking to the Bar.
Once the action was commenced, although the defendant filed a submitting appearance, he did not consent to the orders sought, and it was thus necessary for the plaintiff to adduce evidence, and make submissions in support of its application. That process involved it in expense.
As the designated local regulatory authority charged with statutory responsibilities under the Uniform Law, the plaintiff plays an important role in ensuring compliance with the legislation, and in protecting the public from persons purporting to practice law without an entitlement to do so. In this instance, it was only necessary for the plaintiff to take the action it did in this Court in fulfilment of its statutory role because of the defendant's persistent disregard for his obligations under the Uniform Law, obligations of which he was clearly aware.
Had the defendant complied with his undertaking of 23 July 2021 to the Bar, these proceedings would not have been brought and the Bar Council would not have incurred costs.
In those circumstances, the plaintiff should not be deprived of its costs for the whole of the proceedings, notwithstanding the submitting appearance filed on 10 August 2021.
[3]
order
The order that the Court makes is:
1. The defendant is to pay the plaintiff's costs of these proceedings, as agreed or assessed.
[4]
Amendments
03 September 2021 - Corrected typographical errors to Coversheet and paragraphs [1], [12], [13], and [14]
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Decision last updated: 03 September 2021
Parties
Applicant/Plaintiff:
Council of the New South Wales Bar Association
Respondent/Defendant:
Rollinson
Legislation Cited (3)
Neither the Uniform Civil Procedure Rules 2005(NSW)