Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the Law Society of NSW v Brincat [2020] NSWCATOD 108 Hearing dates: 3 September 2020 Date of orders: 16 September 2020 Decision date: 16 September 2020 Jurisdiction: Occupational Division Before: M Schyvens, Deputy President The Hon F Marks, Principal Member Decision: We order that the respondent Lisa Brincat is disqualified indefinitely under the provisions of s 119 of the Legal Profession Uniform Law (NSW). Catchwords: PROFESSIONS AND TRADES – lay associate of law practice – used trust monies of the law firm for her personal benefit and caused trust account irregularities by intermixing trust monies with other monies – finding that conduct constituted grounds for indefinite disqualification – costs order refused. Legislation Cited: Aboriginal Land Rights Act 1983 (NSW) Architects Act 2003 (NSW) Building and Development Certifiers Act 2018 (NSW) Civil and Administrative Tribunal Act 2013 (NSW), ss 60, 60(3)(d); cl 23 of Sch 5 Commercial Agents and Private Inquiry Agents Act 2004 (NSW) Conveyancers Licensing Act 2003 (NSW) Design and Building Practitioners Act 2020 (NSW) Health Care Complaints Act 1993 (NSW) Health Practitioner Regulation National Law (NSW) Legal Profession Uniform Law (NSW), ss 119, 119(1), 119(1)(b), 119(2), 119(2)(b), 119(2)(d), 121, 122, 296, 297; Chapter 4 Business practice and professional conduct Local Government Act 1993 (NSW) Passenger Transport Act 1990 (NSW) Point to Point Transport (Taxis and Hire Vehicles) Act 2016 (NSW) Public Notaries Act 1997 (NSW) Security Industry Act 1997 (NSW) Surveying and Spatial Information Act 2002 (NSW) Tattoo Parlours Act 2012 (NSW) Tow Truck Industry Act 1998 (NSW) Veterinary Practice Act 2003 (NSW) Wool, Hide and Skin Dealers Act 2004 (NSW) Cases Cited: Barwick v Council of the Law Society of NSW [2004] NSWCA 32 Council of the Law Society of NSW v Braham [2015] NSWCATOD 98 Council of the Law Society of NSW v Hughes [2013] NSWADT 224 Texts Cited: None cited Category: Principal judgment Parties: Council of the Law Society of NSW (Applicant) Lisa Brincat (Respondent) Representation: Solicitors: Council of the Law Society of NSW (Applicant) Respondent (No appearance) File Number(s): 2019/00366846 Publication restriction: Non-publication order with respect to the names of any persons who were clients of the Law Firm, Heard McEwan Legal and any other persons named or referred to in the Application, apart from the Respondent, and any material which might tend to identify any such persons. (Amended Decision) Reasons for decision Background 1. These proceedings deal with an Application filed by the applicant, Council of the Law Society of NSW, seeking orders against the respondent, Lisa Brincat, under s 119 of the Legal Profession Uniform Law (NSW) ("the Uniform Law"). The provisions of s 119 of the Uniform Law are set out in the form of Application, which we reproduce below. We have deleted identification details of the accounts referred to under the heading "Definitions" and the names of the clients and other persons referred to in paragraphs 11 and 13. 3. ORDERS SOUGHT The Applicant seeks the following orders: 1. An order under section 119 of the Legal Profession Uniform Law (NSW) that the Respondent be disqualified indefinitely. 2. The Respondent pay the costs of the Applicant as agreed or assessed. 3. Such other orders as the Tribunal deems fit. 4. GROUNDS FOR APPLICATION (INCLUDING PARTICULARS) 1. The Respondent is not a fit and proper person to be employed or paid in connection with the practice of law or to be involved in the management of a law practice. 2. The Respondent is guilty of conduct that, if she were an Australian legal practitioner, would have constituted unsatisfactory professional conduct or professional misconduct. PARTICULARS RELEVANT LEGISLATION Legal Profession Uniform Law (NSW) 119 Disqualification of individuals (other than practitioners) (1) The designated tribunal may, on the application of the designated local regulatory authority, make an order disqualifying a person who is an individual (other than an Australian legal practitioner) for the purposes of this Law, for a specified period or indefinitely, if satisfied that— (a) a ground for making the order under this section has been established (see subsection (2)); and (b) the disqualification is justified. (2) Any of the following are grounds for disqualifying a person— (a) that the person has been convicted of a serious offence; (b) that the person is not a fit and proper person to be employed or paid in connection with the practice of law or to be involved in the management of a law practice; (c) that the person was formerly an Australian legal practitioner and has, when an Australian legal practitioner, been guilty of conduct that constituted unsatisfactory professional conduct or professional misconduct; (d) that the person has been guilty of conduct that, if the person were an Australian legal practitioner, would have constituted unsatisfactory professional conduct or professional misconduct; (e) that the person could be disqualified under sections 206C–206F of the Corporations Act from managing a law practice if the law practice were a corporation. (3) The designated tribunal, on application by the person and with the leave of the tribunal, or by the designated local regulatory authority, may vary or revoke an order if it considers it appropriate to do so. (4) An order to a similar effect made by a corresponding authority of another jurisdiction under a corresponding law applies in relation to this jurisdiction in the same way as it applies in relation to that other jurisdiction and as if it had been made by the designated tribunal. 121 Contravention by law practice—disqualified or convicted person as lay associate (1) A law practice contravenes this subsection if the law practice has a lay associate whom any principal or other legal practitioner associate of the law practice knows to be— (a) a disqualified person; or (b) a person who has been convicted of a serious offence— unless the lay associate is approved by the designated local regulatory authority under subsection (2). Penalty: 100 penalty units. (2) The designated local regulatory authority may, on application, approve a person as a lay associate for the purposes of this section. An approval may be given generally, or for a particular position or category of positions with a particular law practice, or for a particular category of positions with any law practice. 122 Contravention by disqualified person (1) A person who— (a) is a disqualified person; or (b) has been convicted of a serious offence— must not seek to become a lay associate of a law practice unless the person first informs the law practice of the disqualification or conviction. Civil penalty: 100 penalty units. DEFINITIONS First Personal CUA Account means (details deleted) which the Respondent controlled and operated at all relevant times. First Personal NAB Account means the National Australia Bank account which the Respondent controlled and operated at all relevant times. Law Practice means the law practice known as Heard McEwan Pty Limited, which trades as Heard McEwan Legal, located at 91 Crown Street Wollongong, NSW, 2500. Second Personal CUA Account means the Credit Union Australia Limited bank account which the Respondent controlled and operated at all relevant times. Second Personal NAB Account means the National Australia Bank account which the Respondent controlled and operated at all relevant times. Third Personal NAB Account means the National Australia Bank account which the Respondent controlled and operated at all relevant times. Trust Account means the Law Practice's National Australia Bank account styled "Heard McEwan Pty Ltd t/as Stacks Heard McEwan Law Practice Trust Account" (further details deleted). BACKGROUND 1. On 25 February 2013 the Respondent commenced employment as an Administrative Assistant with the Law Practice. A. Respondent used trust monies for personal benefit 2. On or around the following dates the Respondent caused the following monies to be: a) withdrawn from monies held in the Trust Account on trust for the Law Practice's clients; and b) deposited into the following accounts: Date Amount Account into which monies were deposited 7 April 2017 $1,000.00 First Personal NAB Account $2,636.49 Second Personal CUA Account 11 April 2017 $1,005.05 Second Personal NAB Account 13 April 2017 $1,616.00 Third Personal NAB Account 26 May 2017 $5,125.00 First Personal CUA Account 20 October 2017 $7,753.00 Second Personal CUA Account 7 November 2017 $2,126.90 Second Personal CUA Account 31 July 2018 $627.40 First Personal CUA Account 8 August 2018 $2,941.40 First Personal CUA Account 10 August 2018 $2,000.00 First Personal CUA Account 3. The Respondent intended to cause the transactions referred to in paragraph 2 above to be made. 4. The transactions referred to in paragraph 2 above occurred without the authority or direction of the Law Practice or the clients on whose behalf the Law Practice held the monies on trust. 5. The transactions referred to in paragraph 2 above constituted use of the monies referred to in that paragraph for the Respondent's benefit. B. Respondent intermixed trust monies with other monies and caused trust account irregularities. 6. On or around 29 November 2017 the Respondent caused to be deposited into the Trust Account monies, which were not trust monies, in the sum of $64,949.52. 7. On or around 1 December 2017 the Respondent caused: a) $64,839.52 to be withdrawn from the Trust Account; and b) $3,000 of the monies referred to in paragraph 7(a) above to be deposited into the Second Personal NAB Account. 8. The Respondent intended to cause the transactions referred to in paragraphs 6 and 7 above to be made. 9. The transactions referred to in paragraphs 6 and 7 above occurred without the Law Practice's authority or direction. 10. In or around December 2017 the Respondent caused to be made in the Law Practice's Trust Account ledger an entry indicating that, on 1 December 2017, the $3,000 referred to in paragraph 7(b) above was deposited into an account in the name of T – Settlement funds". C. Respondent caused trust account irregularities 11. On or around 7 August 2018 the Respondent caused: a) $24,213.10 to be: i. withdrawn from the Trust Account from monies held on trust for V and N; and ii. paid to New South Wales Revenue in relation to a matter in which the Law Practice acted for B; and b) $127.47 to be: i. withdrawn from the Trust Account from monies held on trust for V and N; and ii. paid to New South Wales Revenue in relation to a matter in which the Law Practice acted for H and F. 12. The Respondent intended to cause the transactions referred to in paragraph 11 above to be made. 13. The transactions referred to in paragraph 11 above occurred without the authority or direction of the Law Practice or V and N. GROUNDS 14. In the circumstances referred to in paragraphs 1 to 13 above: a) The Respondent is not a fit and proper person to be employed or paid in connection with the practice of law or to be involved in the management of a law practice. b) Had the Respondent been an Australian legal practitioner, her conduct would have amounted to unsatisfactory professional conduct or professional misconduct. 1. The respondent filed a Reply document, affidavit and submissions, all of which were to the same effect. The respondent did not oppose the orders sought by the applicant that she be disqualified "from working in or managing a law firm indefinitely". The respondent however vehemently opposed the making of a costs order. 2. The matter came on for hearing on 3 September 2020 using facilities provided by the Tribunal to enable participation by the parties by audio-visual link. Although the applicant was able to participate, the respondent was unable to gain access using the link. Efforts were then made to contact the respondent by us using hearing room facilities, by the applicant and by Registry staff using the mobile number which she had provided. Those efforts commenced at 10:05 AM and continued until 12:02 PM. On each occasion that a call was placed to the respondent's mobile phone, the call went through to voicemail in the respondent's name. We left a number of messages for her asking her to ensure that her mobile number was answered on each occasion when the call was placed. Similar efforts were made by the applicant and by Registry staff. In addition, the applicant and Registry staff sent a series of emails to the respondent's email address. The respondent replied to a number of these email communications. She indicated that she was able to call the audio-visual link but thought that she was unable to be heard. She also said that her mobile phone was "on" but that when she answered it "it drops straight out". 3. We concluded that it was impossible for the respondent to participate in the hearing in the manner which she had chosen. The applicant asked that the proceedings be adjourned to a future date. We rejected this application. The respondent had indicated in her email communications that morning that she wished the matter to be concluded that day. The respondent had not filed any evidentiary material in the proceedings, and the respondent had, in her submissions filed in the proceedings and in her Reply document, submitted to the orders sought save for a costs order. We informed the applicant that we would proceed with the hearing, but that we might reserve the question of costs following the applicant's submissions on this matter. 4. We observe that these proceedings do not involve disciplinary proceedings taken against a legal practitioner. Accordingly, the rules of evidence do not apply. However, consistent with the principles habitually adopted by this Tribunal concerning matters involving allegations of serious misconduct, we will approach the determination of any factual issues on the basis of the well-known Briginshaw principles. That is, we will proceed on the basis that we must be "comfortably satisfied" that the applicant has established any relevant factual matter on the balance of probabilities. The evidentiary material 1. The provisions of s 119 of the Uniform Law which are set out in the Application make it clear that these proceedings may only be taken against a person who is not an Australian legal practitioner. The respondent provided an email communication to the applicant on 27 July 2020 in which she informed the applicant that she had never been admitted as a lawyer in any Australian jurisdiction or held an Australian Practising Certificate. This email was provided in response to a request for this information made by the solicitor for the applicant for the purpose of these proceedings. We are comfortably satisfied that this aspect of the proceedings has been established. 2. The applicant tendered into evidence in the proceedings affidavits of Anthony James Lean, sworn 19 November 2019; Nathan Frederick Heard, sworn 24 December 2019; and James Sofiak, sworn 19 November 2019 and 1 September 2020. 3. The affidavit of Mr Heard established that the respondent was employed by the law practice named in the Application between 25 February 2013 and 27 September, 2018 as an Administrative Assistant. Annexed to that affidavit was extensive documentation referring to the client matters which are detailed in the Application including a detailed statement dated 14 June 2019, concerning the interrelationship between the law firm and the respondent involving those matters and investigations conducted with respect to them. 4. The affidavit of Mr Lean sets out the steps taken by the applicant in determining to institute these proceedings. The affidavit also annexes correspondence between the applicant and the respondent. 5. Mr Sofiak is the Chief Trust Accounts Investigator for the Law Society of NSW and he conducted a trust investigation of the law firm from which he produced a detailed report annexed to his affidavits. That report contains information with respect to each of the matters conducted by the law firm which are the subject of these proceedings as well as extracts from the trust account of the law firm, extracts from bank account statements of financial accounts conducted by the respondent, and documents created by the respondent authorising the transfer of monies from the trust account of the law firm to or on behalf of either fictional entities, clients of the firm who were unrelated to the particular transactions or persons who were not clients of the law firm. 6. During the course of the hearing the solicitor for the applicant, Mr C Flax, referred us in detail to each and every transaction which is the subject of the allegations contained in the material referred to in A, B and C of the Application. Those transactions and the supporting documentation which establishes all of the allegations contained under those headings are all found in the documents annexed to the affidavits of Mr Sofiak. His report confirms that the respondent intended to cause the transactions which are particularised in the Application. The affidavit of Mr Heard confirms that the respondent was not authorised or directed to pay those monies in the manner initiated by the respondent. Conclusions on the evidence 1. Having regard to the evidentiary material referred to above, we are comfortably satisfied that each and every allegation contained in paragraphs 2 to 13 contained in the Application have been established. The elements of section 119 of the Uniform Law 1. The following are the elements necessary to be established as a prerequisite for the exercise of the power vested in this Tribunal to order that a person who is an individual be disqualified. 1. That one of the grounds for disqualification established by s 119(2) of the Uniform Law have been established. In the circumstances of these proceedings the relevant grounds are (b) and (d). 2. That by reason of either ground disqualification is justified: s 119(1)(b) of the Uniform Law. 1. The disqualification may be for a specified period or indefinitely: s 119(1) of the Uniform Law. 2. Once an order for disqualification is made every law practice is prohibited from having that person as a lay associate unless prior approval has been obtained from the designated local regulatory authority, which, for our purposes is the applicant in these proceedings: s 121 of the Uniform Law. Furthermore, a disqualified person must not seek to become a lay associate of a law practice unless he or she first informs the law practice of the disqualification: s 122 of the Uniform Law. Have the grounds for disqualification been made out? 1. We have found that the respondent used trust monies of the law firm for her personal benefit, and that she caused trust account irregularities by intermixing trust monies with other monies. The respondent has not provided any explanation of her conduct in using some of the trust monies for her own benefit. Nor do we have any satisfactory explanation why the respondent intermixed trust monies with other monies and caused trust account irregularities. 2. Monies held in a solicitor's trust account are held in trust for clients for designated purposes. The practice of the legal profession in New South Wales is built on their good reputation and integrity. This is a matter of such notoriety that it is not necessary to embellish this statement. For present purposes it is sufficient that we refer to the well-known extract of the judgment of Ipp JA in Barwick v Council of the Law Society of NSW [2004] NSWCA 32. At [118] his Honour said ………….. The trust and confidence which clients place in their solicitors are a basic element of the administration of justice in this country. Violations by legal practitioners of trust accounts betray that trust and harm public confidence in the legal system. This explains the sacrosanct nature of trust accounts and the acute concern that courts have when practitioners, in breach of their fiduciary obligations, misuse trust moneys for their own benefit…………… 1. The respondent had been employed by the law firm for a period in excess of four years when she embarked upon the course of conduct which is at the heart of these proceedings. Whilst there is no evidence about the training or instruction that the respondent received when she commenced employment with the law firm, there can be no doubt on the basis of the factual matters which we have found proven, that the respondent must have been aware that monies with which she was dealing inappropriately were held in trust for particular clients of the law firm. It was the respondent who initiated the transfers out of the trust account. Such conduct demonstrates that the respondent is not a fit and proper person to be employed or paid in connection with the practice of law or to be involved in the management of the law practice. We find the ground for disqualifying her under s 119(2)(b) of the Uniform Law has been established. 2. It is axiomatic that an Australian legal practitioner who is guilty of using trust monies for his or her own personal benefit and of intermixing trust monies with other monies and otherwise causing trust account irregularities, is guilty of professional misconduct under the Uniform Law in the absence of some compelling exculpatory reason. The Uniform Law establishes a comprehensive regime governing the operation and conduct of trust accounts of solicitors including a prohibition on intermixing trust monies with other monies. These matters are of such notoriety that it is not necessary to consider them further. For present purposes we refer to the provisions of Chapter 4, Business practice and professional conduct, of the Uniform Law. 3. We note for completeness that professional misconduct is defined in the Uniform Law in s 297: 297 Professional misconduct (1) For the purposes of this Law, professional misconduct includes— (a) unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and (b) conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice. (2) For the purpose of deciding whether a lawyer is or is not a fit and proper person to engage in legal practice as referred to in subsection (1)(b), regard may be had to the matters that would be considered if the lawyer were an applicant for admission to the Australian legal profession or for the grant or renewal of an Australian practising certificate and any other relevant matters. 1. That definition in turn refers to the definition of unsatisfactory professional conduct found in s 296 of the Uniform Law: 296 Unsatisfactory professional conduct For the purposes of this Law, unsatisfactory professional conduct includes conduct of a lawyer occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer. 1. We find the ground for disqualifying the respondent under s 119(2)(d) of the Uniform Law has been established because, if the respondent had been an Australian legal practitioner, her conduct would have constituted professional misconduct. A disqualification order should be made 1. Having regard to the nature and extent of the conduct of the respondent which we have found to have occurred, the lack of any satisfactory exculpatory explanation, and the establishment of the grounds for disqualification referred to above, we find that it is appropriate that a disqualifying order be made. The absence of any explanation makes it difficult to assess whether the disqualification should be for a specified period rather than indefinitely. In that the respondent agreed to the making of an order that she be disqualified on an indefinite basis, and there being no other circumstances which would indicate to the contrary, we propose to make an order in these terms. Costs 1. Costs in these proceedings are governed by s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) ("the CAT Act") 60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (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. (4) If costs are to be awarded by the Tribunal, the Tribunal may— (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (5) In this section— costs includes— (a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal. 1. The applicant sought a costs order in its favour based on a decision of the former Administrative Decisions Tribunal of New South Wales in Council of the Law Society of NSW v Hughes [2013] NSWADT 224. That decision concerned legislation which was a predecessor to the Uniform Law, in terms similar to s 119 of that Act, and legislation which was in terms similar to those of s 60 of the CAT Act set out above. The Tribunal held that it was in the public interest that the Council of the Law Society of NSW had initiated those proceedings, which were designed to protect the public interest in the integrity of the legal profession. This was said to constitute a sufficient reason to order costs against the respondent, presumably enabling them to be characterised as involving "special circumstances". 2. Mr Flax also properly referred us to the question of costs which was considered in this Tribunal in Council of the Law Society of NSW v Braham [2015] NSWCATOD 98. Those proceedings concerned the same provisions of the Uniform Law dealt with in these proceedings. The Tribunal declined to find that the nature of the proceedings per se created "special circumstances" for the purpose of s 60 of the CAT Act. 3. In its decision in Hughes the Administrative Decisions Tribunal did not describe in any detail why it considered the proceedings to involve "special circumstances." Presumably, the Tribunal found that the proceedings came within the predecessor to s 60(3)(d) of the CAT Act because of the "nature of the proceedings" involving matters of public interest. However, this Tribunal deals with many matters which involve the public interest, as opposed to proceedings inter partes. Examples are readily provided within the provisions of Sch 5 to the CAT Act which lists the legislation under which this Tribunal exercises powers of a regulatory nature concerning entitlement to registration. This legislation includes the Aboriginal Land Rights Act 1983 (NSW), Architects Act 2003 (NSW), Building and Development Certifiers Act 2018 (NSW), Commercial Agents and Private Inquiry Agents Act 2004 (NSW), Conveyancers Licensing Act 2003 (NSW) (except in relation to Div 3 of Pt 4 of that Act), Design and Building Practitioners Act 2020 (NSW), Health Care Complaints Act 1993 (NSW), Health Practitioner Regulation National Law (NSW), Legal Profession Uniform Law (NSW), Local Government Act 1993 (NSW), Passenger Transport Act 1990 (NSW), Point to Point Transport (Taxis and Hire Vehicles) Act 2016 (NSW), Public Notaries Act 1997 (NSW), Security Industry Act 1997 (NSW), Surveying and Spatial Information Act 2002 (NSW), Tattoo Parlours Act 2012 (NSW), Tow Truck Industry Act 1998 (NSW), Veterinary Practice Act 2003 (NSW) and Wool, Hide and Skin Dealers Act 2004 (NSW). 4. Prima facie unless the above legislation provides to the contrary, the costs of proceedings before this Tribunal will be governed by s 60 of the CAT Act. An example of a contrary provision is to be found in cl 23 of Sch 5 of the CAT Act. This clause provides: 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. 1. It will be observed that the provisions of cl 23 of the CAT Act are confined to proceedings against a lawyer alleging unsatisfactory professional conduct or professional misconduct under the Uniform Law. 2. If the legislature had intended that the costs regime applying to proceedings in the nature of those which we are considering should be the subject of provisions other than those contemplated by s 60 of the CAT Act, it could have made specific provision as is contained in cl 23 of that Act. Absent any such specific provision we would apply the provisions of s 60 of the CAT Act by having regard to the language used throughout that section, including the clear intention that costs should not be awarded except in "special circumstances". This requires something which may be described as out of the ordinary, or exceptional. The mere fact that these proceedings are taken in the public interest by an applicant which is charged with the responsibility of participating in the regulation of the legal profession does not create something which is out of the ordinary or exceptional, because, as we have demonstrated above, the work of this Tribunal extends to the regulation of many professions and occupations. This work is neither out of the ordinary or exceptional. Nor is the work of the regulatory or other authority engaged in these proceedings out of the ordinary or exceptional. The mere fact that the public interest is engaged does not ipso facto result in the proceedings being so characterised. 3. The applicant was not able to advance any submission in support of a costs order in its favour other than the public interest argument. For the reasons which we have set out above, there is no feature of these proceedings, whether by way of their nature or any aspect of the manner in which they have been conducted, which would justify them being characterised as involving "special circumstances". We decline to make any costs order. Orders 1. We order that the respondent Lisa Brincat is disqualified indefinitely under the provisions of s 119 of the Uniform Law. ********** 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 Amendments 24 September 2020 - Amendment to [9], "as the delegate of the applicant" inserted. 13 October 2020 - Further amendment to para [9] to clarify the steps taken to institute the proceedings. 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: 13 October 2020