New South Wales Bar Association v Bryson (No. 2) [2003] NSWADT 167

CITATION: New South Wales Bar Association v Bryson (No. 2) [2003] NSWADT 167 DIVISION: Legal Services Division APPLICANT PARTIES: Council of the New South Wales Bar Association RESPONDENT John Henry Bryson FILE NUMBER: 012022 HEARING DATES: 30/09/2002, 01/10/2002 SUBMISSIONS CLOSED: 05/29/2003 DATE OF DECISION: 07/14/2003

BEFORE: Norton S SC - Judicial Member; Durbach A - Judicial Member; Mahon D - Member APPLICATION: Professional Misconduct - not of good fame and character MATTER FOR DECISION: Costs LEGISLATION CITED : Legal Profession Act 1987 CASES CITED: APPLICANT REPRESENTATION: A Blanch, solicitor RESPONDENT P Brereton SC, barrister ORDERS: Order that the barrister pay the applicant's costs in a sum agreed between the parties, and in the absence of such agreement, costs to be assessed in accordance with the Legal Profession Act, 1987.

1 In this matter the Tribunal composed of Dr A Bennett SC, A Durbach and D Mahon gave judgment on 29 January 2003 finding the barrister guilty of professional misconduct within the meaning of Section 127(1)(b) of the Legal Profession Act 1987. The applicant sought in the information an order under Section 171E(1) of the Act that the barrister pay the costs of the application. 2 The Judicial Member of the original Tribunal, Dr A Bennett SC, made directions on 13 March 2003 as follows: (1) Applicant to file and serve submissions within 7 days. (2) Respondent to file and serve submissions in reply within a further 7 days. 3 Despite those directions submissions on behalf of the applicant were not received by the Tribunal until 23 April 2003 and those from the respondent were filed on 29 May 2003. Prior to the parties filing the said submissions the Judicial Member, Dr Annabelle Bennett SC was appointed to the Federal Court of Australia. By consent of the parties she was replaced as Judicial Member by Sharron Norton SC. 4 The power to order costs in proceedings in the legal services division of the Administrative Decisions Tribunal is contained in Section 171E of the Legal Profession Act. That section provides: (1) The Tribunal may make orders requiring a legal practitioner or interstate legal practitioner whom it has found guilty of unsatisfactory professional conduct or professional misconduct (or any solicitor corporation) to pay costs (including the costs of the Commissioner, the appropriate counsel and the complainant). (2) If, after it has completed a hearing relating to a complaint against a legal practitioner or interstate legal practitioner, the Tribunal is satisfied that the practitioner is not guilty of unsatisfactory professional conduct or professional misconduct, the Tribunal may (but only if it considers special circumstances so warrant) order payment from the public purpose fund to the practitioner of the legal practitioners costs. (3) An order for costs: (a) Maybe for a specified amount or an unspecified amount, and (b) If for an unspecified amount, may specify the basis on which the amount is to be determined,