T Vernier (Plaintiff)
A M Stewart SCY Shariff (Defendant)
Judgment (4 paragraphs)
[1]
Solicitors:
T A Williams Solicitors (Plaintiff)
Hicksons (Defendant)
File Number(s): 2014/361966
[2]
Judgment (ex tempore)
On 25 November 2015 I delivered judgment in these proceedings. In para [413] I set out orders which I proposed and provided the parties with the opportunity of making any submissions on those orders as proposed, other than on the question of costs.
As to the question of costs in the proceedings I indicated in para [414] I would hear the parties on the matter. The proceedings have been listed today to receive submissions on the application that has been made on behalf of the plaintiff for an order for costs in his favour, that being sought upon the costs follow the event principle.
I have had the benefit of written submissions from counsel for the plaintiff, being Mr Vernier's submissions dated 2 December 2015, and submissions on behalf of the Bar Association, being the defendant's outline of submissions on costs dated 1 December 2015. Mr Vernier, of counsel, today supplemented the written submissions by oral submissions and Mr Stewart SC, who appears with Mr Shariff on behalf of the Bar Association, supplemented his submissions and responded to submissions made today by Mr Vernier. I heard submissions in reply by Mr Vernier on a number of matters raised by Mr Stewart and otherwise dealing with the nature of the proceedings and the stance taken by the Bar Association.
The power to award costs arises under s 98 of the Civil Procedure Act 2005, and in particular s 98(1) provides that:
"Subject to the Rules of Court and to this or any other Act,
(a) costs are in the discretion of the Court, and,
(b) the Court has full power to determine by whom, to whom and to what extent costs are to be paid, and,
(c) the Court may order that costs are to be awarded on the ordinary basis or on an indemnity basis."
It is well accepted by the authorities that the provisions of section 98 confer a wide discretionary power on the Court and that in general terms the principle is that such a judicial power should be liberally construed and exercised, restricted only by limitations and conditions that are clearly expressed. The High Court's decision in Oshlack v Richmond River Council (1998) 193 CLR 72 is one of the leading authorities supporting that principle.
It is, however, necessary in proceedings of this kind to also have regard to the nature of the proceedings. It has been accepted that proceedings such as the present are not proceedings between private litigants as is the nature of ordinary legal proceedings. I refer to discussion of such an issue by Campbell J in Wentworth v New South Wales Bar Association, unreported 29 June 1993. His Honour's judgment was subsequently upheld in the Court of Appeal.
However there is no controversy, as I understand it, in the present proceedings that these proceedings cannot be regarded as civil proceedings in the sense that they are ordinary legal proceedings. That is a factor that is to be taken into account on the application for costs sought against the New South Wales Bar Association as defendant in the proceedings in which the plaintiff was successful.
The nature of the proceedings, in my opinion, is relevant to the issue as to whether or not the costs follow the event rule applies or not. In my judgment the conventional rule that costs follow the event does not apply to proceedings such as the present. That, however, is not to say that special or particular circumstances may not justify the making of a costs order in favour of an applicant for a practising certificate who is successful in proceedings such as the present.
The power of the court to award costs, though broad, is to be exercised judiciously. That requires me to identify the relevant matters or factors that should be considered and taken into account in the exercise of the statutory discretion.
In general terms those matters include, firstly, the nature of the proceedings; secondly, the role played by the Bar Association as a proper contradictor, as well as its responsibilities in the interests of the public with respect to applications for admission to the Bar; thirdly, the issues that were litigated in the proceedings; fourthly, the fact that the plaintiff did not furnish to the Bar Association all relevant information going directly to the factual events and issues associated with and leading up to the settlement of Mr Xi Li's claim; fifthly, the basis and justification for the Bar Association contesting the proceedings and; sixthly, the outcome of the proceedings.
While no particular matter is decisive, the above matters I consider should be taken into account and evaluated in determining whether or not a costs order in favour of the plaintiff should be made or whether or not the appropriate order is each party pay his and its own costs of the proceedings.
During the course of the submissions today I have indicated that the proceedings are to be considered against the background of the relevant legislative provisions. Under the Legal Profession Act 2004, as it existed and operated as at the relevant time, the relevant statutory provisions are to be found in Part 2.4 of that Act. There are in particular four sections in that Part that are relevant to the present proceedings in terms of the nature of the issues and the role of the Bar Association.
In brief, s 41(1) makes provision for the granting of practising certificates, and:
"41(2) The Bar Council may on application, grant a practising certificate to an Australian lawyer authorising the lawyer to practise as a barrister."
Section 42(2) provides that:
"A Council may, in considering whether or not the person is a fit and proper person to hold a local practising certificate, take into account any suitability matter relating to the person, and any of the following, whether happening before or after the commencement of this section."
Subparagraph (f) to that section is, "Other matters that the Council thinks appropriate."
Thirdly, section 46(2) provides that:
"The regulations may require the applicant to disclose matters that may affect the applicant's eligibility for the grant or renewal of a local practising certificate or the question whether the applicant is a fit and proper person to hold a local practising certificate."
Section 46(5) provides:
"The appropriate Council may require an applicant to provide such further information as it considers relevant to its determination of the application within such time as it specifies."
Fourthly, s 48(3) states:
"The Council must not grant a local practising certificate unless it is satisfied that the applicant,
(a) was eligible to apply for the grant when the application was made, and,
(b) is a fit and proper person to hold the certificate."
Finally, s 48(13) provides:
"If an application made for the grant of a local practising certificate is not determined within,
(a) three months after the application is made unless paragraph (b) applies,...
Then the application is deemed to have been refused."
That circumstance arose in the present case. The Bar Association stated that it did not have time within the prescribed period to deal with the application and, accordingly, the provisions of the Act in effect placed the application in the hands of the Commissioner.
It is clear from those provisions that the Bar Association was required to ensure that an applicant for a practising certificate was a fit and proper person and it was prohibited by statute from granting a local practising certificate unless it was satisfied that the applicant was such a person.
Those matters arising under the provisions to which I have referred indicate the nature, the role and the obligations imposed on the Bar Association with respect to the grant of practising certificates. It is evident that those provisions are directed to ensuring that only persons who are fit and proper persons may hold a certificate. That is the relevant public interest served by those provisions.
Accordingly, it is relevant against that background to have regard to the role of the Bar Association in these proceedings. As I see it, it is threefold; one, to exercise the statutory powers vested in it and fulfil the responsibilities under the provisions just mentioned. Secondly, in this case the Association undertaking the role of what I might describe as investigator to establish the facts and matters that bear upon the question as to whether or not the plaintiff was a fit and proper person and; thirdly, to assume the role of contradictor in the proceedings in the event that the Association or Council of the Association formed the view that that was a proper course to follow.
Although submissions have been made today that the bases in the proceedings upon which the Association relied against the plaintiff were "unreasonable", I do not consider that the evidence adduced at the hearing established that the Council of the Bar Association acted unreasonably in relying on the matters that it did as contradictor to the proceedings. I note in that respect that Mr Coles of Senior Counsel appearing for the plaintiff did not go so far as to contend that the plaintiff Association acted unreasonably, although, of course, he did vigorously pursue matters in relation to the grounds relied upon by the Association. Indeed he was ultimately successful in many of his arguments in that respect.
It is unnecessary here to set out all of the contentions and submissions made on this costs application. I have, of course, read the written submissions and I have regard to them in deciding this application and taken into account the oral submissions that have been made.
It is true, as has been said, that the Bar Association assumed the role of calling substantial evidence, both affidavit evidence and evidence from witnesses such as Mr Husaini, and that a great deal of time was expended in these proceedings on calling evidence in relation to the relevant issues in the proceedings that are referred to in the principal judgment.
It is, however, also relevant to observe that information on several of the issues upon which evidence was called by the Association concerned matters which were either within the plaintiff's knowledge or power to voluntarily provide to the Bar Association, or to seek the co-operation of witnesses in providing information. I refer in that latter respect to Mr Husaini and Mr Barakat, with whom, on the evidence, Mr Roulstone has maintained regular communication.
The reality is that the Bar Association was placed in a position whereby information relevant to the settlement leading to Mr Xi Li's proceedings had to be obtained by the Association, as I have said in the nature of it assuming the role of investigator so as to obtain evidence on relevant factual matters. Whilst there was no obligation, as I see it, of Mr Roulstone to voluntarily provide such information in order to assist the Bar Association interviewing persons who had knowledge of such matters the fact remains that that meant that the Association was placed in the position of having to take steps to martial the evidence to place before this Court in the proceedings. In other words, although the Association's case was in a sense an affirmative case in putting allegations against the plaintiff, that occurred in circumstances to which have I have just referred.
Set out in the written submissions for the Bar Association are references to correspondence that was written on behalf of the Bar Association. I refer in particular to the letters of 1 April 2015, 24 April 2015, extracted in the written submissions para [3.15], in which effect the solicitors for the Bar Association sought the disclosure of information to assist it in establishing relevant factual matters on the issues in the proceedings. However, no responses were made by the plaintiff as sought in that correspondence. Whilst as stated above Mr Roulstone may not have been under an obligation to assist and co-operate with the Association as sought in those letters sent on behalf of the Bar Association, it does give rise to a circumstance that is relevant on the assessment of costs.
I have been referred to a number of decisions in the course of submissions. I do not refer to them in detail. They include the High Court's decision in Oshlack v Richmond River Council (1998) 193 CLR 72, a decision of South West Forest Defence Foundation Inc v the Executive Director of the Department of Conversation Land Management (No 2) [1998] HCA 35, and a decision of Barakat v Law Society of New South Wales [2014] NSWSC 773.
In so far as the decision of the High Court in Oshlack is concerned, there is no general principle to be extracted in my view from the majority judgment in that case that is applicable to the present case, other than to note the following. That case involved a decision of Richmond River Council on a development application. The majority with approval noted the approach taken by the primary judge, Stein J, involved, firstly, by characterising the nature of the litigation, concluding that the proceedings were concerned with public rather than private rights. Further, his Honour observed that there was something more to be taken into account beyond the categorisation of proceedings as public interest litigation before a successful defendant should be denied costs. His Honour then set about the task of isolating the factors referred to in the majority's judgment. The approach taken by primary judge was ultimately approved by the majority in Oshlack.
So it is in the case such as the present. Firstly, it is necessary to have regard to the nature of the proceedings and all other relevant factors including the fact that the plaintiff was the successful party to the proceedings.
Set out in the written submissions for the plaintiff, at [27], are a number of matters which are said to constitute special features. I have had regard to them. Certain of them were specifically disputed by the Bar Association, including the contention that allegations that were made by the Association were "unreasonable", a matter I have already dealt with.
It is in my view important to observe the following factors in relation to the proceedings. First, they involved a public interest factor at the centre of them. Next, the Bar Association was a proper contradictor. Thirdly, the Association was required in the circumstances to assume the burden of gathering relevant evidence to put before the Court in circumstances in which a great deal of such evidence was not volunteered by the plaintiff, in circumstances in which the Association provided Mr Roulstone with an opportunity of voluntarily providing information based upon his knowledge of the relevant events which opportunity was not taken up by him.
I consider on balance, having regard to the matters to which I have referred, the appropriate order is that each party should bear his and its own costs of proceedings and I so order.
[3]
Judgment and Orders
I have been provided with Short Minutes of Order as to the form of orders the parties are agreed on is appropriate to give effect to the reasons for judgment delivered on 25 November 2015. Accordingly, I make the following orders:
(1) The time for the appeal by the plaintiff pursuant to section 108 of the Legal Profession Act 2004 is extended to the date of the filing of the summons filed in these proceedings, namely 9 December 2014.
(2) Appeal allowed.
(3) A declaration that the deemed refusal of the plaintiff's application to the Bar Association of New South Wales for a practicing certificate made on 24 June 2014 for the period 1 July 2014 to 30 June 2015 be set aside.
(4) The plaintiff is released from his undertakings given on 23 January 2015 and 16 June 2015.
(5) The Court's Order 3 made on 16 June 2015 relating to a condition attaching to the issue of a practising certificate for the year commencing 1 July 2015 is vacated.
(6) Each party is to pay his and its own costs of the proceedings.
(7) The Summons is otherwise dismissed.
Judgment is entered accordingly.
It is noted that the plaintiff holds a current practising certificate due to expire on 30 June 2016.
[4]
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Decision last updated: 15 December 2015