Youssef v NSW Legal Services Commissioner

Overview

1. On 30 July 2020, the Tribunal published its decision in Youssef v NSW Legal Services Commissioner [2020] NSWCATOD 85 ("the Decision"), leaving aside the question of the awarding of costs. In the exercise of its administrative review jurisdiction, the Occupational Division of the Tribunal affirmed the decision of the NSW Legal Services Commissioner ("the Commissioner") made on 18 October 2019, which found that Ms Mouna Youssef ("the Solicitor") engaged in unsatisfactory professional conduct, and reprimanding the Solicitor in respect of such conduct, under the Legal Profession Uniform Law (NSW) ("Uniform Law").
2. The Commissioner seeks costs under s 60(2) of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act"), arguing that there are "special circumstances" warranting an award of costs in his favour. The Solicitor also seeks her costs under s 60(2) of the NCAT Act.
3. For the reasons that follow, we are satisfied that s 60 of the NCAT Act governs the issue of costs in these administrative review proceedings, and we have decided that each party is to bear the party's own costs under s 60(1) of the NCAT Act.

Brief background

1. The Commissioner made a determination on 18 October 2019 that the Solicitor's conduct constituted unsatisfactory professional conduct because it fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer (see s 296, Uniform Law). The Commissioner issued a reprimand to the Solicitor under s 299(1)(b) of the Uniform Law. The conduct in question concerned the Solicitor's failure to verify the identity of her client prior to lodging a caveat on a property in Victoria purportedly on the client's behalf.
2. Under s 299(1) of the Uniform Law, the Commissioner, as the designated local regulatory authority, may, in relation to a disciplinary matter, find that the respondent lawyer has engaged in unsatisfactory professional conduct and may determine the disciplinary matter by making "(b) an order reprimanding the respondent". The Commissioner is the relevant "designated local regulatory authority" (the "DLRA"): Uniform Law, s 6(1); Legal Profession Uniform Law Application Act 2014 (NSW) ("Application Act"), Table 1, s 11(1).
3. The Solicitor exercised her statutory entitlement to seek administrative review in the Tribunal under the Administrative Decisions Review Act 1997 (NSW) ("ADR Act") of the Commissioner's determination under s 299 of the Uniform Law: Application Act, s 126(2); Uniform Law, s 314.
4. On 30 July 2020, the Tribunal affirmed the decision of the Commissioner, which found the applicant lawyer engaged in unsatisfactory professional conduct and reprimanded the Solicitor in respect of such conduct.
5. In the administrative review proceedings before the Tribunal, the parties each sought their costs under s 60(2) of the NCAT Act. While both parties contended that s 60 of the NCAT Act governed the issue of costs in the proceedings, neither party made any submissions or pointed to any authorities to support that proposition. Section 60 of the NCAT Act is the "default" costs provision for Tribunal proceedings, which applies unless there is some other statutory provision to the contrary.
6. The Tribunal made directions on 30 July 2020 for the provision of further written submissions on costs, including on the operation of cl 23 of Sch 5 to the NCAT Act and s 303 of the Uniform Law. These directions were as follows: (4) The respondent is to provide to the Tribunal and to the applicant detailed written submissions as to the operation of cl 23 of Sch 5 and s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) and s 303 of the Legal Profession Uniform Law (NSW), in relation to the awarding of costs in these proceedings, within 21 days from the date of these orders. (5) The applicant is to provide written submissions in reply to the Tribunal and to the respondent in relation to the awarding of costs in these proceedings, within 42 days from the date of these orders. (6) The submissions are to include submissions about whether an order dispensing with a hearing as to the awarding of costs should be made under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).
7. On 17 August 2020 the respondent Commissioner filed and served written submissions in accordance with the directions (4) and (6). The Commissioner provided detailed submissions as to the legislative provisions that govern costs in these proceedings, contending that s 60 of the NCAT Act governs costs in the administrative review proceedings, and not s 303 of the Uniform Law and/or cl 23 of Sch 5 to the NCAT Act. The Commissioner maintained his application for costs under s 60(2) of the NCAT Act on the basis that there are special circumstances warranting a costs order in his favour.
8. The Commissioner submits that a hearing in relation to costs can be dispensed with under s 50 of the NCAT Act by reason that the matter can be adequately determined, in the absence of the parties, on the material before the Tribunal, having regard to the guiding principle in s 36(1) of the NCAT Act and in an effort to limit further costs being incurred in the proceedings. The Commissioner seeks an order dispensing with a hearing as to the awarding of costs, pursuant to s 50(2) of the NCAT Act.
9. No submissions were received from the applicant Solicitor in accordance with directions (5) and (6). In the absence of any submissions from the Solicitor, we will assume that she maintains her position, as set out in her administrative review application dated 15 November 2019 and supporting submissions dated 7 May 2020, that s 60 of the NCAT governs costs in these proceedings, and that she continues to seek her costs under s 60(2) of the NCAT Act.
10. We are satisfied that this matter can be appropriately dealt with "on the papers", that is, in the absence of the parties, and on the material before the Tribunal. We are also satisfied that the Solicitor, despite not providing any submissions to the Tribunal in accordance with directions (5) and (6) made on 30 July 2020, has had a reasonable opportunity to provide written submissions both on the question of the awarding of costs, and on whether a hearing can be dispensed with in relation to the awarding of costs. We will make an order under s 50(2) of the NCAT Act that a hearing in relation to the applications for costs be dispensed with.

Nature of Tribunal's administrative review task

1. The Solicitor commenced review proceedings, which required the Tribunal to "stand in the shoes of" the respondent Commissioner, and decide, having regard to the material before it, "the correct and preferable decision" (see ADR Act, s 63(1)). The Tribunal's review jurisdiction when hearing an administrative review application brought under s 314 of the Uniform Law (and s 126 of the Application Act) requires the Tribunal to conduct a merits review (during which neither party carries the onus of proof); to determine the "correct and preferable decision" (ADR Act, s 63(1)) having regard to the material before it; and to make an order pursuant to s 63(3) of the ADR Act (that is, to affirm, vary, set aside and substitute, or set aside and remit). In addition, the Tribunal may make any order it considers appropriate on the administrative review: s 314(3), Uniform Law.
2. We examined the nature of the Tribunal review in these proceedings in some detail at [18] to [29] of the Decision, including discussion of the onus and standard of proof at [30] to [45]. The task of merits review involved the Tribunal determining the "correct and preferable" decision in 2 stages - first, as to whether the Solicitor engaged in unsatisfactory professional conduct, and second, if so, what order(s) should be made. There was no presumption that the Commissioner's decision of 18 October 2019 was correct or preferable.

Which legislative provisions govern costs in these proceedings?

1. Relevant legislative provisions are referred to below as convenient, and are more fully set out in the annexure to these reasons.
2. As noted earlier, costs of proceedings before this Tribunal are governed by s 60 of the NCAT Act, except where there are contrary provisions. For instance, there are a number of examples set out in Schedule 5 to the NCAT Act relating to occupations which provide for special costs regimes, including cl 23 which we consider below.
3. While both parties contend that the question of costs is governed by s 60, if cl 23 of Sch 5 to the NCAT Act and/or s 303 of the Uniform Law apply instead, then despite s 60 of the NCAT Act, the Tribunal must make orders requiring the Solicitor to pay costs of the Commissioner unless the Tribunal is satisfied that exceptional circumstances exist. Given that costs applications have been made under s 60 in the present case, the Tribunal needs to be satisfied that s 60 governs costs in these proceedings, such that the Tribunal is not compelled to make a costs order in favour of the Commissioner (absent exceptional circumstances) under cl 23(1) of Sch 5 to the NCAT Act and/or s 303 of the Uniform Law.
4. Before turning to consider the potential application to the current proceedings of both cl 23 of Sch 5 to the NCAT Act and s 303 of the Uniform Law, we set out some general principles of statutory construction.

Principles of statutory construction

1. It is uncontroversial that both the text and context of legislation are relevant to the interpretation of statutory provisions. In CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2, Brennan CJ and Dawson, Toohey and Gummow JJ stated at [88]: "[T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent."
2. In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 ("Project Blue Sky") at [78], the majority of the High Court emphasised that the text, context and "the purpose of the statute" may be relevant to ascertaining the way in which a provision should be read: "However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning."
3. More recently, the High Court summarised the relevant principles in Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39]: "This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text" (footnote omitted). So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself."
4. The provisions of a statute must not be read divorced from their legislative context, and we must endeavour to construe each provision so that it is consistent with the language and purpose of the other provisions in the statute: Metropolitan Gas Co v Federated Gas Employees' Industrial Union [1925] HCA 46; (1925) 35 CLR 449 at 455 (per Isaacs and Rich JJ); Scott v Federal Commissioner of Taxation [1966] HCA 48; (1966) 117 CLR 514 at 524 (per Windeyer J); Project Blue Sky at [69].
5. The pre-existing law and legislative history may be relevant to construing statutory provisions. In Alphapharm Pty Ltd v H Lundbeck A/S [2014] HCA 42; (2014) 254 CLR 247 the plurality of the High Court said at [42] (footnotes omitted): "The pre-existing law and the legislative history should not deflect the court from its duty to resolve an issue of statutory construction, which is a text-based activity. However, both parties recognised that the task of statutory construction in this case required some appreciation of the pre-existing law and the legislative history of relevant provisions. Undoubtedly, questions of policy can inform the court's task of statutory construction."
6. Also well-established are the twin statutory presumptions that (a) where a word or phrase is used consistently in legislation, it should be given the same meaning consistently, and (b) where a legislature could have used the same word or phrase but chose to use a different one, the intention was to change the meaning: D Pearce, Statutory Interpretation in Australia (9th ed, 2019) at [4.6].
7. When it comes to considering extrinsic materials in determining the scope of a particular provision, it is sometimes thought permissible for a court to look at prior statutory provisions that dealt with the same subject matter, in order to assist with construing a current statute: see Pearce, Statutory Interpretation in Australia at [3.36]. However, prior statutory provisions must be used with caution. As Hutley AP explained in Armstrong v Edgecock [1984] 2 NSWLR 536 at 540, "[t]he first step in the construction of [a] new provision is to construe it according to its terms and not to approach it through the fog of authorities on its predecessor": see also Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR at 425.

Application of s 303 of the Uniform Law

1. The Commissioner submits that s 303 applies only to applications made by a DLRA under s 300 of the Uniform Law and has no application to the administrative review proceedings brought under s 314 of the Uniform Law. The Solicitor does not contend to the contrary.

Statutory provisions

1. Section 303(1) of the 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. (Emphasis added)
2. Section 303 appears in Div 3 of Pt 5.4 of the Uniform Law dealing with disciplinary matters. Div 3 (headed "Role of designated tribunal") contains ss 300-305 and outlines the procedure by which a DLRA may initiate and prosecute proceedings against a respondent lawyer in the designated tribunal, relevantly for present purposes, NCAT. The DLRA is the NSW Legal Services Commissioner (s 11, Application Act, noting that s 405(2) of the Uniform Law contemplates the delegation of certain functions to the Law Society Council or the Bar Council).
3. Under s 300, the DLRA may initiate and prosecute proceedings if the DLRA is of the opinion that alleged conduct may amount to professional misconduct (s 300(1)(b)), or that the alleged conduct may amount to unsatisfactory professional conduct that would be more appropriately dealt with by the designated tribunal (s 300(1)(a)). It is noted that Div 2 of Pt 5.4 ("Determination by local regulatory authority") permits the DLRA, after an investigation, to find that a lawyer has engaged in unsatisfactory professional conduct and to determine that disciplinary matter by taking action under s 299 (which is located in Div 2 of Pt 5.4).
4. The procedure of the designated tribunal is dealt with in accordance with the Tribunal's procedures (s 301(1)). Part 11 (ss 135 to 147) of the Application Act provides the procedures contemplated by s 301 of the Uniform Law, and recognises that some procedures are covered by the NCAT Act: Application Act, s 135(1).
5. Under s 135(2) of the Application Act, "disciplinary action" is defined as an application made "under s 300 … with respect to a respondent lawyer". Section 302 of the Uniform Law empowers NCAT to make certain orders "after it has completed a hearing under this Part into the conduct of the respondent lawyer". The reference to this "Part" is a reference to Pt 5.4 of the Uniform Law, and relates to applications commenced by a DLRA pursuant to s 300.
6. An order pursuant to s 302 of the Uniform Law requires a finding that "the lawyer is guilty of unsatisfactory professional conduct or professional misconduct". Section 303(1) follows s 302 and similarly requires a finding that the lawyer is "guilty of unsatisfactory professional conduct or professional misconduct" before it can apply.

Submissions

1. The Commissioner submits that s 303 of the Uniform Law dealing with costs does not apply to administrative review proceedings brought by a lawyer under s 314 of the Uniform Law. Pt 5.4 (including s 303) of the Uniform Law is intended to apply only to proceedings commenced by the DLRA pursuant to that Part (specifically, s 300 of the Uniform Law). This interpretation is also said to be consistent with the wording of s 303(2)(a), which appears to refer to proceedings commenced by a DLRA.
2. In his submissions the Commissioner distinguishes between the Tribunal's original jurisdiction when hearing an "Application for Disciplinary Findings and Orders" pursuant to s 300 of the Uniform Law, and the Tribunal's administrative review jurisdiction when hearing an administrative review application pursuant to s 314 of the Uniform Law.
3. When hearing an application brought under s 300, this "original" jurisdiction requires the Tribunal to determine whether the relevant DLRA (which carries the onus of proof) has proven its case to the requisite standard; to determine whether the respondent lawyer has engaged in (or is "guilty of") unsatisfactory professional conduct or professional misconduct and to make that formal "finding" (which enlivens s 303(1), Uniform Law); and if a relevant finding is made, determine any appropriate penalty/protective order(s) pursuant to s 302, Uniform Law.
4. On the other hand, when hearing an administrative review application brought under s 314, Uniform Law, the review jurisdiction requires the Tribunal to conduct a merits review (during which neither party carries the onus of proof); determine the "correct and preferable decision" (s 63(1), ADR Act) having regard to the material before it; and make an order pursuant to s 63(3) of the ADR Act as opposed to a "finding" or a protective order.
5. The Commissioner further submits that a review application may result in a decision being varied under s 63(3)(b) of the ADR Act, or substituted under s 63(3)(c) of the ADR Act. Where a DLRA's decision made under s 299 Uniform Law is varied or substituted, s 66(2)(a) of the ADR Act provides that any such variation or substitution is taken to be the decision of the administrator (being the DLRA), rather than the Tribunal.
6. The Commissioner emphasises that an application under s 300, Uniform Law will usually seek formal "findings" of unsatisfactory professional conduct and/or professional misconduct, as well as one or more orders under s 302 of the Uniform Law, which (unless dismissed) will usually culminate in the Tribunal's relevant findings and orders. This is in contrast to an administrative review application under s 314 which will not usually seek or require any formal "finding" or order under s 222 (as opposed to an order pursuant to s 63(3) of the ADR Act).

Consideration

1. The present proceedings in the Tribunal were not commenced by a DLRA pursuant to Pt 5.4 of the Uniform Law; they were commenced by the Solicitor pursuant to a statutory right to seek a review under Part 5.6 of that Law (specifically, s 314(1)(b)). This meant that NCAT did not conduct a hearing of an "application for disciplinary findings and orders" to determine whether the applicant was "guilty of" unsatisfactory professional conduct. The respondent Commissioner (as DLRA) did not bring before the Tribunal any allegation that he was required to prove. Rather, the applicant lawyer commenced administrative review proceedings, which required the Tribunal to "stand in the shoes of" the respondent Commissioner, and consider, having regard to the material before it, the "correct and preferable decision".
2. We agree with the Commissioner's submission that s 303 relates to costs in disciplinary proceedings brought under s 300, and not to administrative review proceedings brought under s 314. We accept that the Tribunal's administrative review task is distinguishable from its task when making a formal "finding" referred to in s 302(1), Uniform Law (which enlivens s 303(1), Uniform Law).
3. Both the text of s 303, and the relevant statutory context, support the proposition that s 303 does not govern costs in administrative review proceedings, as we touch on below.
4. Section 300 uses the language of "initiate and prosecute", and this language would seem to relate to the use of the word "guilty" in s 303(1). In affirming the Commissioner's decision under s 63(3)(a) of the ADR Act, NCAT did not, and was not required to, make a finding of "guilt", nor any other formal findings. The text of s 303 generally, and s 303(1) specifically, would appear to relate only to disciplinary proceedings brought in the Tribunal by the DLRA against a lawyer under s 300, Uniform Law.
5. An interpretation of s 303 which confines its operation to disciplinary proceedings brought to the Tribunal under s 300 is also consistent with the wording of s 303(2)(a). Under that subsection, NCAT may make costs orders against a lawyer found not guilty of unsatisfactory professional conduct or professional misconduct, if satisfied that the sole or principal reason why the proceedings were instituted in NCAT was a failure of the lawyer to cooperate with the DLRA. This would seem to assume that the relevant proceedings are those brought to NCAT by the DLRA, ie disciplinary applications under s 300. To similar effect, s 303(3) contemplates costs orders in certain circumstances against a DLRA where the lawyer concerned is not guilty of unsatisfactory professional conduct or professional misconduct - again, this would seem to assume that the proceedings in question are those brought by a DLRA under s 300, Uniform Law.
6. The legislative context surrounding s 303 also supports the view that s 303(1) does not apply to govern costs in administrative review proceedings brought by a lawyer under s 314 (located in Pt 5.6) of the Uniform Law. We mention several contextual indicators, without seeking to provide an exhaustive analysis.
7. The placement of s 303 in Div 3 of Pt 5.4 is significant. Where an Act is divided into Parts, this can be taken into account in determining the meaning/scope of application of a statutory provision in a Part. The High Court has observed that the Part and Division of a statute will often be a significant aid in its construction: R v Credit Tribunal; Ex parte General Motor Acceptance Corporation (Australia) [1977] HCA 34; (1977) 137 CLR 545 at 561. As further observed in Re Commercial Bank of Australia Ltd (1893) 19 VLR 333, Holroyd J said at 375: "When an Act is divided and cut into parts or heads, prima facie it is, we think, to be presumed that those heads were intended to indicate certain groups of clauses as relating to a particular object… The object is prima facie to enable everybody who reads to discriminate as to what clauses relate to such and such a particular subject matter [sic]. It must be perfectly clear that a clause introduced into a part of an Act relating to one subject matter is meant to relate to other subject matters in another part of the Act before we can hold that it does so." See also Australian Postal Corporation v Sinnaiah (2013) 213 FCR 449; [2013] FCAFC 98 (example of where the scope of the provision in question was derived from the Part, rather than from the Act as a whole); Pearce, Statutory Interpretation in Australia at [4.4].
8. We also note the discussion in Pearce of the "order" in which sections should be read (at [4.5]). In Patman v Fletcher's Fotographics Pty Ltd (1984) 6 IR 471 at 474-5 in the NSW Court of Appeal, Priestley JA said: "I see no reasons why the Act should not be read in the ordinary way in which a document is read, that is, from the beginning onwards. In the ordinary course of reading, s 4, although of course it must be read with both what precedes it and what follows it, must be read after s 3 and further, in the ordinary course it seems to me that it must be read in the light of s 3. It is preposterous, in the literal sense, to read s 4, make assumptions concerning its purpose based on its language, without reference to what has preceded it and then to read s 3 in light of the purpose thus discerned in s 4. A much sounder way of reaching what the draftsman's purpose was is to read his Act in the sequence in which he wrote it." (emphasis added0 This approach supports reading s 303 of the Uniform Law in light of the immediately preceding provisions.
9. It seems clear, from the language of the other sections in Div 3 of Part 5.4, that those provisions were designed to relate specifically to proceedings commenced under s 300(1), located at the beginning of that Division. It would be a strange result if, in the midst of such provisions, s 303(1) were to be construed as relating to any and all proceedings in the designated tribunal that might be provided for elsewhere in the Act.
10. The fact that s 300(1) provides for proceedings commenced by the DLRA against a lawyer, and that s 302(1) is limited to hearings "under this Part", are indicators that s 303 was intended to be similarly limited in its application.
11. In our view, the phrasing in s 302(1) ("a hearing under this Part into the conduct of a respondent lawyer") indicates that the provisions within Part 5.4 are to be read together, as applying to certain types of proceedings in the designated tribunal and not others (i.e. those provided for in Part 5.6).
12. We also note that the Uniform Law makes separate provision for administrative review proceedings (under s 314) and disciplinary proceedings (under s 303) in other respects. While s 302(1) provides for the orders that the Tribunal can make "after it has completed a hearing" under Part 5.4 (i.e. under s 300(1)), s 314(2) provides separately for the orders the Tribunal can make on an "appeal or review" under s 314(1). This is a further indicator that the provisions in Parts 5.4 and 5.6 are intended to be read as applying to separate types of proceedings, where the Tribunal's power to make orders is separately provided for.
13. Section 302(1) makes clear that a finding that a lawyer is "guilty" of unsatisfactory professional conduct or professional misconduct may be made by the Tribunal "after it has completed a hearing under this Part". The references in s 302(3) and (5) to the Tribunal making findings of "guilt" also match closely with the language used in s 303(1). These are further indicators that ss 302 and 303 should be read together, such that the costs provision in s 303(1) should be limited in its application to a "hearing under this Part", after which "guilt" has been found.
14. We also note the reference in s 305(2) to "proceedings… instituted in the designated tribunal in relation to the complaint". Proceedings commenced by a DLRA under s 300(1) would clearly be proceedings "in relation to [a] complaint", having regard to the references in s 300(2) to "the complainant" and "the complaint". Proceedings commenced by an aggrieved lawyer under s 314 would not be described in this way, as administrative review is sought of the DLRA's orders and findings, rather than directly of or "in relation to" an underlying complaint.
15. One countervailing factor to this contextual analysis is s 301, which is expressed as applying to "[p]roceedings initiated under this Chapter". "Chapter 5 - Dispute resolution and professional discipline" includes both Part 5.4 and Part 5.6, such that s 301 could be seen as applying to proceedings commenced under both s 300 and s 314. On that view, s 303 could be capable of a similarly broad application. It is not necessary in this case to resolve the scope of application of s 301. However, given that the word "initiated" in s 301 is also used to describe proceedings brought under s 300(1), in contrast to the words "seek a review" used in s 314(1), it is arguable that s 301 was also intended to relate only to s 300 proceedings.
16. In any case, the weight of contextual factors, particularly within Div 3, Pt 5.4, support construing s 303 as applying to proceedings under s 300(1) in Pt 5.4, and not to proceedings commenced under s 314 in Pt 5.6.

Conclusion on application of s 303, Uniform Law

1. In summary, we think it clear from text of s 303, considered in its statutory context, that s 303 governs costs in disciplinary proceedings brought by a DLRC under s 300, and not administrative review proceedings brought by a lawyer under s 314. Accordingly, we are satisfied that s 303 of the Uniform Law does not apply to govern the question of costs in these proceedings.

Application of clause 23 of Schedule to the NCAT Act

1. We now turn to whether cl 23(1) of Sch 5 to the NCAT Act applies to these administrative review proceedings, rather than the general NCAT costs provision in s 60 of the NCAT Act. Clause 23 uses different language to s 303 in at least one respect, and the clause is potentially of wider application than s 303 of the Uniform Law. There is arguably some confusion caused by the wording of cl 23, its presence in Schedule 5 to the NCAT Act, and the relationship between cl 23 of Sch 5 and s 303.

Statutory provisions

1. Part 4 of Schedule 5 (Occupational Division) of the NCAT Act provides for "special provisions relating to occupations", and includes cl 23 (which is set out in full in the annexure). Clause 23(1) reads as follows: 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. (Emphasis added) Clause 23 of Sch 5 commenced on 20 November 2013, as part of the legislative arrangements with regard to the establishment of NCAT. NCAT began operations on 1 January 2014.
2. The functions of NCAT in relation to the Uniform Law, including its administrative review jurisdiction, are allocated to the Occupational Division: NCAT Act, Sch 5, cl 4(3)(d) (See also the Note at the end of cl 4(1) which states: "[t]he functions allocated by this subclause include the function of exercising the administrative review jurisdiction of the Tribunal in relation to the specified legislation" - the specified legislation includes the Uniform Law.)

Submissions

1. The Commissioner has provided detailed written submissions which, in essence, argue that: 1. cl 23 of Sch 5 is a successor provision to the former s 566 of the Legal Profession Act 2014 (NSW) (now repealed) ("LPA") and should be interpreted in the same way that that section was interpreted; 2. while there was some inconsistency in previous Tribunal decisions, the former s 566, LPA did not extend to the administrative review jurisdiction; 3. cl 23 of Sch 5 duplicates the effect of s 303 of the Uniform Law and does not have some additional operation; and 4. to extend cl 23 of Sch 5 to administrative review proceedings could have inadvertent consequences.

Submissions as to (a) and (b)

1. Putting aside minor variations as to form, the substance of cl 23 of Sch 5 is the same as the former s 566, LPA. Prior to its repeal on 1 January 2014, s 566(1) LPA provided as follows: 566 Costs (1) The Tribunal must make orders requiring an Australian legal practitioner 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. (Emphasis added) The full text of both cl 23 and the former s 566, LPA is included in the annexure.
2. The Commissioner submits that cl 23 of Sch 5 was intended to preserve s 566, LPA; and that s 566 was intended to apply only to "disciplinary applications" made by the Commissioner or a Council pursuant to s 551, LPA (as opposed to administrative review applications).
3. The former s 566, LPA appeared in Pt 4.8, LPA, which dealt with proceedings in the Tribunal (the ADT, later NCAT). The Commissioner submitted that those proceedings were commenced pursuant to s 551, LPA (the s 300, Uniform Law equivalent) and substantive orders were generally made pursuant to the powers provided by s 562, LPA (s 302, Uniform Law equivalent). The relevant Explanatory Note to the Legal Profession Bill 2004, included the following: Part 4.8 (clauses 551-569) provides a scheme for the commencement, hearing and determination of proceedings before the Tribunal in connection with a complaint. Proceedings are commenced by the Commissioner or a Council by way of application (referred to in the Division as a "disciplinary application" to distinguish it from other applications). … The Division specifies a range of orders that the Tribunal may make when determining proceedings on a disciplinary application, including… ancillary or other orders…" [emphasis added by respondent].
4. The Commissioner notes that the balance of cl 23 mirrors the balance of s 566, LPA; he argues this suggests that cl 23 was intended to preserve the Tribunal's jurisdiction to make a costs order on the same basis as s 566 of the LPA, rather than amend (or extend) that jurisdiction to potentially mandate a costs order in administrative review applications. The Commissioner argues that this interpretation is consistent with the Second Reading of the relevant amendment bills (Civil and Administrative Tribunal Amendment Bill 2013 and Civil and Administrative Legislation (Repeal and Amendment) Bill 2013, per the Hon G Smith, Attorney-General, NSW Legislative Council Hansard, 30 October and 13 November 2013). In the Second Reading speech the then Attorney-General said: "Special requirements will also be preserved in relation to professional discipline applications".
5. The Commissioner further argues that the "range of orders", referred to in the extract from the Explanatory Note above, appears to include any order under s 566, LPA, which suggests that s 566 was intended to apply "when determining proceedings on a disciplinary application".
6. The Explanatory Note may be considered to assist in ascertaining the intention of s 566 LPA: Interpretation Act 1987 (NSW), ss 34(1) and 34(2)(e).
7. The Commissioner also points to the operation of the former s 88 of the Administrative Decision Tribunal Act 1997 (now repealed) ("ADT Act"). Section 88 was repealed on 1 January 2014 at the same time as the repeal of s 566, LPA.
8. Section 88 of the former ADT Act was in similar terms to s 60, NCAT Act, to the extent that costs in the former ADT did not necessarily follow the event. Section 88, ADT Act did not use the term "special circumstances", which now appears in s 60, NCAT Act. However, s 88, ADT Act required the Tribunal to be satisfied that "it is fair" to award costs "having regard to" various factors, such as the conduct of the parties.
9. Section 88 of the former ADT Act operated "subject to … any other Act or law…", which included s 566, LPA: ADT Act, s 88(1A)). Similarly, s 60 NCAT Act presently operates "subject to enabling legislation and the procedural rules": NCAT Act, s 35.
10. Section 88(3), ADT Act also precluded the ADT from making a costs order in relation to proceedings for an original decision "unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs". The Commissioner submits that, prior to 1 January 2014, s 566, LPA provided that jurisdiction.
11. The statutory right to review a reprimand, now found in s 314 of the Uniform Law, was formerly found in Part 4.5, s 540(5), LPA. The ADT Act applied to those reviews and the only costs provision in the ADT Act was s 88. The ADT Act did not contain any provision equivalent to what now appears in Schedule 5, cl 23, NCAT Act.
12. The Commissioner referred the Tribunal to a number of previous Tribunal and Court decisions regarding s 540(5), LPA (being the predecessor to s 314, Uniform Law). The Commissioner noted however that caution should be exercised before relying on the authorities referred to in the current proceedings, since s 540, LPA applied a different test. The test under s 540, LPA required satisfaction that there was a "reasonable likelihood" that the Tribunal would make a particular finding: whereas s 299 of the Uniform Law empowers a DLRA to make a "finding" that a lawyer has engaged in unsatisfactory professional conduct.
13. Subject to this caution, the Commissioner referred to the following cases in its submissions which have dealt with costs in administrative review applications: a. Kazas-Rogaris v Council of the Law Society of New South Wales (No 2) [2015] NSWCATOD 7 (at [22]) applied s 88, ADT Act to the question of costs; s 566, LPA was not referred to. b. Vertzayias v Council of the Law Society of NSW [2012] NSWADT 268 confirmed the Law Society's decision and made a costs order against the applicant lawyer in that matter, however the statutory basis for that costs order is unclear on its face. c. Strikis v Legal Services Commissioner [2012] NSWADT 68 (at [52]) applied s 88, ADT Act to the question of costs; s 566, LPA was not referred to. d. Morris-Corkill v The Law Society of New South Wales [2009] NSWADT 43 affirmed the Law Society's reprimand but did not make a costs order; neither s 566, LPA nor s 88, ADT Act were referred to. e. Margiotta v Law Society of New South Wales (No 2) [2007] NSWADT 65 confirmed 'the finding of unsatisfactory professional conduct' but varied the reprimand to a caution, and made no order as to costs (see [104] and [105]; neither s 566, LPA nor s 88, ADT Act were referred to. f. Donaghy v Legal Services Commissioner (No 3) [2014] NSWCATOD 33 ("Donaghy No 3") - whilst not expressly stated, appears to have applied the terms of s 88, ADT Act (eg, see [34]). g. Donaghy v The Council of the Law Society of NSW (No 4) [2014] NSWCATOD 77 ("Donaghy No 4"), in which the same panel as sat in Donaghy No 3 observed at [8] that s 566 LPA applied to those review proceedings. However, the Court of Appeal subsequently confirmed that s 88 of the ADT Act was the applicable costs provision in the Tribunal proceedings: Donaghy v Council of the Law Society of NSW (No 2) [2015] NSWCA 224 at [105]. The Court of Appeal did not make any comment about s 566, LPA.
14. The Commissioner submits that s 566 of the former LPA, like s 303 of the Uniform Law, was intended to apply only to applications made by a DLRA under the former s 551, LPA (and s 300, Uniform Law), and not to administrative review applications.

Submissions as to (c)

1. The Commissioner submits that cl 23 of Sch 5 is intended to apply in the same way as s 303 of the Uniform Law. Clause 23(2)(a) is in similar terms to s 303(2)(a) of the Uniform Law, and "is consistent with an intention to apply to proceedings commenced by a DLRA (described in cl 23(2)(a) as "the Commissioner or a Council"); cl 23(1) can also be distinguished from cl 26(1)(a) of Sch 5 which specifically refers to the Tribunal "affirming a disciplinary finding", rather than making one.
2. The Tribunal's administrative review task is distinguishable from its task when making a formal "finding" referred to in s 302(1), Uniform Law (which enlivens s 303(1), Uniform Law and cl 23(1), Sch 5, NCAT Act).
3. The Commissioner acknowledges that the effect of his submission is that s 303(1), Uniform Law duplicates the effect of cl 23(1) of Sch 5, NCAT Act. He says this may be explained by the fact that the provisions in cl 23 of Sch 5 continued to apply on and after 1 July 2015 (being the commencement date of s 303, Uniform Law).

Submissions as to (d)

1. As a further point, the Commissioner contends that if the Tribunal prefers an interpretation to the effect that either cl 23(1) of Sch 5 or s 303 apply to s 314 applications, this could result in mandatory costs orders being made against a partially (or even fully) successful review applicant (subject to there being no evidence of "exceptional circumstances"). It seems unlikely that such a result was intended, particularly in light of the legislative history to which the Commissioner referred.

Consideration

1. Whether cl 23(1) of Sch 5 applies to govern costs in these proceedings depends on an analysis of the text of cl 23(1) in its statutory context. While not determinative, legislative history (including previous statutory provisions) and extrinsic material may provide assistance as an aid to construction of cl 23.
2. As we said earlier, there is arguably some confusion caused by the wording of cl 23, its presence in Schedule 5 to the NCAT Act, and the relationship between cl 23 of Sch 5 and s 303.

Text and legislative context

1. Clause 23(1) uses different language to s 303, Uniform Law in at least one respect, and cl 23(1) on its face would seem to have wider application than s 303. Unlike s 303, cl 23(1) does not refer to "guilt", but refers instead to circumstances where NCAT "has found" the respondent lawyer to have "engaged in unsatisfactory professional conduct or professional misconduct". We acknowledge that NCAT in its administrative review jurisdiction does not make formal disciplinary "findings" in the same way it does in the case of applications brought by a DLRA under s 300, Uniform Law. However, arguably part of the task in reaching the "correct and preferable decision" under s 63(3), ADR Act is to make a finding, on the material before it, as to whether the lawyer in question has engaged in unsatisfactory professional conduct. Before making an order which affirmed the Commissioner's disciplinary decision in the current matter, this Tribunal looked at the issues and evidence afresh and "found" that the Solicitor engaged in unsatisfactory professional conduct.
2. Unlike s 303, cl 23 is not located in a Part of an Act which is directed solely to disciplinary applications brought to the Tribunal by a DLRA. Rather, cl 23 is located in a Schedule addressing special requirements for Occupational Division matters in the NCAT, including special costs provisions that override the general "default" costs provision for Tribunal proceedings in s 60. Clause 23 is a provision that potentially applies to all proceedings in NCAT arising under the Uniform Law, including matters in which the Tribunal exercises administrative review jurisdiction. Both cl 4(3)(d) and the Note at cl 4(1) of Sch 5 (see [59] above] might been seen to support the view that cl 23 is intended to operate in administrative review proceedings.
3. There is no express indication as to whether the Legislature intended the special costs provisions in cl 23, and relevantly cl 23(1), as a mandatory costs provision, to include or exclude administrative review proceedings brought by a lawyer under s 314, Uniform Law. (This can be contrasted to cl 26(1)(a) of Sch 5 to the NCAT Act in the case of veterinary practitioners, which provides expressly for a mandatory costs order to be made against a practitioner where NCAT affirms a disciplinary decision of the administrator - see further below.)
4. Against the view that, in a broad sense, the Tribunal "has found" the Solicitor to have engaged in unsatisfactory professional conduct where affirming the earlier disciplinary finding and action taken by the Commissioner in this case, it is evident from the nature of administrative review, and the powers set out in the ADR Act, that the Tribunal does not make the disciplinary decision itself through the exercise of "original" jurisdiction. If instead of affirming the Commissioner's decision, the Tribunal had instead varied his decision, for example by stipulating that the Solicitor undertake mandatory training in addition to a reprimand, then by virtue of s 66(2) of the ADR Act, that variation would be taken to be a decision of the Commissioner, not of the Tribunal (other than for the purposes of the administrative review). This reinforces that the Tribunal does not exercise original jurisdiction, and does not make formal disciplinary findings itself.
5. There are also textual indications against the view that cl 23(1), and cl 23 more generally, extends to the administrative review proceedings brought by the Solicitor in this case.
6. One, it is by no means clear that the reference in cl 23(1), and cl 23 more generally, to "a respondent lawyer" or "the respondent lawyer" is intended to apply to the Solicitor, such that a costs order against her is mandated by cl 23(1) of Sch 5.
7. Here, it is the Solicitor who has brought the review application to the Tribunal under s 314, Uniform Law. Relevantly, s 314 confers on the "respondent lawyer" a right of review in the designated tribunal of the determination of a DLRA made under s 299. Section 299 refers to the "respondent lawyer", and there are various other references to the "respondent" or "respondent lawyer" in Pt 5.2, Uniform Law dealing with complaints made about lawyers, and investigations into those complaints by the DLRA. The Solicitor may be described as the "respondent lawyer" in an investigation and disciplinary findings by a DLRA under Div 2 of Pt 5.4 (incorporating s 299), and the review right in s 314 is conferred on the "respondent lawyer". However, it is not correct to continue to characterise the Solicitor as the "respondent lawyer" in the administrative review proceedings she instituted in the Tribunal in relation to the DLRA's determination of 18 October 2019. The costs applications of the Solicitor and of the Commissioner in the current proceedings relate to the review proceedings in the Tribunal, not to any earlier disciplinary investigation or action by the Commissioner as the DLRA.
8. That cl 23 uses the term "respondent lawyer", and not the broader term of "lawyer", suggests that the clause was intended to apply to circumstances where the DLRA has brought an application to NCAT under s 300, Uniform Law for disciplinary findings and orders. In those circumstances, it is clear that the DLRA is the applicant and the lawyer in question is the "respondent lawyer".
9. Two, cl 23(2)(a) and (b) also seem to relate to proceedings commenced in the Tribunal by a DLRA, which are applications for disciplinary findings and orders pursuant to Pt 5.4 (specifically s 300 of the Uniform Law.) Under cl 23(2)(a), NCAT may make costs orders against a respondent lawyer whom it has not found to have engaged in unsatisfactory professional conduct or professional misconduct if satisfied that the sole or principal reason why the proceedings were instituted in NCAT was a failure of the lawyer to cooperate with the DLRA - this subsection would seem to assume that the relevant proceedings are those brought to NCAT by the DLRA, which are disciplinary applications under s 300. (Similar arguments apply to the construction of s 303, Uniform Law). So, the interpretation that cl 23(1) is intended to apply to disciplinary proceedings brought by the DLRA to the Tribunal (and not also to administrative review applications brought by the lawyer in question against the DLRA) is consistent with the language of cl 23(2)(a).
10. Three, and turning to Schedule 5 more generally, the language of cl 23(1) can be contrasted with the language of cl 26(1), both provisions being mandatory costs order provisions which displace the "default" costs provision, s 60, governing Tribunal proceedings. Clause 26 would seem to be a significant indicator that the Legislature turned its mind to the circumstances in which mandatory costs order are to be made in administrative review proceedings brought to the Tribunal by a relevant practitioner.
11. Section 48 of the Veterinary Practice Act 2003 (NSW) provides for circumstances in which a relevant person may apply to NCAT for administrative review of disciplinary findings and associated action taken by the Veterinary Practitioners Board. Clause 26(1)(a) of Sch 5 to the NCAT Act contemplates a mandatory costs order, despite s 60, against a veterinary practitioner in Tribunal proceedings (unless the Tribunal is satisfied that exceptional circumstances exist) where the Tribunal affirms a disciplinary finding against a practitioner in proceedings for the purposes of s 48 of the Veterinary Practice Act.
12. No similar provision is included in cl 23 in relation to the circumstances where the Tribunal "affirms" a disciplinary finding against a lawyer in proceedings for the purposes of s 314, Uniform Law and s 126, Application Act (ie provisions conferring merits review rights). It is arguable that the Legislature can be taken to have deliberately chosen not to use the same or similar language in relation to legal practitioners in cl 23. We referred earlier, in our summary of relevant principles, to the well-established statutory interpretation principle that where a legislature could have used the same word or phrase but chose to use a different one, the intention was to change the meaning: Pearce, Statutory Interpretation in Australia at [4.6]. At the very least, it is clear the Legislature turned its mind to the concept of the Tribunal "affirming" disciplinary findings, as opposed to making findings itself, elsewhere in Schedule 5, and did not apply the same phrasing in cl 23.
13. In sum, the textual and contextual factors mentioned above tend to indicate that cl 23(1) was not intended to extend to administrative review proceedings brought in the Tribunal by a lawyer against a DLRA. That said, it is not entirely clear whether s 303 and cl 23 were intended to duplicate each other, or whether cl 23 has an additional area of operation. However, the legislative history we relate below offers an explanation.

Legislative history and extrinsic material

1. While not determinative, consideration of the legislative history and predecessor provisions may provide some assistance in the present circumstances. That history tends to confirm the textual and contextual indicators referred to above. Further, the history would seem to shed some light on the apparent duplication of s 303 and cl 23 of Sch 5.
2. In his written submissions, the Commissioner provided detailed information about the former s 566 of the LPA and s 88 of the ADT Act, contending that cl 23 was intended to preserve the costs jurisdiction of s 566, and that, properly construed, the former s 566 of the LPA did not extend to govern costs in administrative review proceedings brought under s 540 of the LPA (predecessor provision to s 314 of the Uniform Law).
3. Section 566, LPA was repealed on 1 January 2014, shortly after the commencement in November 2013 of the "special" costs provision now found in cl 23 of Sch 5 to the NCAT Act. It seems tolerably clear that, despite some differences, cl 23 was modelled on the costs jurisdiction found in s 566 of the LPA. We note that s 303 of the Uniform Law did not commence operation until 1 July 2015.
4. It would seem from the authorities to which we were referred by the Commissioner that there was some lack of consistency in Tribunal decisions about whether the former s 566, LPA or the former s 88, ADT Act applied to govern costs in administrative review applications brought under s 540, LPA. However, the Court of Appeal in Donaghy v Council of the Law Society of NSW (No 2) [2015] NSWCA 224 ("Donaghy No 2") at [105] expressed the view that the former s 88, ADT Act applied to govern costs in the administrative review proceedings brought by the solicitor in question to the Tribunal.
5. There is no need to set out the complicated history of that litigation, except to say that the merits review jurisdiction exercised by the Tribunal was under s 540, LPA. The Court of Appeal overturned the Tribunal's orders in Donaghy No 3 (the Tribunal's substantive decision), and departed from the view of the Tribunal in Donaghy No 4 (the Tribunal's costs decision) at [8] where the Tribunal had assumed that the relevant costs provision to be applied was s 566, LPA "[b]ecause the hearing of the substantive proceedings and both interim applications commenced before commencement of the [NCAT Act]". The Court of Appeal stated that the "relevant statutory regime", prior to the commencement of the NCAT Act, was governed by s 88, however, did not provide any reasoning as to why s 88 applied, and did not mention s 566.
6. While there are some differences between the former s 566, LPA and cl 23 of Sch 5, in our view those differences are not material to the question presently before us. The Court of Appeal's decision in Donaghy No 2 provides some guidance, and suggests that it is the modern equivalent of the former s 88, ADT Act, being s 60 of the NCAT Act, which applies to govern the issue of costs in administrative review proceedings brought by legal practitioners pursuant to s 314, Uniform Law.
7. The legislative history described by the Commissioner in his written submissions also seems to shed light on the apparent duplication of the effect of cl 23(1) with that of s 303. As the Commissioner submitted, the apparent duplication may be explained by the fact that the provisions in cl 23 of Sch 5 commenced on 20 November 2013, and continued to apply on and after 1 July 2015 (being the commencement date of s 303, Uniform Law).

Inadvertent consequences

1. The Commissioner also argued that if the Tribunal prefers an interpretation to the effect that cl 23(1) (or s 303) applies to s 314 review applications, this would set a precedent which could result in mandatory costs orders being made against a partially (or even fully) successful review applicant (subject to there being no evidence of "exceptional circumstances").
2. The Commissioner gave the following example - a lawyer may partially succeed (for example, a reprimand may be varied to a caution) or may be entirely successful such as where a lawyer seeks only a variation of the protective order, without challenging the finding). In either case, the affirmed s 299 "finding" of unsatisfactory professional conduct could inadvertently enliven cl 23(1) of Sch 5 (or s 303(1)) and/or, if so interpreted, with the result being a mandated costs order. The Commissioner says it seems unlikely that the costs provisions were intended to limit the Tribunal's discretion and/or mandate a cost order against an applicant lawyer in such circumstances.
3. We do not disagree with the Commissioner's submission that it seems unlikely that such a result would have been intended.

Conclusion on application of cl 23(1) of Sch 5 to NCAT Act

1. In conclusion, while we think the clause would benefit from drafting clarification, we think it is tolerably clear that cl 23(1) of Sch 5 was not intended to govern costs in administrative review proceedings brought under s 314 of the Uniform Law and s 126 of the Application Act, and does not so apply.

Application of s 60, NCAT Act and determination of costs applications

1. Given our views expressed above in relation to s 303 of the Uniform Law and cl 23(1) of Sch 5 to the NCAT, we agree with the parties that s 60 of the NCAT Act governs costs in these administrative review proceedings.

Legal principles

1. Under s 60(1), the general rule in relation to costs in the Tribunal is that each party is to bear the party's own costs. Section 60(2) provides the Tribunal with discretion to award costs if it is satisfied that there are special circumstances warranting such an order. In deciding whether there are special circumstances, the Tribunal may have regard to the factors in s 60(3), which provides as follows: (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.
2. The general rule that parties should bear their own costs is designed to promote access to justice generally and to minimise the overall level of costs in tribunal proceedings as far as is practicable: Choi v University of Technology Sydney [2020] NSWCATAP 18 at [41]. It is accepted that where a party is unsuccessful in the party's application before the Tribunal, this alone will not amount to special circumstances in favour of the successful party.
3. Special circumstances are circumstances that are out of the ordinary, but need not be those which are exceptional or extraordinary: Commissioner for Fair Trading v Edward Lees Imports Pty Ltd (No 2) [2019] NSWCATAP 222 at [8]. It does not follow that a costs order should be made because one or more of the factors in s 60(3) are made out. Even if satisfied that there are special circumstances, the Tribunal must further be satisfied that they are circumstances "warranting an award of costs": Fitzpatrick Investments Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAD 103.
4. In Abughazaleh v Commissioner of Police, NSW Police Force; Sydney Training Academy Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAD 30 ("Abughazaleh"), the Tribunal provided some useful guidance at [28]-[30] about the meaning of "frivolous" and "vexatious" in applying s 60(3)(e), in the context of administrative review proceedings: "30. … the words "frivolous" and "vexatious," used together, may signify that the application lacks a legal foundation or that it is "not legally properly based": Fox v Commissioner of Police, New South Wales Police Force [2016] NSWCATAD 77 at [26], [28]. The term "vexatious" "can include proceedings brought with the intention of annoying or embarrassing or harassing the other party, or for some collateral purpose other than having the court or tribunal adjudicate on the issues raised by the proceedings, or, irrespective of the motive of the litigant, if the proceedings are 'so obviously untenable or manifestly groundless as to be utterly hopeless'": Filsell and Comcare [2009] AATA 90 at [33], cited in Fox v Commissioner of Police, New South Wales Police Force [2016] NSWCATAD 77 at [28]."
5. In that case, the Tribunal found it was "not satisfied that the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance", saying at [31]: "31. …. The applicants sought a merits review of the decisions concerning their security licences, as they were entitled to do. Whilst many of the claims made were untenable, the applications did not lack a legal foundation. Nor were they brought for a collateral purpose or to annoy the Commissioner. I am not persuaded that the proceedings were "utterly hopeless" in the requisite sense. It is unlikely that they would have been summarily dismissed at the outset, should the Commissioner have applied for such an order."
6. In Walker v Pittwater Council [2016] NSWCATAD 78, the Tribunal stated at [22]-[24], after considering relevant authorities, that an application may be "lacking in substance" if it is based on "an untenable proposition of law or fact".
7. The onus is on the party seeking an order for costs to satisfy the Tribunal that there are special circumstances warranting an award of costs in the party's favour: Styles v Wollondilly Shire Council [2017] NSWCATAP 108.

Costs application of the Solicitor

1. The Solicitor initially sought costs of her administrative review application under s 60(3)(e) of the NCAT Act. While she did not elaborate in any detail, the basis for her costs application would seem to have been that the Commissioner's disciplinary finding and order made against her on 18 October 2019 under the Uniform Law was unfounded and, at worst, malicious. The inference can be drawn that, in her view, she needed therefore to bring proceedings in the Tribunal for merits review of the Commissioner's unreasonable or unfair decision.
2. In response (and prior to the Decision dated 30 July 2020), the Commissioner submitted that the Solicitor is not entitled to her costs, even if the Tribunal decided not to affirm his decision, since there is no evidence to suggest that there are any "special circumstances" warranting a costs order in her favour. The Commissioner further submitted that s 60(3)(e) does not provide a proper basis on which the Tribunal should make a costs orders in her favour as she commenced the Tribunal proceedings.
3. We do not consider that there is any basis on which the Solicitor should be awarded her costs under s 60(2) of the NCAT Act. She has not succeeded in her application for administrative review. She has not made out a case that the Commissioner showed malice or any form of unfairness towards her. There is no evidence that the Commissioner improperly brought disciplinary action against her by investigating a complaint from a member of the public and proceeding to make a determination in that respect under the Uniform Law. To the extent that the Solicitor argues that any malicious or unfair conduct on the part of the Commissioner (or the Office of the Legal Services Commissioner) somehow led to her incurring costs in bringing proceedings in the Tribunal such as to ground an argument that there are "special circumstances" to warrant a costs order in her favour, we consider her costs application to be misconceived.

Costs application of the Commissioner

1. The Commissioner initially sought his costs of, and incidental to, the proceedings under s 60(3)(e) of the NCAT Act on the basis that the proceedings brought by the Solicitor in the Tribunal were frivolous or vexatious or otherwise misconceived or lacking in substance. Alternatively, costs were sought under s 60(3)(c) of the NCAT Act on the basis that applicant's grounds and/or submissions had no tenable basis in fact or law. In his written submissions on costs dated 17 August 2020, the Commissioner maintained his application for costs under s 60(2) on the same basis.
2. The Commissioner summarised the "grounds" of the Solicitor's application for administrative review as follows: 1. The "unfairness and malicious nature of the decision"; 2. The consequences of the applicant's conduct, namely: 1. there were no costs order made against the applicant 2. there was no detriment to Ms Solier or Ms Machuca 3. the caveat was removed promptly and at the expense of the applicant; 1. The reprimand is "grossly unfair and unreasonable".
3. The Commissioner referred to various comments made by the Tribunal in the Decision, including at [83]: "The Solicitor's claims that the Commissioner's actions are malicious and unfair show a lack of awareness of the proper role of regulatory authorities under the Uniform Law. Further, in the way she has presented her application to the Tribunal the Solicitor has not demonstrated an understanding of the seriousness of her conduct."
4. In relation to the consequences of the Solicitor's conduct, as the Tribunal noted at [62] and [63]: "62. …. There is also no requirement that a person suffer loss or other detriment as a consequence of a solicitor's acts or omissions. This much is clear from the case law. ... 63. While loss or other detriment is not required …, we note that we do not accept the Solicitor's submission that the complainant suffered no loss or detriment. …. Further, contrary to the Solicitor's submission, the fact that the complainant did not commence any legal proceedings against the Solicitor's firm is irrelevant."
5. The Commissioner submits that each ground of the Solicitor's application was misconceived or lacking substance. Further, or in the alternative, it is submitted that each ground had no tenable basis in fact or law.
6. While we think that the Commissioner's arguments have some merit, we are not ultimately persuaded that there are "special circumstances" such as to warrant a costs order in the Commissioner's favour. As a starting point, we are not satisfied that, viewed as a whole, the Solicitor's administrative review application was frivolous, vexatious, misconceived or otherwise lacking in substance. She sought a merits review of the Commissioner's disciplinary decision which she was entitled to do, and in this regard, it is not insignificant that there was no internal review mechanism open to her. Further, whilst many, indeed most, of her claims in the application were untenable, this does not mean that her application for administrative review lacked a legal foundation. We note that in this regard there was little guidance to be found in case law as to what steps a solicitor might reasonably take in verifying a client's identity in circumstances similar to those before the Tribunal.
7. Accepting the Commissioner's description of the Solicitor's "grounds of application" as an accurate summary for present purposes, we agree with the Commissioner that grounds (a) and (b)(i) and (ii) were misconceived (s 60(3)(e)) and untenable in law (s 60(3)(c)). However, grounds (b)((iii) and (c) do not fall into the same category. It is difficult to say that ground (c) - that the reprimand issued by the Commissioner was "grossly unfair and unreasonable" - was either misconceived or untenable, given the wide range of orders open to the Tribunal. Hypothetically, the Tribunal could have decided that a caution was more appropriate than a reprimand.
8. In sum, the Solicitor was entitled to seek review of the Commissioner's determination, and her proceedings were not brought for a collateral purpose, or to annoy the Commissioner. The proceedings were not "utterly hopeless" in the requisite sense. It is unlikely that they would have been summarily dismissed at the outset, should the Commissioner have applied for such an order (see e.g. Abughazaleh at [31]).
9. We are not satisfied that we should exercise our discretion under s 60(2) to award costs to the Commissioner in these proceedings on the basis of "special circumstances". The result is that s 60(1) of the NCAT Act applies such that each party to the proceedings is to pay the party's own costs.

Orders

1. We make the following orders: 1. A hearing in relation to the applications for costs is dispensed with, under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. The application by Mouna Youssef for an order for costs is dismissed. 3. The application by the NSW Legal Services Commissioner for an order for costs is dismissed.

Civil and Administrative Tribunal Act 2013 Schedule 5 Occupational Division … Part 4 Special provisions relating to occupations … 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. … 26 Costs in veterinary practitioner proceedings (1) Despite section 60 of this Act, the Tribunal must order costs against a veterinary practitioner in proceedings for the purposes of the Veterinary Practice Act 2003 in any of the following circumstances unless the Tribunal is satisfied that exceptional circumstances exist - (a) if the Tribunal affirms a disciplinary finding against a practitioner in proceedings for the purposes of section 48 of the Veterinary Practice Act 2003, (b) if the Tribunal considers that the matter of the complaint against a veterinary practitioner has been proved, or has not been proved to the satisfaction of the Tribunal, but the Tribunal nevertheless considers that the conduct of the veterinary practitioner was sufficiently unacceptable to warrant the making of the complaint. (2) This clause does not limit the power of the Tribunal to order costs in proceedings for a Division decision for the purposes of that Act in other circumstances.

Legal Profession Uniform Law (NSW) 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.

Legal Profession Act 2004 (repealed) 566 Costs (1) The Tribunal must make orders requiring an Australian legal practitioner 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 an Australian legal practitioner 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 practitioner to co-operate with the Commissioner or a Council, or (b) the practitioner has contravened an order of the Tribunal made in the course of 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 an Australian legal practitioner's costs from the Public Purpose Fund, but may do so only if satisfied that the practitioner 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 subsection. (4) The Tribunal may make orders requiring an Australian legal practitioner in respect of whom proceedings are pending before the Tribunal to pay costs on a 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 Australian legal practitioner 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 Part 3.2. (7) An order for costs may specify the terms on which costs must be paid. Note - Section 82 of the Administrative Decisions Tribunal Act 1997 makes provision for the recovery of costs. … 540 Summary conclusion of complaint procedure by caution, reprimand, compensation order or imposition of conditions (1) This section applies if: (a) either: (i) the Commissioner or a Council completes an investigation of a complaint against an Australian legal practitioner, or (ii) the report of an independent investigator is given to the Commissioner, and (b) the Commissioner or Council (as the case requires): (i) is satisfied that there is a reasonable likelihood that the practitioner would be found by the Tribunal to have engaged in unsatisfactory professional conduct (but not professional misconduct), and (ii) is satisfied that the practitioner is generally competent and diligent, and (iii) is satisfied that the taking of action under this section is 1justified having regard to all the circumstances of the case (including the seriousness of the conduct concerned) and to whether any other substantiated complaints have been made against the practitioner. (2) The Commissioner or Council may do any or all of the following: (a) caution the practitioner, (b) reprimand the practitioner, (c) make a compensation order under Part 4.9 if the complainant requested a compensation order in respect of the complaint, (d) determine that a specified condition be imposed on the practitioner's practising certificate. (3) Failure to attend as required by the Commissioner or Council to receive a caution or reprimand is capable of being professional misconduct. (4) If action is taken under subsection (2), no further action is to be taken under this Chapter with respect to the complaint. (5) If the Commissioner or Council decides to reprimand or make a compensation order against an Australian legal practitioner under this section, or that a condition be imposed on an Australian legal practitioner's practising certificate under this section, the practitioner may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision. (6) If the Commissioner determines that a specified condition be imposed on a practising certificate, the appropriate Council is required to impose and maintain the condition. The condition may be amended, suspended, reinstated or revoked with the concurrence of the Commissioner.

Administrative Decisions Tribunal Act 1997 (repealed) 88 Costs (1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section. (1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as: (i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or (ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or (iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or (iv) causing an adjournment, or (v) attempting to deceive another party or the Tribunal, or (vi) vexatiously conducting 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) any other matter that the Tribunal considers relevant. (2) The Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis. (3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs. (4) In this section, costs includes: (a) costs of or incidental to proceedings in the Tribunal, and (b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.

Administrative Decisions Review Act 1997 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. … 66 Effect of administrative review decision (1) A decision determining an application for an administrative review under this Act of an administratively reviewable decision takes effect on the date on which it is given or such later date as may be specified in the decision. (2) If any such decision varies, or is made in substitution for, an administrator's decision, the decision of the Tribunal is taken: (a) to be the decision of the administrator (other than for the purposes of an administrative review under this Act), and (b) to have had effect as the decision of the administrator on and from the date of the administrator's actual decision, unless the Tribunal orders otherwise.

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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 October 2020