Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the New South Wales Bar Association v de Robillard (No 2) (Costs) [2023] NSWCATOD 116 Hearing dates: On the papers Date of orders: 02 August 2023 Decision date: 02 August 2023 Jurisdiction: Occupational Division Before: The Hon Le Poer Trench ADCJ, Principal Member Decision: (1) The respondent is to pay the costs of the Council of the New South Wales Bar Association as agreed or assessed. Catchwords: COSTS – administrative tribunals – legal practitioner disciplinary proceedings – respondent guilty of unsatisfactory professional conduct and professional misconduct – mandatory costs order – whether exceptional circumstances – no evidence of respondent's financial or personal circumstances – manner in which respondent conducted his case at hearing. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(a), Sch 5 cl 23(1) Legal Profession Uniform Law (NSW), ss 3, 262(4)(a), 302, 303 Cases Cited: Council of the Law Society of New South Wales v Braham [2015] NSWCATOD 97 Council of the Law Society of New South Wales v Fisher (No 2) [2021] NSWCATOD 135 Council of the Law Society of New South Wales v Gallego (No 2) [2015] NSWCATOD 10 Council of the Law Society of New South Wales v Ginges [2016] NSWCATOD 7 Council of the Law Society of New South Wales v Greenstein [2015] NSWCATOD 122 Council of the Law Society of New South Wales v Haseldine (No 2) [2018] NSWCATOD 41 Council of the Law Society of New South Wales v Hinde [2011] NSWADT 20 Council of the Law Society of New South Wales v Webb (No 2) [2012] NSWADT 233 Council of the New South Wales Bar Association v BRJ (No.2) [2015] NSWCATOD 140 Council of the New South Wales Bar Association v Miller (No 2) [2012] NSWADT 129 Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25 Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 Council of the NSW Bar Association v EFA (a pseudonym) [2021] NSWCA 339 Category: Costs Parties: Council of the New South Wales Bar Association (Applicant) Christian Roger de Robillard (Respondent) Representation: Counsel: K Morgan SC (Applicant) A Poukchanski (Applicant, junior counsel) Respondent (self-represented) Solicitors: Hicksons Lawyers (Applicant) File Number(s): 2020/00320791 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), publication or disclosure of the names of the Respondent's former clients referred to in the Tribunal's decision of 1 June 2023 is prohibited. REASONS FOR DECISION 1. On 1 June 2023, the Tribunal published the decision in this matter. It made the following orders: 1. Pursuant to s 262(4)(a) and s 302 of the Legal Profession Uniform Law (NSW), it is recommended that the name Christian Roger de Robillard be removed from the Roll kept by the Supreme Court of NSW and the Australian Legal Profession Register. 2. The Council is to make any further submission it seeks to rely upon in support of its' application for the Respondent to pay its' costs within 14 days from the date of this order. The submission is to be limited to four A4 pages. 3. The Respondent is to make any submission in response to the Council's submission on costs within 14 days of the receipt of any further submission of the Council made pursuant to this order and if no further submission is made the Respondent is to provide his written submission (limited to four A4 pages) in relation to the Council's application that he pay the Council's costs of the proceeding, within 14 days of the date of this order. 4. The Council may provide a written reply to the submission of the Respondent, within 14 days of having been served with same. Such submission is to be confined to four A4 pages. 5. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), publication or disclosure of the names of the Respondent's former clients referred to in these reasons is prohibited. 1. Pursuant to order (2) above, the Council of the NSW Bar Association (the Council) filed its' further submission on 13 June 2023. 2. At the request of the Tribunal Registry staff, the Council's solicitor provided a copy of the email it sent to the Respondent on 13 June 2023, attaching a copy of its submission filed in the Registry that same day. 3. The Respondent, pursuant to order (3) above, had until 28 June 2023 to file any submission he sought to rely upon. No such submission was received by the Registry office of the Tribunal within the time required by the Tribunal order. 4. On or before 29 June 2023, the Respondent made application for an extension of time to file his submission. He sought an extension until 7 July 2023. On 29 June 2023, the Registrar sent correspondence to each of the parties advising the Respondent had sought an extension of time in which to file his submission on costs. 5. On 29 June 2023, the Respondent sought the Applicant's consent to his application for extension of time. A copy of that email was provided to the Registrar. On that same date, the Applicant responded to the Registrar and advised that in relation to the application, it neither consented to nor opposed the request for an extension as sought. Both the Applicant and the Respondent consented to the application being dealt with on the papers. 6. On 6 July 2023, the Registrar emailed to the Respondent a copy of the sound recordings made for the hearing dates he had requested. 7. On 17 July 2023, the time for the Respondent to file his submission in relation to the Applicant's cost application was extended to Friday 21 July 2023. 8. The Respondent did provide his submission on Friday 21 July 2023. This is the decision in relation to costs. 1. The Council, in the Complaint document which commenced the proceeding sought the following order: "That the respondent pay the costs of the Council of the New South Wales Bar Association". The order sought relates to the whole of the proceeding in the Tribunal which has involved two distinct hearings which have been referred to as Stage 1 and Stage 2. 2. In the submission provided by the Council, the Tribunal has noted the following. 3. The Council addressed the "Legal Principles". It referred to clause 23(1) of Schedule 5 to the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), which provides 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. … (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. The Council also relies upon s 303(1) of the Legal Profession Uniform Law (NSW) (LPUL) which has a similar provision to that stated above in the NCAT Act. 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. 1. The Council then addressed the circumstance which might be found to amount to an "exceptional circumstance" for the purpose of either of the provisions of the NCAT Act or the LPUL as set out above. 2. The Council referred to the decision of the High Court in the context of the Migration Act 1958 (Cth), namely Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 at [30]. In that paragraph, the majority stated: "Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word 'exceptional', in such a context, is not a term of art but 'an ordinary, familiar English adjective': '[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered'." 1. It also referred the Tribunal to the decision of the Tribunal in Council of the New South Wales Bar Association v BRJ (No.2) [2015] NSWCATOD 140 at [22]. In that decision, the Tribunal stated: "Without attempting to provide a meaning of 'exceptional circumstances' in s 566 of the Act, which is all encompassing, we are of the view that for the purposes of this application, a circumstance is exceptional where it is one which is such as to form an exception, which is out of the ordinary course, or unusual, or special or uncommon. It need not be unique or unprecedented or very rare, but it cannot be one that is regularly, or routinely, or normally encountered in cases heard in the Tribunal in which findings of unsatisfactory professional conduct or professional misconduct are made. A circumstance will not be exceptional if it is only relevant to penalty or mitigation of penalty. It is implicit in s 566(1) that an order exempting a respondent practitioner found guilty of unsatisfactory professional conduct or professional misconduct from paying costs incurred by the applicant, is not warranted simply because exceptional circumstances of some kind or other are present. The nature of the exceptional circumstances must be such as to justify displacement of the normal rule that a costs order should be made. If the Tribunal is satisfied that exceptional circumstances in this sense exist, it has a discretion under s 556(1) not to order a respondent legal practitioner to pay the applicant's costs or the whole of the applicant's costs (see R v Kelly (Edward) [1999] UKHL 4; [2000] QB 198 at 208; San v Rumble (No 2) [2007] NSWCA 259 at [67]; Council of the Law Society of New South Wales v Gallego (No 3) [2015] NSWCATOD 37 at [33]; Council of the Law Society of New South Wales v Hinde [2011] NSWADT 20 at [31]; and Legal Services Commissioner v O'Connor (No 2) [2006] LPT 002 at [15])." 1. The Council set out in its' submission that "financial difficulty has at times been accepted as a qualifying circumstance when occurring in combination with other factors." It referred to the decisions in Council of the Law Society of New South Wales v Webb (No 2) [2012] NSWADT 233, Council of the Law Society of New South Wales v Hinde [2011] NSWADT 20, and Council of the Law Society of New South Wales v Gallego (No 2) [2015] NSWCATOD 10 at [52]-[54]. 2. In Council of the Law Society of New South Wales v Gallego (No 2) [2015] NSWCATOD 10 at [50]-[54], the Tribunal said: "50. Ms Merkel relied on the decision of the Administrative Decisions Tribunal in Council of the Law Society of New South Wales v Hinde [2011] NSWADT 20. In that case, the Tribunal, having recorded a finding of professional misconduct against the respondent solicitor, went on to rule that by virtue of 'exceptional circumstances', he should not be ordered to pay the Law Society's costs. It based this ruling principally on his poor financial circumstances of the respondent solicitor and on the fact that he was 82 years of age. It summarised its reasons as follows, at [32 – 33]:- '32 The features of this case that support a finding of 'exceptional circumstances' are ... the advanced age of the Respondent and his straitened financial situation. The relevant aspects of his financial situation are these: (a) he has a very small regular income, taking the form of a state pension; (b) he has no assets of significant value; (c) due in particular to his age, he has no significant prospect of obtaining gainful employment; and (d) any costs order against him could only be satisfied by small instalment payments commencing on a future date and lasting over a significant period of time. 33 In the context of disciplinary proceedings such as these, we are satisfied that these constitute 'exceptional circumstances'. They fall within the phrase 'out of the ordinary course, or unusual, or special, or uncommon', used in R v Kelly (Edward) [2000] QB 198 at 208 and adopted by the Queensland Legal Practice Tribunal in Legal Services Commissioner v Scott (No 2) [2009] QLPT 9 at [19]. The hearing of disciplinary proceedings against a legal practitioner who is both as far past the normal age of retirement and as impoverished as the Respondent is indeed a most unusual phenomenon.' 51. In considering these submissions, we take account of a later decision of the Administrative Decisions Tribunal that was not mentioned in the parties' submissions. In Council of the Law Society of New South Wales v Webb (No 2) [2012] NSWADT 212, the Tribunal held that an order for payment of only 50% of the Law Society's costs was justified in the light of 'exceptional circumstances'. At [52], it outlined these as follows:- '52 ... The trial was longer than it need have been; the Solicitor remains liable to pay a very substantial sum towards the costs of the investigation of his practice; his financial circumstances are relatively poor ...'. 52. We have decided that this is also a case in which 'exceptional circumstances' exist, but only to the extent of providing partial relief from liability for costs. 53. In so deciding, we take account of the following matters. The degree to which the Solicitor is impoverished is comparable to that of the respondent in Hinde. His prospects of re-employment, at least in the immediate term, are low and that they might be reduced by being ordered to make a significant payment on account of costs. He raised relatively little opposition to the case brought by the Law Society, though the opposition that he did raise inevitably contributed to the scale of the costs incurred by the Society." 1. The Council submits that bankruptcy alone has been held not to constitute "exceptional circumstances" for the purpose of the subject sections of the LPUL and the NCAT Act. It referred to the decisions in Council of the New South Wales Bar Association v Miller (No 2) [2012] NSWADT 129 at [44] and Council of the Law Society of New South Wales v Haseldine (No 2) [2018] NSWCATOD 41 at [84]. 2. In Council of the New South Wales Bar Association v Miller (No 2) [2012] NSWADT 129 (Miller (No 2)) at [43]-[44], the Tribunal stated: "43. Under section 566(1) of the [Legal Profession Act 2004 (NSW)], the Tribunal is required to order that a respondent in disciplinary proceedings who has been found guilty of professional misconduct must pay the costs of the applicant unless 'exceptional circumstances' exist. 44. We agree with a submission by Ms Williams that neither the Respondent's bankruptcy nor the deferral of his discharge on account of objections by his trustee (see [24] above) constitutes 'exceptional circumstances' within this provision. As she submitted, an order for costs should be made and the Bar Association should be free to take such steps as it may be advised to recover its costs." 1. In Council of the Law Society of New South Wales v Haseldine (No 2) [2018] NSWCATOD 41, the Tribunal considered the cost application of the Law Society. The Tribunal stated (at [81]-[85]): "81. The Council seeks an order for costs. 82. Mr Haseldine submitted that the conduct giving rise to the complaint and findings of the Tribunal arose from a genuine error. He said he co-operated with the Council fully in respect of its investigation of the matter and said that he was now semi-retired. He made no other submissions concerning whether any exceptional circumstance existed sufficient to justify displacement of the normal rule. 83. As the Tribunal indicated in Council of the Law Society of New South Wales v Wehbe [2018] NSWCATOD 14 at [389] the meaning of the words 'exceptional circumstances' in the context of s 566 of the LPA now repealed but relevantly in similar terms to clause 23 was considered by the Tribunal in Council of the New South Wales Bar Association v BRJ (No.2) [2015] NSWCATOD 140 which said at [22]: '22 Without attempting to provide a meaning of "exceptional circumstances" in s 566 of the Act, which is all encompassing, we are of the view that for the purposes of this application, a circumstance is exceptional where it is one which is such as to form an exception, which is out of the ordinary course, or unusual, or special or uncommon. It need not be unique or unprecedented or very rare, but it cannot be one that is regularly, or routinely, or normally encountered in cases heard in the Tribunal in which findings of unsatisfactory professional conduct or professional misconduct are made. A circumstance will not be exceptional if it is only relevant to penalty or mitigation of penalty. It is implicit in s 566(1) that an order exempting a respondent practitioner found guilty of unsatisfactory professional conduct or professional misconduct from paying costs incurred by the applicant, is not warranted simply because exceptional circumstances of some kind or other are present. The nature of the exceptional circumstances must be such as to justify displacement of the normal rule that a costs order should be made. If the Tribunal is satisfied that exceptional circumstances in this sense exist, it has a discretion under s 556(1) not to order a respondent legal practitioner to pay the applicant's costs or the whole of the applicant's costs [relevant authorities cited].' 84. In our view the matters raised by Mr Haseldine in his submissions are not matters which are not regularly or routinely or normally encountered in cases heard by the Tribunal in which findings of professional misconduct are made. The fact that the conduct in issue arose from error, that Mr Haseldine co-operated with the Council and that he is semi-retired are not of their nature exceptional circumstances such as would justify displacement of the normal rule. There was no submission by Mr Haseldine that his semi-retirement gave rise to straitened financial circumstances. We note that such circumstances even including bankruptcy do not sound as an exceptional circumstance for the purposes of clause 23.1; Council of the New South Wales Bar Association v Miller (No.2) [2012] NSWADT 129 at [44]. 85. In the absence of exceptional circumstances Schedule 5, clause 23 of the CAT Act requires that we make a costs order in favour of the Council." 1. The Council relied upon the decision in Council of the Law Society of New South Wales v Braham [2015] NSWCATOD 97 to support its' submission that the Tribunal may make an order for costs against a practitioner notwithstanding he has ceased to practice. In that decision at [26], the Tribunal stated: "The expression 'respondent lawyer' is not defined in the CAT Act. However, we were referred to s 303 of the Uniform Law, which now repeats the provisions of cl 23(1) of CAT Act in relation to costs – except that it uses the term 'lawyer' rather than 'respondent lawyer'. [Section] 261 of the Uniform Law provides that where this term is used in the relevant chapter of the Uniform Law, it can refer to a former Australian legal practitioner. Thus we are satisfied that a costs order could be made against the Solicitor notwithstanding that he has ceased practising." 1. The Council submitted that the Tribunal's decision to depart from the usual costs order, upon finding exceptional circumstances, is discretionary. The Council stated that the Tribunal has previously declined to exercise that discretion in circumstances where, among other things, "the practitioner contested most of the issues falling for determination and made no admissions prior to the hearing, notwithstanding that she was entitled to conduct her case in that way: Council of the Law Society of New South Wales v Fisher (No 2) [2021] NSWCATOD 135 (Fisher (No 2)) at [55]." 2. Additionally, the Council pointed to the decisions of the Tribunal in Council of the Law Society of New South Wales v Ginges [2016] NSWCATOD 7 at [62] and Council of the Law Society of New South Wales v Greenstein [2015] NSWCATOD 122 at [55], where the Tribunal declined to find exceptional circumstances where the practitioner had not filed evidence, or had not filed sufficient evidence, to support such a finding. 3. The Council then submitted that there were no exceptional circumstances in this case. The Council stated that what is known about the Respondent is that he is an undischarged bankrupt. It says that raises a suggestion that his finances are poor. However, the Council says there is no evidence of the Respondent's assets and income. The Council noted that if the recommendation made by the Tribunal was taken up by the Court of Appeal, then the Respondent would be prohibited from practising law and there would thereby be a restriction upon the Respondent's future income. 4. The Council submitted that the Respondent's financial circumstances and age do not constitute "exceptional circumstances" warranting the Tribunal refusing to make a costs order against the Respondent. 5. The Council submitted that there were compelling reasons to visit a costs order against the Respondent in this case. It submitted (at pars 16-17): "16. … [T]he respondent's conduct in the proceedings should weigh heavily toward the making of an order that he pay [the] Bar Council's costs. The respondent's numerous recusal applications (Stage 2 reasons at [62]); lengthy and irrelevant cross-examination of [the] Bar Council's witnesses (Stage 2 reasons at [243] – [294]); argumentative manner toward the members of the Tribunal (Stage 2 reasons at [380] – [382]); insistence that he did not understand the purpose of Stage 2 proceedings (Stage 2 reasons at [297] – [300]); and discursive submissions (Stage 2 reasons at [333], [339]) all served to substantially draw out the length of both the Stage 1 and Stage 2 hearings and significantly increase the costs associated with the application. The Stage 2 hearing, initially allocated to 2 days, required an extension by 3 further days entirely by reason of the respondent's conduct. 17. The respondent also failed to comply with multiple evidence deadlines, necessitating directions hearings on at least 6 April 2022 and 10 August 2022 in which [the] Bar Council was represented by junior counsel." The Respondents submission 1. The Respondents submission complied with the order made and was contained within four A4 pages. He did provide an annexure of one page, which listed authorities and provisions of the LPUL and the NCAT Act. 2. The submission was set out in segments named as: "Relevant Facts", "The Relevant Issues for Determination", "Respondent's outline of Arguments", "Alternatives Now Open to the Tribunal", and "Conclusion". 3. In relation to the segment titled "Relevant Facts", the Tribunal notes and addresses the following. 4. The Respondent was in error when he stated the Council did not seek an order for costs at the conclusion of the Stage 1 determination. The Council in its' initiating document sought an order for costs, as has been recited earlier in these reasons. Further, it was inappropriate, in the circumstances of this case, for the Council to seek its' costs at that time (end of Stage 1) given that there still remained the hearing of Stage 2. 5. The assertion by the Respondent that the Tribunal ignored his attempts to agitate the costs issue, is rejected. 6. The assertion, as a matter of fact or otherwise, that the Tribunal "protected the Council whenever the issue of costs" was raised by him is offensive and is rejected. 7. The assertion that the Tribunal had prejudged the issue of costs is offensive and is rejected. 8. The Respondent submitted that the Council had failed to provide evidence of its' engaging of its' solicitor (fee agreement), or the quantum of its' costs claim or any estimate of same. It was asserted inferentially that the provision of that evidence was necessary to enable the Tribunal to make the order the Council sought. Such a proposition was not supported by reference to legislative provisions or decisions of the Tribunal or other courts. The Tribunal does not find that the provision of evidence as to the quantum of the costs sought by the Council, is necessary before the Tribunal can make an order for its' costs to be paid by the Respondent. 9. In relation to the segment titled "The Relevant Issues for Determination", the Tribunal notes and addresses the following. 10. The Respondent addressed what he saw as the basis of the Council's cost application. He referred to clause 23 (1) of Schedule 5 of the NCAT Act and s 303(1) of the LPUL. The Respondent submitted that he "has never contended that he should not be immune from the mandatory costs order." He stated: "The Respondent continues to accept that the Tribunal must make a costs order against him. In so far as the Council has made extensive submissions on the issue of 'exceptional circumstances', it should not be entitled to any costs wasted on [that] issue." The submission that the Council should not be entitled to costs occasioned by it addressing, in its submission on costs, matters of law going to the application by Tribunals of the words "exceptional circumstances", is rejected. 11. In relation to the segment titled "Respondent's outline of Arguments", the Tribunal notes and addresses the following. 12. The Respondent submitted that the Tribunal "should not condone the Council's lack of transparency about the costs and expenses incurred" in the proceeding. Once again this was a reference to the fact that the Council had not provided detail of its' costs. 13. The submission of the Respondent referred to the requirement, he said, to take into consideration the provisions of s 3 of the LPUL, and ss 3 and 36 of the NCAT Act. He referred the Tribunal to the decision in Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25 at [25] and [30]. 14. The Respondent asserted that the Council in its' submission "cleverly framed suggestions that the Respondent must be punished". He sought any such suggestion should be rejected. The Tribunal sees no such suggestion in the Council's submission. 15. In relation to the segment set out under the heading "Alternatives Now Open to the Tribunal", the Tribunal notes and addresses the following. 16. The submission that the Tribunal recuse itself in this part of the proceeding is rejected. The evidence relied upon by the Respondent to make such an application is misstated by him as the transcript he has quoted demonstrates (Tcpt, 23 August 2022, p 46). 17. The Respondent submitted that should the Tribunal fail to recuse itself, in this hearing, then it should only award costs incurred "up to and including 15 September 2021 when the Tribunal reserved its' decision" in relation to the Stage 1 hearing. The Respondent submitted that "the costs order must be made as soon as the finding of [m]isconduct has been made, unless the Tribunal had reserved its' decision as to costs, which, in this instance, the Tribunal did not." 18. In relation to the last submission, the Respondent did not support that with reference to any particular legislative provision or any decision of a relevant Tribunal or Court where such a proposition has been upheld and applied. The Tribunal rejects that submission. 19. At the time the Tribunal concluded the hearing of Stage 1, it was not functus. The structure of the manner in which the parties, and the Tribunal, conducted the hearing, was that the Tribunal would firstly be required to determine if the Council had made out its' case with a finding of unsatisfactory professional conduct and/or professional misconduct. That determination would be contained within the Stage 1 portion of the hearing. Should it be necessary, as it was in this case, the Tribunal would then need to determine what, if any, protective order should be made arising from the Stage 1 findings. That would occur in a Stage 2 hearing. That manner in which proceedings under the NCAT Act and the LPUL are conducted, is well known and has been recognised by the NSW Court of Appeal in a number of its' decisions. 20. In the alternative to the above submissions, the Respondent submits that should the Tribunal determine to make a costs order against him, it should fix the quantum of that costs order. The Tribunal rejects that submission/request. The Tribunal is not, in this case, in a position to determine the amount of a costs order to be made. There is no evidence which the Tribunal could have regard to, in the determination of quantum. 21. Absent the basis for restricting the percentage of its' costs which it could recover, such as an order that the Respondent pay 50% of the Council's costs as agreed or assessed, the Tribunal is not in a position to determine the quantum of costs which the Council should be restricted to recover. Even were it appropriate for the Tribunal to set a maximum costs figure, or a percentage of its' costs, against the Council, this is not a case in which that should occur. 22. The Respondent at par 40 of his submission provided the only submission which addressed his financial and life circumstances. He submitted: "It would be a waste of valuable resources in view of the Respondent's financial circumstances which are self-evident and are unlikely to improve, given the Tribunal's decisions and the Council's determination to ruin the Respondent's reputation, as these proceedings have demonstrated, to date." 1. The submission above appears to be that the Tribunal ought not make an order which is immediately rendered nugatory by the Respondent's financial circumstances. If that be a statement of the law which ought to bind the Tribunal, it would not be applicable in this case, as the Respondent has provided no evidence as to his financial circumstances and there has been no opportunity for the Council to have tested any evidence in a hearing. The only evidence as to the financial circumstances of the Respondent is inferential, as is discussed further in these reasons. 2. In relation to the segment set out under the heading "Conclusion", the Tribunal notes and addresses the following. 3. The Respondent submits the Council's application for costs must be dismissed as there is no evidence that the Council is liable to pay any legal costs. If that is not a necessity to obtain a costs order, the Respondent submits that the quantum of any costs order made should be restricted to $1 as it has not provided evidence of the quantum it will seek following a cost order being made. 4. The above submission is rejected as the Council was not required to provide evidence of the costs it had or would incur during the hearings conducted in this case. The Respondent has not referred the Tribunal to any legislative provision or decided case which would support his submission. Likewise, the Tribunal can see no basis to restrict the quantum of costs the Council could seek to $1, or any other sum, even if that was an outcome capable of being ordered by the Tribunal. The Council's submission in Reply 1. The Council's submission was filed on 31 July 2023. In that submission, the Council addressed the following: 1. The submission is made pursuant to the Tribunal order of 1 June 2023. 2. Contrary to the Respondent's submission, the Council sought a costs order in the Application for Disciplinary Findings, filed 10 September 2020. 3. The Respondent's submission at pars 3-5, 12-14, 16-17, 19-20 and 32 continue to agitate an argument which he made repeatedly and which had the effect of further prolonging the Stage 2 hearing, thereby causing the Council to incur additional costs. 4. The Council rejected any alleged conduct, on its' part, which led to additional cost. 5. The Respondent has not demonstrated any reason why the orders required by cl 23(1) of Schedule 5 to the Civil and Administrative Tribunal Act 2013 (NSW) should not be made. The Respondent should be ordered to pay the Council's costs of the proceeding. Determination 1. In the determination of this cost application, it is necessary to address the requirement of the relevant legislation. Specifically, clause 23(1) of Schedule 5 to the NCAT Act and s 303 of the Legal Profession Uniform Law (NSW). Both those sections have been set out earlier in these reasons. 2. Both the above referred to sections, have a mandatory requirement for a respondent lawyer, who has been found guilty of unsatisfactory professional conduct or professional misconduct, to pay costs (including costs of a Council and the complainant). There is within those sections, a discretion given to the Tribunal to decide against making such a costs order, where it is satisfied that exceptional circumstances exist. In this case, the Respondent has been found guilty of both unsatisfactory professional conduct and professional misconduct. 3. There is no specific evidence given by the Respondent, in any part of the hearings conducted in this proceeding, in relation to his financial or life circumstance. The Tribunal is left to consider only those matters which arise from the evidence in the proceeding, which demonstrate an exceptional circumstance, thereby potentially engaging the discretion available to the Tribunal to depart from the requirement to make a cost order in favour of the Council. The Tribunal is alive to the possibility that the "exceptional circumstance" might arise from some conduct of the Applicant demonstrated during the hearing or in relation to the proceeding. The Tribunal also notes the decision of the Tribunal in Council of the Law Society of New South Wales v Ginges [2016] NSWCATOD 7 at [62]: "In our view, the current matter differs from Hinde and Webb as the Solicitor has not filed any evidence that supports a finding that exceptional circumstances exist and we have determined that it is appropriate to make an order for payment of the Law Society's costs pursuant to sch 5, cl 23(1) of the CAT Act." 1. In the Tribunal's decision of Council of the Law Society of New South Wales v Greenstein [2015] NSWCATOD 122 at [56], the Tribunal declined to find the Respondent had established exceptional circumstances, stating: "However, in the absence of evidence regarding his financial circumstances, the Tribunal is not satisfied that 'exceptional circumstances' exist. We are therefore satisfied that it is appropriate to order the Solicitor to pay the Law Society's costs, as agreed or assessed." 1. In this case, despite no specific evidence addressing the Respondent's financial and life circumstances, at the time of the determination of this application, there is available inferences which include that the Respondent is impecunious. He is still a bankrupt. He has represented himself during the majority of the hearings in this matter. Although he was represented by senior counsel in the Stage One hearing, the Tribunal was informed that counsel appeared pro bono. The Respondent does not hold a practising certificate which would enable him to practise as a barrister. He did inform the Tribunal that at some time after he failed to be able to renew his practising certificate, he had employment outside of Australia, however, that employment had ceased by the time the hearing commenced. Specific detail of the extent of indebtedness, which led to the Respondent's bankruptcy, is not in evidence. The Tribunal does not know what resources, contingent or otherwise, the Respondent might have which were not caught by his bankruptcy. If the NSW Court of Appeal makes the order recommended by the Tribunal in its' final decision, then the Respondent will have his name removed from the Roll of Barristers and the Australian Legal Professional Register, thereby making him ineligible to practise as a barrister. There is, however, no evidence as to other employment which he may be eligible to undertake, given his legal qualifications and experience. 2. In relation to any such inference of impecuniosity, the Council has referred the Tribunal to the decisions in Council of the Law Society of New South Wales v Webb (No 2) [2012] NSWADT 233 (Webb (No 2)); Council of the Law Society of New South Wales v Hinde [2011] NSWADT 20 (Hinde), and Council of the Law Society of New South Wales v Gallego (No 2) [2015] NSWCATOD 10 (Gallego (No 2)) at [52]-[54]. It is accepted that those decisions support the Council's submission that financial difficulty has at times been accepted as a qualifying circumstance when occurring in combination with other factors. 3. In Gallego (No 2), the Tribunal determined at [52]-[53]: "52. We have decided that this is also a case in which 'exceptional circumstances' exist, but only to the extent of providing partial relief from liability for costs. 53. In so deciding, we take account of the following matters. The degree to which the Solicitor is impoverished is comparable to that of the respondent in Hinde. His prospects of re-employment, at least in the immediate term, are low and that they might be reduced by being ordered to make a significant payment on account of costs. He raised relatively little opposition to the case brought by the Law Society, though the opposition that he did raise inevitably contributed to the scale of the costs incurred by the Society." 1. In Gallego (No 2), the Tribunal also referred to the decision in Hinde. It stated at [50] the following: "Ms Merkel relied on the decision of the Administrative Decisions Tribunal in Council of the Law Society of New South Wales v Hinde [2011] NSWADT 20. In that case, the Tribunal, having recorded a finding of professional misconduct against the respondent solicitor, went on to rule that by virtue of 'exceptional circumstances', he should not be ordered to pay the Law Society's costs. It based this ruling principally on his poor financial circumstances of the respondent solicitor and on the fact that he was 82 years of age. It summarised its reasons as follows, at [32 – 33]:- '32 The features of this case that support a finding of 'exceptional circumstances' are… the advanced age of the Respondent and his straitened financial situation. The relevant aspects of his financial situation are these: (a) he has a very small regular income, taking the form of a state pension; (b) he has no assets of significant value; (c) due in particular to his age, he has no significant prospect of obtaining gainful employment; and (d) any costs order against him could only be satisfied by small instalment payments commencing on a future date and lasting over a significant period of time. 33 In the context of disciplinary proceedings such as these, we are satisfied that these constitute 'exceptional circumstances'. They fall within the phrase 'out of the ordinary course, or unusual, or special, or uncommon', used in R v Kelly (Edward) [2000] QB 198 at 208 and adopted by the Queensland Legal Practice Tribunal in Legal Services Commissioner v Scott (No 2) [2009] QLPT 9 at [19]. The hearing of disciplinary proceedings against a legal practitioner who is both as far past the normal age of retirement and as impoverished as the Respondent is indeed a most unusual phenomenon.'" 1. At [51] of Gallego (No 2), the Tribunal referred to another decision of the Tribunal in Webb (No 2). There, the Tribunal held that an order for payment of only 50% of the Law Society's costs was justified in the light of 'exceptional circumstances'. At [52], it outlined these as follows:- "52. … The trial was longer than it need have been; the Solicitor remains liable to pay a very substantial sum towards the costs of the investigation of his practice; his financial circumstances are relatively poor …." 1. The Tribunal has had regard to the decision in Council of the New South Wales Bar Association v BRJ (No.2) which, inter alia, considered the meaning of the words "exceptional circumstances" as used in the relevant sections referred to above. In that decision, the Tribunal determined (at [22]): "… a circumstance is exceptional where it is one which is such as to form an exception, which is out of the ordinary course, or unusual, or special or uncommon. It need not be unique or unprecedented or very rare, but it cannot be one that is regularly, or routinely, or normally encountered in cases heard in the Tribunal in which findings of unsatisfactory professional conduct or professional misconduct are made. … The nature of the exceptional circumstances must be such as to justify displacement of the normal rule that a costs order should be made." 1. The Tribunal has also had regard to the words quoted in the submission of the Council which are from the High Court's decision in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 at [30]. 2. The financial circumstances of the Respondent in this case arise inferentially only. In the absence of specific evidence which would enable the Tribunal to find the Respondent was suffering financial hardship, it would be unfair to the Applicant who has not had an opportunity to explore such a possibility within the confines of the hearings. It is noted that the determination of the Tribunal to exercise the discretion and not make a costs order against the Respondent in the case of Hinde, was made following specific findings in relation to that Respondent's financial and life circumstances. 3. In relation to the possibility that the Applicant Council may have acted in a manner which would disentitle it to part or all of the costs it seeks to be paid, the Tribunal can identify no such conduct. 4. The question of the costs incurred by the Council in the proceeding was raised by the Respondent during the hearing of the Stage 2 proceeding, in the context of his seeking to have particulars of the quantum of the costs incurred, disclosed to the Tribunal, during that hearing. He sought that the Tribunal direct the Council to disclose what it had incurred in costs in the proceeding. The Tribunal declined to make that direction and informed the Respondent that any application for costs would be considered following the determination by the Tribunal of the Council's Complaint Application. As the Respondent had, at an earlier time been a practising barrister, it is reasonable to conclude he would have understood that the costs of the Council, for the hearing, would be very considerable. The Counsel was represented in the hearing by junior and senior counsel, together with an instructing solicitor. The hearing was conducted over eight hearing days. The Respondent disclosed his knowledge of the relevant costs sections during the hearing of Stage 2. He informed the Tribunal he understood that he was required to pay the costs of the Council. He had the opportunity, had he chosen to use it, to place evidence before the Tribunal in relation to his financial circumstances. The Tribunal, during the Stage 2 hearing, recommended the Respondent have regard to the NSW Court of Appeals' decision in Council of the NSW Bar Association v EFA (a pseudonym) [2021] NSWCA 339, when considering what evidence he might give in that hearing. 5. If the Respondent was able to convince the Tribunal that he is impecunious and likely to be so well into the foreseeable future, there still remain aspects of the conduct of the Respondent, in this case, which would warrant the Tribunal making the costs order sought by the Council. Those aspects relate to the conduct of the Stage 2 hearing by the Respondent. 6. During the Stage 2 hearing, the Respondent made numerous recusal applications against both the Tribunal as a whole, and different members of the Tribunal. All those applications were unsuccessful. Those applications took up a considerable amount of time in the hearing. Further, the Respondent sought to use the proceeding, in part, to establish that the Council, and/or different members of the Council or employees of the Council, had conducted a vendetta against him and/or acted in a manner which disadvantaged him unfairly. That aspect of his case took up a considerable amount of time during the hearing and did not demonstrate that which the Respondent sought to establish. In short, the hearing of Stage 2 took far longer than it needed to because of the conduct of the Respondent in that hearing. 7. In Fisher (No 2), the Tribunal considered an application for costs as sought by the Law Society. In determining that exceptional circumstances had not been established, the Tribunal stated at [51]-[55]: "51. In her written submissions received by the Tribunal on 30 August 2021, the Respondent reiterates the substance of her earlier costs submissions and submits that she should not have to bear the Law Society's costs on the grounds of hardship (including her financial, medical and emotional hardship and suffering). In considering whether "exceptional circumstances" exist for the purposes of cl 23(1) of Sch 5 to the NCAT Act and s 303(1) of the Uniform Law, and whether the Respondent should be relieved, in whole or in part, of the liability to pay the Law Society's costs in respect of the disciplinary proceedings, we have had regard to the same evidence the Respondent relied on in stage one considerations. 52. We take into account her status as a disability pensioner, and that she suffers from some medical issues, although it is not clear from the evidence the extent to which her medical issues affect her ability to engage in remunerated work (whether as a legal practitioner or otherwise). We do not have evidence before us as to whether the Respondent's prospects of employment generally are reduced (or substantially reduced) by being ordered to pay the Law Society's costs. 53. We also take into account that the Respondent receives only limited regular income, at the current time, although there is no evidence before us about the assets she owns, and whether she would face significant difficulties in paying the Law Society's costs. We also note the Law Society's statement that it would be open to negotiation with the Respondent as to reduced costs or a repayment plan. 54. We are not satisfied that there exist exceptional circumstances, on the basis of the Respondent's financial, medical or other personal circumstances, such as to provide a basis on which the Respondent should be relieved of liability to pay the Law Society's costs, whether in whole or in part, with respect to the disciplinary proceedings. 55. We also observe that, in contrast to the position of the respondent lawyer in Gallego (No 2), who raised little opposition to the Law Society's case, the Respondent contested most of the issues falling for determination in this matter, including by arguing that she was not a solicitor or a legal practitioner under the Uniform Law; the undertaking she gave did not apply on its terms to her circumstances; that the undertaking was "impossible" to perform and therefore not applicable; that the practising certificate condition was not authorised by the Uniform Law; and that the Law Society acted unreasonably and vexatiously in bringing disciplinary proceedings to the Tribunal. The Respondent made no admissions prior to the hearing. While entitled to contest every issue, the way in which she ran her case necessitated the Law Society responding to her submissions on each of the contested issues, and incurring costs accordingly. It cannot be said that the Law Society lengthened the proceedings, or incurred costs unnecessarily, in responding to the Respondent's arguments." 1. Considering all the matters set out above, the Tribunal concludes the order sought by the Council should be made. Only the process of enforcement, should the order be pressed, will determine the extent of the Respondent's ability to be able to meet the costs order. In this regard it is noted the Tribunal in Miller (No 2) concluded: "As she submitted, an order for costs should be made and the Bar Association should be free to take such steps as it may be advised to recover its costs." That Tribunal decided it should be for the Bar Association to decide whether to pursue its' costs order in a circumstance where there were indications that the Respondent could be unable to pay all or any of that order. It concluded that under the legislation, the Bar Association was entitled to have its' costs paid. Order 1. The order of the Tribunal is: 1. The respondent is to pay the costs of the Council of the New South Wales Bar Association as agreed or assessed. ********** 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: 02 August 2023