1. However, the Tribunal considers that it has jurisdiction to hear and determine an application to adjourn the question of costs until the determination of any appeals that relate to its determination. We will proceed on that basis.
2. On 28 January 2025, following receipt of the applicant's request of 23 January

(a) indicate, by no later than 4pm 11 February 2025, whether he opposes the applicant's application to adjourn the question of costs until after the resolution of the Supreme Court appeal; and if so

(b) file and serve any submissions in support; and

1. if and only if respondent opposes the applicant's application to adjourn the question of costs, directing the applicant, by no later than 4pm 25 February 2025 to file any submissions limited to replying to the respondent's submissions.
2. By letter 4 February 2025 the respondent opposed the applicant's application to adjourn the question of costs. He pointed to the unlikelihood that the Court would determine it has jurisdiction to hear an appeal against a determination against a decision of the Tribunal under s 458. He said that even if the Court has jurisdiction, it is unlikely to alter the Tribunal's determination. He submitted that the applicant had not responded constructively to the invitation of the Tribunal on the issue of costs, and that she had made no submissions as to why an order for costs should not be made against her.
3. The Tribunal received the applicant's submissions as to costs under cover of an email 18 February 2025. The submissions are 191 pages in length. They first reiterated the request for the respondent's application to be stayed until the applicant's appeal to the Supreme Court is finalised. The applicant also pointed

1. About which there is presently some doubt: Wang v Sheehy [2024] TASSC 67 (Brett J); presently on appeal to the Full Court.

3 Supreme Court Rules 2000, r 676.

out that she had no legal training, and that she had not been able to obtain legal advice. Her submissions then turned to historical matters about the respondent's conduct.

1. The applicant submitted that if the Tribunal would not stay the 'cost decision', there were reasons why the application should not be granted. However, once again, the submissions were grounded in historical matters concerning the respondent's conduct. She referred to various matters relating to the Board's conduct of its investigation. At this point, we venture to repeat what was said at para [28] of our determination.

From the lengthy submissions the applicant has made in this application it is fair to say that she is unable to accept, or at least fully accept, that the respondent's conduct alleged in her first complaint in 2013 was the subject of a determination

by the Board, which forecloses it from being agitated again as either unsatisfactory professional conduct or professional misconduct.

1. At a directions hearing held on 20 March 2023 the applicant intimated that she wished to withdraw her application to the Tribunal. At that directions hearing the respondent's counsel had also indicated that, should the matter proceed and the applicant was unsuccessful, he was instructed to apply for an order for costs.
2. The Act does not allow an applicant to withdraw from proceedings without leave of the Tribunal.4 Accordingly, the matter was adjourned for 7 days to hear whether the respondent opposed or consented to the withdrawal application and whether that would be on terms as to costs.
3. At a further directions hearing held on 27 March 2023 the applicant confirmed that she was applying for leave to withdraw her application. The Tribunal chair invited the parties to make submissions and, in particular, to address the question of public interest. Submissions were received from the respondent's

solicitors on 17 April 2023. At paragraphs 17 and 18 of those submissions it was said:

1. Whilst the Respondent has been put to cost in responding to the Applicant's application to date, he does not seek an order that the Applicant pay his costs of the proceeding to date, provided he is not put to any further cost.
2. If the Tribunal will not impose a condition on granting the Applicant leave to withdraw her application that she not be at liberty to bring another proceeding in respect of the same subject matter of this Application, or, the Tribunal is not prepared to determine the Applicant's application for leave to withdraw her Application on the parties written submissions, meaning that the Respondent will be put to further cost, the Respondent reserves the right to make such application for costs as is appropriate at the conclusion of this proceeding.
3. The applicant's submissions were expected on 1 May 2023, but an extension until 15 May 2023 was given to ensure that the applicant was in possession of the Board's file.
4. On 9 May 2023 the applicant requested the Tribunal to seek disclosure by the Board of a number of documents, relating to the previous complaints she made in 2013 and 2015. At that stage the issue before the Tribunal, once properly constituted to hear it, was to consider whether leave should be given to the applicant to withdraw her application because the continuation of the proceedings was not warranted in the public interest.
5. However, on 11 May 2023 the applicant requested the Tribunal to delay the hearing until she was able to receive legal advice about a number of matters. It was then apparent that one of the issues concerned whether she should abandon her application to withdraw the proceedings.
6. On 15 May 2023 the Tribunal wrote to the parties in the following terms.

I also refer to the email Ms Stephenson to the Secretary of the Tribunal 11 May 2023.

Ms Stephenson's email contains a request for the hearing to be delayed until she is able to obtain legal advice about a number of matters to which she refers. Mr Lunn's letter informs the Tribunal, amongst other things, that should Ms Stephenson require the matter to proceed otherwise than by a determination on the written submissions (that is, by oral hearing) the practitioner will appear in person on the hearing. However, the practitioner will not be available for that purpose for a two month period following 22 May 2023.

In practical terms the matter is best resolved by setting the matter down for hearing at the end of that two month period. That will enable Ms Stephenson to seek legal advice and to consider her position.

Should Ms Stephenson decide during the intervening period to withdraw her application, she should advise the Tribunal and Mr Lunn of her decision to do so without delay.

1. By an email 1 June 2023 the applicant requested the Tribunal to postpone her application to withdraw her application. She indicated that she wished to reconsider her position.
2. The application to withdraw the proceedings was not pursued and following further directions hearings the matter was listed for hearing.
3. It is apparent, however, that, as from 20 March 2023, the applicant was aware that, should she proceed with her application, she was at risk that the respondent would apply for his costs.

1. During the conduct of this application the applicant has frequently informed the Tribunal of her lack of legal training, at the same time submitting that the respondent's conduct has contravened standards of professional conduct, by reference to inferences that she draws from the facts, but which have consistently been rejected, first by the Board, and now by the Tribunal. Of course, the applicant is at liberty to conduct her case in the way in which she sees fit, however, she is not entitled to gain an advantage over the respondent in the way in which the law is applied.
2. It was pointed out in Bhagat v Royal & Sun Alliance Life Assurance Australia Ltd5

...I accept that a court does have to make allowances for the position of litigants in person, and to try to ensure that such a litigant does not lose out because of lack of expertise; although there is a limit to what the Court can do in that regard, while

5 [1999] NSWSC 159 (Hodgson CJ in Eq).

still remaining an impartial determinant of a dispute. The Court may in those circumstances refrain from making orders against litigants in person for conduct that might be considered as justifying orders for costs against represented litigants. By the same token, litigants in person can cause great hardship and expense to other parties, through making allegations and claims that lawyers would recognise as allegations and claims that could not reasonably or even properly be made, and through making proceedings much longer and much more expensive than they otherwise would be, by not focusing accurately on the real issues in the case. Conduct of that nature by legally represented parties would often lead to orders for indemnity costs. Litigants in person may escape the consequence of indemnity costs, but I do not think that the circumstance that a party is a litigant in person is a ground for displacing the ordinary result that costs follow the event.

1. In Videnovic v Todorovic6 Hallen J said:

In Alesco Corporation Limited v Te Maari [2015] NSWSC 469 at [34], I noted that the Defendant, in that case, was unrepresented, and concluded that this fact, alone, does not mean, "they should be treated... with greater consideration than litigants who are legally represented".

Had the Defendant had continuous legal representation, the problems that he faced at the hearing might have been reduced. Yet, as was stated in Knorr v CSIRO (No 3) [2012] VSC 529, by Beach J at [28] - [29]:

"Again, as was said by Nettle and Osborn JJA in Karam v Palmone Shoes Pty Ltd '[t]here comes a point at which a self-represented litigant must be required to take responsibility for his choices'. Consistently with the principles enunciated in the Civil Procedure Act, Mr Knorr cannot be permitted to continue to subject the parties to this proceeding to significant cost and inconvenience and to add pointlessly to the load on the Court's already limited resources." (Omitting footnotes).

Also, more recently, in Duraisamy v Sydney Trains [2019] NSWCA 269, Bell P (as the Chief Justice then was) wrote at [25]:

"I would add only this, and it is to note that Senior Counsel for the respondent relies upon the High Court's endorsement in Nobarani v

Mariconte [2018] HCA 36; (2018) 92 ALJR 806 at [47] of the observation of Samuels JA in Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep):

'the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement

... An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as

6 [2023] NSWSC 242 (Hallen J)

enjoying a privileged status, would be quite unfair to the

A self-represented litigant cannot be allowed to stand behind the shield of his, or her, own lack of knowledge, especially when it continues to subject another party, or other parties, to cost and inconvenience and to add pointlessly to the load on the court's already limited resources: see, for example, Al Dakhili v Al

Kheurallah [2023] NSWSC 47 at [66] (Meek J).7

1. In its determination the Tribunal made the following findings:

1. At paragraph [43] that the complaint related to an investigation on 12 February 2015 that was concluded on 15 January 2015. The complaint was made on 30 April 2019. Thus the complaint was made more than three years after the alleged conduct, s 428(2) was engaged and the Board was correct to consider it. At [45], that having concluded that each complaint was not capable of amounting to professional misconduct s 428(2)(b) was not engaged and that the Board's only option was to summarily dismiss the complaint, because, under s 433(1)(e) it was not one that the Board had power to deal with.
2. The question for the Tribunal was whether the conduct complained of amounted to professional misconduct: [51]. It found there was no substance to either of the complaints: [65] & [76].

(4) The Tribunal may make an order requiring the complainant to pay costs if the Tribunal is satisfied that the complaint is vexatious, misconceived, frivolous or lacking in substance.

(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) The Tribunal may make an order directing that costs be taxed in accordance with the Supreme Court Rules 2000 .

1. The application to adjourn determining the question of costs must be viewed in the circumstances of the delay that will be occasioned by the consideration of the jurisdictional question by the Full Court in the matter of Wang v Sheehy, which is yet to be heard, let alone determined. We consider that to defer consideration of costs in the present case indefinitely in anticipation of that ruling is unreasonable, noting of course that the ruling does not impact upon the powers or functions of the Tribunal, only whether any right of appeal lies from their exercise or performance. Accordingly, we dismiss the application to adjourn the respondent's application for costs.

1. As to the question of costs itself, before setting out our reasons, we note that the respondent has applied for his costs to be paid on a solicitor and client basis. In Zhoa v TR & KR Shipton Pty Ltd8 the Full Court said:

Costs are normally ordered on a party and party basis. However the respondent applies for an order for its costs of the appeal on an indemnity basis. A court may order indemnity costs, or costs assessed on a basis lying somewhere between indemnity costs and party and party costs, in an appropriate case. Such an order is generally only made if "there is some special or unusual feature in the case to justify the court exercising its discretion in that way": Preston v Preston [1982] 1 All ER 41 at 58. It is only in a special case that the discretion to depart from the normal rule will be properly exercised: NMFM Property Pty Ltd v Citibank Ltd (No 2) [2001] FCA 480, 109 FCR 77; Re Wilcox; Ex parte Venture Industries Pty Ltd (No

2) (1996) 72 FCR 151 at 152-153, and 158; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 3) [2002] FCA

1294 at [22]; Colgate-Palmolive Company v Cussons Pty Limited [1993] FCA 536; (1993) 46 FCR 225 at 232-233; Ruddock v An Vadarlis (No 2) [2001] FCA

1865, 115 FCR 229 at 234; Australian Competition & Consumer Commission v Leahy

Petroleum Pty Ltd [2007] FCA 1844.

8 [2017] TASFC 5, [4] (Estcourt, Pearce & Brett JJ).

In Hamod v State of New South Wales [2002] FCA 424, 188 ALR 659, the Full Court of the Supreme Court of New South Wales said at 20:

"Indemnity costs are not designed to punish a party for persisting with a case that turns out to fail. They are not awarded as a means of deterring litigants from putting forward arguments that might be attended by uncertainty. Rather, they serve the purpose of compensating a party fully for costs incurred, as a normal costs order could not be expected to do, when the Court takes the view that it was unreasonable for the party against whom the order is made to have subjected the innocent party to the expenditure of costs."

Throughout the proceedings in the Magistrates Court, before the primary judge and before this Court, the appellants have been unrepresented. It is proper to allow for that fact. In general, courts are more reluctant to make orders for indemnity costs against unrepresented litigants: Ogawa v The University of Melbourne (No 2) [2004] FCA 1275; Bhagat v Royal & Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159. Litigants in person generally lack knowledge of the law, are unfamiliar with court practice and lack objectivity: Spalla v St George Motor Finance Ltd (No 8) [2006] FCA 1537. However, as the Court of Appeal in Western Australia pointed out in Tey v Optima Financial Group Pty Ltd [2012] WASCA 192, "[l]itigants in person have the capacity to inflict a great deal of unnecessary expense and hardship on other parties and the court should not stay its hand where such censure is properly called for". The reference to the term "censure" should not be misunderstood. Costs orders are primarily compensatory and not punitive. The position is as explained by Gaudron and Gummow JJ

in Oshlack v Richmond River Council at 89 [44], that in a case involving some relevant delinquency on the part of an unsuccessful party, the result of an order for "solicitor and client" or indemnity costs is "more fully or adequately to compensate the successful party to the disadvantage of what otherwise would have been the position of the unsuccessful party in the absence of such delinquency on its part". Subject to that qualification, the approach in Tey should be adopted.

1. We consider that the respondent's application for costs should be granted.

1. The complaints regarding the issues of substance were both misconceived, (having regard to the course the Board was obliged to take in respect of the matters being out of time) and lacking in substance (insofar as there was no evidence that the respondent, by his responses either to the Board Investigator or his evidence before the Magistrates Court, misled the Board) To the extent that the applicant sought to reagitate issues the subject of previous complaints, her complaints were also misconceived. It was clearly reiterated to her on many occasions, including during the hearing itself, that these were matters that the Tribunal did not have power to consider.
2. It is apparent from the correspondence that the applicant was put on notice, not once, but multiple times and as recently as two months prior to the hearing as to the possibility of an order for costs. She has, as submitted by the respondent, not availed herself of the opportunity to provide any meaningful submissions as to why an order should not be made.
3. We also consider that it is appropriate to make an order for solicitor client costs. Even allowing for the applicant's status as an unrepresented litigant, she should not be allowed to invoke it to avoid the consequences of the cost, delay and inconvenience she has brought on the respondent by advancing a case that, had she been properly advised, she should not have brought at all.
4. Accordingly, we make the following orders.

(1) The application to adjourn the respondent's application for costs is

(2) The applicant is to pay the costs of the respondent of and incidental to the application to the Tribunal, filed 26 May 2020, on a solicitor and client basis, in accordance with the Supreme Court Rules 2000, on the scale of costs in Schedule 1 of those Rules.