HER HONOUR: By notice of motion filed on 10 September 2020, the first defendant, the New South Wales Bar Association, seeks an order for its removal as a party in proceedings initiated by the plaintiff, Mr Green. It read and relies upon an affidavit of Gregory Tolhurst affirmed on 9 September 2020 in support of the motion.
The second defendant consents to the orders sought. Its role today has otherwise been no more than to keep a watching brief.
Mr Green commenced proceedings against the first defendant, and against the Legal Profession Admission Board, the second defendant, by summons filed on 7 May 2020. That summons was subsequently replaced by an amended summons filed on 1 July 2020. Although, since soon after the commencement by Mr Green of his action against the defendants, the Bar Association has repeatedly invited and asked the plaintiff to remove it as a defendant to the claim, on the basis that it is not properly a party to the action, the plaintiff has consistently refused to do so. Hence, the notice of motion before the Court today.
Mr Green opposes the order which is sought by the Bar Association and read and relies upon his affidavits sworn on 22 September and 25 September 2020. The plaintiff's complaint relates to a decision of the second defendant of 8 April 2020 not to issue what has been referred to as a "compliance certificate" to him following upon an application he submitted to the Legal Profession Admission Board on 10 January 2019, with further supporting or amending material filed between then and 14 January 2020.
Mr Green was formerly in legal practice as a solicitor in England, being admitted in England and Wales to practice in that capacity. He has sought admission in New South Wales as a solicitor, relying upon his years of practice in the United Kingdom to be granted exemption from practical legal training requirements. The Admission Board refused that application on the basis that the plaintiff had not provided information as to his proposed employment and the supervision that would be available to him, or suggested clear conditions as might be imposed pursuant to s 20 of the Legal Profession Uniform Law (NSW). By his amended summons, the plaintiff asks this Court to review that decision, which he complains is infected by jurisdictional error or error on the face of the record, among other things.
The summons makes no complaint about any conduct of the Bar Association and nor is any order sought against it other than, originally, costs.
The Bar Association contends that it is not properly a party to the proceedings commenced by the plaintiff. On that basis, it wrote to the plaintiff on 12 May 2020 and asked him to provide details as to the basis of his claim against the Bar Association. The plaintiff responded on 19 May 2020. In his response, the plaintiff, referring to himself in the third person as "my client", asserted that the Bar Association "worked with" the Admission Board "regarding applications for admission". He referred also to the membership of the Admissions Board, noting that two of the members were barristers nominated by the Bar Council, with the Bar Council having the status of the Governing Council of the Bar Association. He asserted that the Bar Council was involved in the decision of the Admissions Board to refuse his application for admission. He also referred to an issue as to costs by which he asserted that the first defendant was properly a party but I have found that aspect of the plaintiff's letter of 19 May 2020 somewhat difficult to understand.
The solicitors for the first defendant wrote to the plaintiff again on 3 June 2020 reiterating that it was not properly joined in the proceedings as it had played no role in the decision to refuse the plaintiff's application to the Admissions Board, and would play no role in any future consideration of any further application. Mr Green was put on notice that if the Bar Association was not removed as a party, costs would be sought on an indemnity basis against him. The requested amendment was not made.
The plaintiff expanded upon his rationale for joining the Bar Association in further correspondence to the Bar Association's solicitor of 16 June 2020. In that letter the plaintiff argued that his ability to obtain a favourable costs order against the second defendant was limited and, as an important part of his claim related to costs, he could be wrongly disadvantaged if the Bar Association was not a defendant. He asserted that, as the Bar Council is a delegated regulatory authority for the purposes of matters connected with the legal profession, including the issue of practicing certificates, and any decision taken by either the Bar Council or the Admissions Board involved members of the Bar Association, the Bar Association was properly joined.
It is particularly important since, the plaintiff says, although his application of 10 January 2019 sought to permit him to practice as a solicitor, it is his intention to practice as a barrister at some future stage, and the Bar Council, constituted by persons who are members of the Bar Association, will be involved in his application to practice as a barrister.
The issue of the nomination of the New South Wales Bar Association as first defendant has also been raised by the first defendant at various directions hearings before the Court, and the plaintiff was again and repeatedly invited to amend his summons to remove the New South Wales Bar Association as a party to the proceedings.
Although the plaintiff has been granted leave to amend his summons and appears to have done so, although without marking the changes, he has resisted the repeated requests to remove the New South Wales Bar Association as a party. There have been a number of directions hearings, all of which involve costs to the parties, but the plaintiff continues to refuse to remove the Bar Association as a defendant. The decision as to whether or not the first defendant is to be removed now falls to the Court.
Written submissions have been received and both parties were given an opportunity to be further heard this morning on the application. The plaintiff sought to submit a further document in support of his position by email to my associate during the course of the luncheon adjournment, but that document was rejected and has not been considered.
Mr Griffin of Senior Counsel for the Bar Association points out that, by his amended summons filed on 1 July 2020, the plaintiff does not plead any wrong done by the first defendant and does not seek any order or relief against it. No order for costs is sought against the Bar Association in the amended summons. The first defendant referred to the role and membership of the Admissions Board and to the constitution of the New South Wales Bar Association, the two organisations being quite separate, with the latter having no role in the business of the former. Its members who serve on the Admissions Board, whether as nominees of the Bar Council or otherwise, do not act at the behest or direction of the Bar Association.
It is submitted that the plaintiff's claim against the first defendant has no prospect of success and could represent an abuse of process.
The plaintiff, in his written submissions, argued that the first defendant is "involved in the decision of the board as its members and nominees sit on the board". He has also raised an issue as to costs which, although I found it difficult to understand, appears to be a submission that, as the plaintiff may not be able to recover costs against the second defendant, and the first defendant has a role in determining disputes over costs in the context of the legal profession, it is properly joined to these proceedings as a party.
In oral submissions, Mr Green suggested that the Bar Association "may" have vicarious liability for the barristers who form part of the Admissions Board, or those barristers "may" be agents of the Bar Association and, thus, the Bar Association is a proper respondent to the claim.
Having considered the evidence before the Court, and the submissions of the parties, I intend to make the orders sought by the Bar Association for its removal as a defendant to the plaintiff's claim.
Rule 6.29 of the Uniform Civil Procedure Rules 2005 (NSW) provides a power to the Court to order that a person who has been improperly or unnecessarily joined as a party be removed as a party. I am well satisfied that the New South Wales Bar Association has been unnecessarily joined as a party to the plaintiff's claim. There is some evidence to suggest it has been improperly joined, although, being satisfied it was unnecessarily joined, this does not need to be determined.
The amended summons of 1 July 2020 makes no complaint of actionable conduct by the Bar Association and seeks no relief against it. An order in the nature of mandamus is sought by which the Admissions Board would be required to consult with the Bar Association, but that is not relief directed against the first defendant. Although Mr Green has asserted in oral submission that, by typographical error, an order for costs he seeks against the Bar Association was "left off" the amended summons, the Court proceeds on the basis of the documents as filed. Further, I find it very difficult to accept that a litigant with legal training and practice experience, even if not as a solicitor in this jurisdiction, could make such an error or, if he did, fail to notice it and correct it, particularly in circumstances where the first defendant specifically referred to the absence of any request for costs in its written submissions in support of today's motion.
If the first defendant is not alleged to have done something about which the plaintiff has taken legal action and no relief is sought against it, the basis of its role as a defendant is obscure. When regard is had to the evidence concerning the respective roles and constitutions of the Bar Association and the Legal Profession Admission Board, any basis for the first defendant to be legitimately joined as a party moves from the obscure to the untenable.
The Legal Profession Admission Board is a corporation created by section 19 of the Legal Profession Uniform Law Application Act 2014 (NSW). It has functions conferred on it by that Act, the Legal Profession Uniform Law, or any other Act, including functions connected with the issue or otherwise of practising certificates. The Admissions Board is made up of 11 members, two of whom are barristers nominated by the Bar Council. Other members are the Chief Justice of New South Wales and persons nominated by each of the Chief Justice, the Council of Law Deans, the Council of the Law Society and the Attorney General.
The Bar Association has no role to play in the constitution of the Admissions Board or in the decisions it makes. The Bar Association is a membership organisation for barristers. By its constitution, it operates to promote and uphold proper professional practice and standards among barristers with the overall aim of supporting the proper administration of justice. It has no role to play in issuing practising certificates or certificates of compliance to persons who wish to practice as solicitors in New South Wales. It played no role in the decision made by the second defendant with respect to the plaintiff's application of 10 January 2019. It could do nothing to alter that decision, having no role or power in that regard.
The plaintiff has submitted that the Bar Association is vicariously liable for the conduct of its members who are also members of the Legal Profession Admission Board, or that those persons act as the Association's agents. There is no evidence to support that contention. There is, however, evidence which establishes the contrary position, with Mr Tolhurst deposing, without contradiction, that the two nominees of the Bar Council to the Admissions Board act independently of the Bar Council and in conformity with their duties and obligations as members of the second defendant.
The Bar Association plays no role in the decisions of the Admissions Board through those persons on the board who are also barristers, any more than does the Law Society or the Deans of Law, who have not been nominated and joined as defendants. On the evidence, the Bar Association has no connection with these proceedings as launched by the plaintiff and has been unnecessarily joined.
Insofar as Mr Green may have joined the Bar Association so as to have access to its coffers against any costs order, that would be an abuse of process and is an improper basis upon which to join an entity or person to legal proceedings.
The plaintiff has raised a further basis for joining the Bar Association, being his wish to practice as a barrister in New South Wales at some future time, but that is entirely irrelevant to the decision of the second defendant with respect to the plaintiff's application of 10 January 2019.
For those reasons, the orders of the Court are as follows:
1. Pursuant to Rule 6.29 of the Uniform Civil Procedure Rules, the first defendant is to be removed as a party to these proceedings.
[2]
Costs
A few moments ago the Court made orders granting an order sought by the New South Wales Bar Association for its removal as the nominated first defendant in proceedings brought against it and the Legal Profession Admission Board by the plaintiff, Mr Green. Having made that order, I raised the issue of costs with the parties.
The Bar Association has made it clear, both in proceedings today and in correspondence between it and the plaintiff, which is in evidence before the Court, that its position with respect to costs would be, if these proceedings were necessary, to seek costs on an indemnity basis.
Mr Green was given an opportunity to make submissions as to why the Court should not make a costs order on that basis. He has pointed, as I understand his submissions, to two matters which he says would justify the Court in declining to make the order sought. Firstly, he points to an application that he has made to the Court, as I understand it, not determined by the Court, during the course of directions hearings for costs on an indemnity basis against the New South Wales Bar Association with respect to a motion that came before the Registrar in the course of directions. He relies on that undetermined application on a separate issue in part as a basis to argue that no such costs order should be made for these proceedings.
Further, he points to the Bar Association as having the role of a local regulatory authority with respect to the legal profession to submit that, if he is successful, that is, if the plaintiff is successful, he may not be able to recover costs against the second defendant, and the Court should grant him, by way of informal reciprocity, a similar protection.
Neither of those arguments is persuasive. The simple fact is, this proceeding, insofar as it is brought against the first defendant, was doomed to failure at the outset. The plaintiff was advised of that by the Bar Association on 12 May 2020 and repeatedly since. The Bar Association has regularly invited and sought for the plaintiff to remove it as a defendant to these proceedings on the basis that it was not properly joined. The plaintiff has consistently resisted that invitation. He was warned of the possible consequences in terms of a costs order were he to persist in bringing proceedings against the first defendant in circumstances where those proceedings were doomed to fail, but the plaintiff has disregarded those warnings.
As Mr Griffin pointed out this morning, notwithstanding the fact that the Bar Association could never have been properly a defendant in these proceedings, it has been put to repeated costs over a number of months now in retaining legal representation and appearing before the Courts in circumstances where the plaintiff was on early notice as to the consequences in terms of a costs order were he to persist with an application doomed to fail.
It seems to me that this is an occasion when the Court should make an award of costs on an indemnity basis. I would make orders as follows:
1. Costs on an ordinary basis up to, but not including 3 June 2020, and costs on an indemnity basis, on and from 3 June 2020, in favour of the New South Wales Bar Association against the plaintiff, Mr Green.
[3]
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Decision last updated: 09 November 2020