The Legal Services Tribunal of New South Wales CITATION : Mark Phillip Symonds [1994] NSWLST 20 PARTIES : Mark Phillip Symonds FILE NUMBER(S) : of 1993 CORAM: Mr G B Molloy (Presiding Member) - Mr A Martin - Mr N. Reidy CATCHWORDS: :- Breach of the solicitor/client relationship LEGISLATION CITED: Legal Profession Act 1987 Legal Profession Reform Act 1993 Peters and Peters (1982 FLC 91-202 ; Melbourne Money Pty Ltd v Bryant (Victorian Supreme Court Appeal Division, unreported 12 August, 1994, No. 9957/92; In the matter of Ian Gordon Dun (1994 3 LPDR 5 at 7) ; in the matter of Spero Pitsikas (unreported, No. 23 of 1993 (Judgment 29 April, 1994); Wilson v McDougall (1987) 11 NSW LR 241 ; Darcey v Pre-Term Foundation Clinic (1983) 2 NSWLR 497 ; R v Forbes (1972) 127 CLR ; Miller v Ryan (1980) 1 NSWLR 93 ; CASES CITED: Malfanti v Legal Profession Disciplinary Tribunal (1993) 4 LPDR 17 ; Latoudis v Casey (1990) 97 ALR 45; Anstee v Jennings (1935) VLR 144 ; R v Scott (1992) 109 ACTR ; Milosevic v GIO of NSW (1993) 31 NSWLR 323 ; Tansell and Tansell (1977) FLC ; Bridie v Messina (1965) 66 SR (NSW) ; Maurice Gordon Kriss (No. 8 and 9 of 1993 unreported); Wentworth v Wentworth, Supreme Court Equity No. 3748/89, unreported) ; Carol Foreman DATES OF HEARING: 12 November 1993; 14 April 1994; and 31 August 1994. DATE OF JUDGMENT: 12/15/1994 LEGAL REPRESENTATIVES: Mr I. Wales (instructed by Mr L. Pierotti) for the Law Society of New South Wales; Mr P. Strasser (instructed by Messrs Milne, Berry & Berger) on behalf of the Solicitor. JUDGMENT: Complaint filed by Society earlier dismissed. Tribunal considers question of costs. Background IT IS A MATTER OF PUBLIC RECORD THAT THE LAW SOCIETY of NSW (the Society) commenced proceedings in this Tribunal against Carol Foreman on 6 August, 1992 seeking her removal from the Roll of Solicitors. As part of the Society's case against Ms Foreman it challenged her veracity and her fitness to practice. It is not necessary to set out in this Judgment the allegations made against Ms Foreman other than to say that it was always part of the case against her that she was a person who could not be believed and that her word as a solicitor was not of sufficient quality that it could be relied on by fellow practitioners or in any Court. It is also a matter of public record that the Society filed a formal Complaint in the instant proceedings against Mr Symonds on 2 October 1992 and as part of, and as the lynch pin of the Society's case, it relied upon an Affidavit filed by Ms Foreman in certain proceedings in the Family Court of Australia in which Ms Foreman made certain very serious allegations against the solicitor so serious as to encourage His Honour Moss J to refer the matter to the Society, His Honour Moss J observing that the allegations had not been tested in any way and all that he was doing was passing them on to the Society effectively for investigation and such action as the Society thought appropriate and proper in the exercise of its public protective role. The allegations made by Ms Foreman, if true, would have been capable of amounting to a breach of the solicitor/client relationship sufficient to have justified a Complaint being filed by the Society against the solicitor in this Tribunal. There is no need to enumerate those allegations because they were never proved and it would be quite inappropriate, in our view, to publish those allegations in this Judgment in the particular circumstances pertaining to this matter. The Society filed a formal Complaint against the solicitor alleging that the solicitor had breached his client's confidentiality, being a Complaint that arose out of the Foreman allegations, and that the solicitor had wilfully breached Legal Profession Act section 61, being a complaint that arose out of another unrelated matter. Withdrawal of complaint When the matter firstly came before the Tribunal for hearing 12 November 1993 counsel for the Society sought leave to withdraw the Complaint. Counsel for the solicitor, rather than agreeing to the Complaint being withdrawn, sought an order that the Complaint be dismissed. It became clear during the course of argument that the Society did not wish to pursue any further or other matters against the solicitor neither did the Society wish to re-activate, even after any withdrawal, the matter the subject of the current Complaint. In the matter of Terrence J. Mullane (No. DT 23 of 1992, Judgment 3 May 1993, unreported) the question arose as to whether the Tribunal had the power to dismiss a Complaint. The Tribunal said: "It seems to us that the Law Society is the repository of the trust of the Parliament in the prosecution of matters involving professional conduct of solicitors and solicitor's clerks in a not dissimilar role to that of the Crown in criminal matters. If the Law Society, upon proper advice, seeks to withdraw a Complaint, there is nothing, it seems to us, in the Act or as a matter of law or practice that imposes any impediment upon that course of action being adopted by the Law Society or accepted by the Tribunal." Those words properly set out, in our view, the power of this Tribunal to dismiss Complaints at the request of the Society. If the Society wishes to withdraw a Complaint against a solicitor or a solicitor's clerk, then there is no reason why the same principle, that is regularly adopted in criminal matters ought not to be applied in these circumstances, i.e. the Complaint is withdrawn and dismissed. It is inappropriate, in our view, that there is simply a withdrawal of a Complaint - the solicitor (or a solicitor's clerk) is entitled to have his/her name cleared so that there is no suggestion of any black mark or impropriety against his/her name, so that it cannot be suggested that "where there is smoke there is fire" and the solicitor or a solicitor's clerk is entitled to walk away from this Tribunal without any blemish at all and without the fear that the Society might re-activate the matter(s) the subject of the Complaint (see Peters and Peters (1982 FLC 91-202 at 76,068). See also Melbourne Money Pty Ltd v Bryant (Victorian Supreme Court Appeal Division, unreported 12 August, 1994, No. 9957/92) where that Court held that a discontinuance or withdrawal does not preclude further proceedings. If a party desires that a matter be finally determined, then it should seek and obtain a dismissal. If all that occurs is discontinuance or withdrawal, the matter is not res judicata and there is no issue estoppel. Consequently, the Tribunal ordered that, upon the application of the Society and the application of the solicitor and by consent the Complaint against the solicitor in this matter be dismissed. Duty of the Law Society In an Affidavit filed in the Family Court Ms Foreman made serious allegations, in quite express terms, against the solicitor. Those allegations, if proved, were capable of amounting to professional misconduct, the allegations were untested because the matter was simply not argued before the presiding Judge, Moss J, and His Honour, quite properly in our respectful opinion, referred the allegations to the Society. The Society submitted that it did not have an obligation to test the evidence in advance. The submission was that the Society was not entitled to say: "We really do not think the Tribunal will accept that particular witness or this particular witness. We will try the case ourselves, as it were, and if we do not think that it comes up to scratch, we will not refer it on to the Tribunal". The Society submitted that it would be fairly trenchantly criticised in public if it took the view that it was the arbiter of these questions and not the Tribunal. The Society's submission was that it had a public duty, and perhaps even less discretion than resides in a police officer when a domestic violence allegation is made, because if it takes the view that the complaint may involve a question of professional misconduct it must be referred to the Tribunal. But it is not an argument to say that simply because a complaint involves a question of professional misconduct it must be referred to the Tribunal. Legal Profession Act, (prior to 1 July, 1994) section 133(1) requires the Law Society Council to "conduct an investigation into each complaint". Section 134(1) gives the Council a number of alternative courses of action "after it has completed an investigation into a complaint". By the Legal Profession Reform Act 1993 the whole of Part 10 of the Legal Profession Act 1987 was omitted and a new Part 10 dealing with complaints and discipline inserted in lieu. A study of the new Part 10 also shows that it is axiomatic that both the Law Society Council and the Legal Services Commissioner have power to investigate complaints. The Commissioner may refer a complaint to the Council if the Commissioner does not investigate it (Section 142(1)) or the Commissioner may conduct a investigation into a complaint instead of referring it to the Council for investigation, or the Commissioner may take over the investigation of a complaint from the Council (Section 147A(1)). The Council has a statutory obligation under section 148(1) to investigate each complaint referred to it by the Commissioner or initiated by the Council. Under section 149(1) the Commissioner is to monitor investigation by the Council into complaints and, under sub-section (2) the Council is to report to the Commissioner on the progress of any investigation if required so to do by the Commissioner. Under section 150 the Commissioner may give to the Council directions on the handling of a complaint being investigated by the Council. Indeed, under sub-section (2) those directions may include directions to pursue a particular line of enquiry. There are numerous other sections dealing with investigations of complaints under the Legal Profession Reform Act 1993 and it is significant to note that section 155(2) states that the Council or the Commissioner must institute proceedings in this Tribunal with respect to a complaint against a legal practitioner if satisfied is there is a reasonable likelihood that the legal practitioner will be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct. If, however, they are not so satisfied the Council or the Commissioner may, under sub- section (3) reprimand the legal practitioner by consent or dismiss the complaint. Indeed, under sub-section 4 the Council (and the Commissioner) are obligated to dismiss a complaint if satisfied there is no reasonable likelihood that the legal practitioner will be found so guilty by the Tribunal. In our view it is important to recognise these legislative amendments to the Legal Profession Act. Although it is true that it is not exactly spelled out in the original Legal Profession Act, section 134, and under which Act this instant Complaint is brought, there is no doubt that section 134 enjoins the Council to complete an investigation prior to bringing the matter to the Tribunal and that it cannot bring a matter to the Tribunal unless it completes an investigation. In our view it is simply not sufficient for the Council to receive a complaint from whatever source and simply rely upon that complaint, without any investigation or without any attempt to see whether the complaint is likely to succeed on the available evidence or to see whether the factual issues raised in the complaint are corroborated. It seems to us that any prosecuting authority has a duty to a respondent to a complaint to try and test the evidence to see whether it will stand up to examination by a critical Tribunal which adopts a fairly high standard of proof before being satisfied that a legal practitioner is guilty of professional misconduct. Indeed, in one's ordinary legal practice one does not necessarily believe everything that a client tells one - one tries to test it by a careful examination of the available evidence including, in particular, corroborative evidence, and even more so when it is clear from the client's instructions that the matter will be hotly contested. One would think that, in the ordinary case, one would have a duty to one's client to ensure that, notwithstanding the enthusiasm of the client to embark upon litigation, the case for the client is well supported. So it seems that there is no absolute duty on the Society to bring proceedings against a legal practitioner even before the commencement of the Legal Profession Reform Act 1993. And this conclusion is supported by the fact that there is no time limit imposed in either legislation that requires the Society to bring proceedings in the Tribunal within any particular time after facts are drawn to its attention that may support a formal Complaint. This is a particularly important observation in this matter. The conduct of this complaint When the matter was referred to the Society by Moss J the Society did in fact carry out an investigation. It put the allegations squarely before the solicitor and the solicitor responded in considerable detail, and at considerable expense to himself. The solicitor clearly regarded it as a very serious matter and it must have been clear to the Society that any proceedings instituted in this Tribunal against the solicitor would be strenuously defended. Subsidiary evidence was provided by a Mr Avidan, but unarguably the primary evidence was to be obtained by the Society relying upon the Affidavit of Ms Foreman sworn 22/8/91 and filed in the Family Court. That Affidavit consisted of some 363 pages. That Affidavit in the Family Court proceedings was untested because Ms Foreman withdrew her claim to rely upon a costs agreement (which was the issue before the Family Court) before the time came for her to be cross- examined on her Affidavit. The Society commenced proceedings against Ms Foreman on 6 August, 1992 seeking her removal from the Roll of Solicitors. The Society then commenced proceedings against Mr Symonds on 2 October, 1992 relying almost totally upon Ms Foreman's said Affidavit and, presumably, without interviewing her or endeavouring to ascertain from her whether the contents of the Affidavit was true or not and in circumstances where it had already commenced proceedings against Ms Foreman and in those proceedings was challenging her veracity and her fitness to practice. It must have been obvious that little or no reliance could have been placed by the Society upon Ms Foreman's Affidavit. On the one hand the Society was relying upon her as its prime witness and on the other hand the Society was prosecuting her and alleging before the Tribunal and later before the Court of Appeal that she was a person upon whom one could not rely and was not a person who told the truth. It is fundamentally inconsistent, to say the least, to sue A and at the same time sue B on the basis that the primary evidence against B is the evidence of A. Rhetorically, what would the Society have said of a solicitor who conducted his practice in that fashion? The Society submitted that it was important to focus, not on why the complaint was abandoned but why and in what circumstances it was commenced. If that submission is correct, then the whole course of the matters preliminary to the filing of the formal Complaint should have rung alarm bells in the Society warning it that its case against the solicitor was perhaps very thin, particularly having regard to the lengthy and detailed denials of the solicitor of the acts alleged against him by Ms Foreman and the fact that the Society had never interviewed Ms Foreman but, to the contrary, had commenced proceedings against her seeking her removal from the Roll. There is absolutely no question in our mind that, firstly, the Society had (and has) no absolute duty to bring proceedings against a legal practitioner in this Tribunal and, secondly, that it must only so do after very careful deliberation and carefully weighing up the evidence and the chances of success and only after a careful investigation, careful interview of the witnesses and a professional assessment of the chances of success. Perhaps to use a business phrase: the cost effectiveness of commencing and maintaining proceedings. It is a very serious matter to bring disciplinary proceedings against a solicitor. It is a very serious matter to find a solicitor guilty of any sort of professional misconduct or unsatisfactory professional conduct (see in the matter of Ian Gordon Dun (1994 3 LPDR 5 at 7) and in the matter of Spero Pitsikas (unreported, No. 23 of 1993, Judgment 29 April, 1994) and it is also a very serious step for the Society or the Commissioner to file a Complaint against a legal practitioner alleging professional misconduct or unsatisfactory professional conduct. The consequences to a legal practitioner who is served with such a Complaint are highly traumatic. At the very least his/her professional reputation is being put at risk and, at the most, he/she is likely to have their name removed from the Roll. Furthermore, the result can be extremely expensive because the legal practitioner should properly obtain independent legal advice as to his/her position, be legally represented and generally be put to a great deal of time and expense in resisting the Complaint if it is to be contested. Consequently, it must follow that proceedings should only be brought in this Tribunal after careful consideration and weighing up all the facts. The result These proceedings commenced in October, 1992. They were strenuously defended. They were the subject of interlocutory proceedings and an interlocutory judgment and various orders. The Society, through its counsel, during the course of argument, complained that the solicitor had placed obstacles in its way in having the Complaint listed for hearing and heard. What else did the Society expect? The solicitor put up a strenuous fight to save his professional reputation and to retain his practising certificate without blemish. At the end of the day it must be conceded that the solicitor had succeeded - the Society sought to withdraw the Complaint and the Complaint was dismissed. When one's professional reputation and livelihood is put on the line it is difficult to see why there should be any objection to a legal practitioner resisting the proceedings with all legitimate means and where at all times both before the filing of the Complaint and thereafter the solicitor has stoutly maintained his innocence. Application for costs The hearing before this Tribunal was almost totally devoted to an application strenuously made by the Solicitor and strenuously opposed by the Society for an order that the Society pay the Solicitor's costs. The solicitor says, with some justification, that he has always maintained his innocence, that he maintained his innocence in very detailed submissions to the Society prior to the filing of the Complaint, that he has maintained his innocence after the filing of the Complaint, that he had asked the Society to withdraw the Complaint prior to the day on which it was first listed for hearing and the Society refused so to do and his position has been vindicated by the fact that, ultimately, but after a great deal of anguish and expense, the Complaint was in fact formally withdrawn and dismissed. The solicitor says that costs should follow the event. What is the power in this Tribunal to make an order for costs? In Wilson v McDougall (1987) 11 NSW LR 241 at 243 Newman J. said: "It is trite law that costs are entirely the creature of statute and if the statute granting power to a Court to act in a particular way does not give the Court an express power to award costs the Court has no such power. Common Law Courts whether superior or inferior have no jurisdiction to order costs." The only exception to this appears to be Courts of Chancery in England because those Courts possessed power inherently unlike the Common Law Courts. So, it is said, unless there is an express power to award costs a Court or, indeed, so it would seem, a domestic or inferior Tribunal, has no power to award costs unless that power is found in the statute under which the Court or Tribunal is constituted, but with one exception. This exception is based upon the concept of "inherent power" or "inherent jurisdiction" and, it is said, one illustration of the use of a Court's inherent jurisdiction is to prevent abuse of its process. In Darcey v Pre-Term Foundation Clinic (1983) 2 NSWLR 497 a Local Court Magistrate set aside a Subpoena on the basis that it was not bona fide. The Magistrate then awarded costs to the person upon whom the Subpoena had been served. On appeal, Hunt J at 503-504 said that: "the inherent power to award costs in these circumstances exists independently of and is not necessarily to be implied only from, the statutory provisions conferring jurisdiction upon the Court...The jurisdiction of Courts of Petty Sessions to control abuses of their process was confirmed in Miller v Ryan (1980) 1 NSWLR 93 at 109. An order for costs made by such a court in relation to an abuse of its process would not be such as would go beyond the protection of its function as a court constituted with the limited jurisdiction afforded by its statute: R v Forbes (1972) 127 CLR 1 at 8. In Wilson v McDougall the Magistrate found that the actions of Wilson in bringing the proceedings and her actions after proceedings had been brought, constituted a blatant abuse of process. Her actions would, per Newman J on appeal (at page 245) "bring the administration of justice into disrepute amongst right-thinking people unless the court were to make an order providing an appropriate remedy to counteract the mischief she has caused." An order for costs was an appropriate remedy. Newman J went on to make it clear that he did not believe that the inherent power extended to making orders for costs "in an ordinary case". He stated (at page 245): "Even in a case where proceedings brought were misconceived but not mischievous it would be difficult to see how the court's inherent power would extend so far." But in the case before him the proceedings and their conduct were not only misconceived but also mischievous and His Honour said that "it is this latter element which I believe creates a vehicle which enables the court to use its inherent jurisdiction and award costs". So the primary factor, absent any statutory power, to activate a Court's inherent power to award costs is its inherent jurisdiction to prevent abuse of its process. In Malfanti v Legal Profession Disciplinary Tribunal (1993) 4 LPDR 17 the Court of Appeal in allowing an appeal from a decision of this Tribunal made an order for costs against the Society. One can glean from the majority decision that the reason why the Court of Appeal acceded to that request was that the Society pressed ahead with its case on six complaints when there was no evidence to support them and that the counsel for the Society persisted in making an allegation when there was no evidence to support that allegation. The Court of Appeal accepted that there is a public interest role to be played by the Society, a role to which this Tribunal averred in Mullane, and that because there were various apparently suspicious entries in a trust account ledger those constituted reasonable grounds to refer the debit issues to the Tribunal. Consequently, the majority of the Court of Appeal fashioned an order to the effect that the Society pay two-thirds of the solicitor's costs of the hearing before the Tribunal and all of the costs of the hearing before the Court of Appeal. Meagher JA was more scathing - he was of the view that the Society had exercised its power to proffer a charge of professional misconduct against the practising solicitor irresponsibly, it advanced against the solicitor a series of charges without ever ascertaining that it had prima facie evidence of those charges and he regarded the behaviour of the Society as "misconduct" and he would have made an order for indemnity costs. The gravamen of the costs orders in Malfanti seems to be that there was, in fact, an abuse of process by the Society in preferring charges against a solicitor when there was no evidence to support those charges. It is not clear, in the instant case before us, whether it is alleged that the Society has engaged in conduct that is an abuse of process. There seem to be conflicting statements made on behalf of the solicitor but, in any event, we are not inclined to find that there has been an abuse of process. Certainly, in our view, the conduct of the Society is one that is open to quite severe criticism. To commence professional misconduct proceedings against a legal practitioner relying upon the word of another practitioner against whom the Society had already commenced proceedings and in which proceedings the Society was alleging the other practitioner should not be believed and was guilty of such serious misconduct as to warrant her removal from the Roll, a result which, ultimately, the Court of Appeal agreed to, is a quite extraordinary course of action. A solicitor in private practice would have, quite rightly, been criticised for similar conduct. There is no reason why the Society could not have awaited the outcome of the former matter and, looking at it dispassionately, the Society should not have relied upon an Affidavit sworn by someone who had not been interviewed by officers of the Society, who had not made a statutory declaration in the instant matter before the Tribunal and who was already the subject of an application to remove her name from the Roll. As in Malfanti, however, there was other evidence that may have (and we shall never know) supported a conclusion that the solicitor breached the confidence of a client. If additional reasoning is required, that is probably enough to persuade us that there was not an abuse of process. That being the case, the state of the law seems to be that there is no inherent power in this Tribunal to make an order for costs outside the terms of the statute. It is, from the point of view of the concept of "justice" an unfortunate conclusion because it means that individuals within our Society may have proceedings brought against them which proceedings may not constitute an abuse of process but which proceedings they may successfully defend or which proceedings may be withdrawn and dismissed. But in all those cases, as we all know, those individuals within our community have been put to considerable expense and personal trauma, "depression and anguish" (per Meagher JA in Malfanti at 23) yet cannot recover even their basic legal costs in successfully resisting the actions brought against them. There seems to be an inherent injustice in that conclusion. This inherent injustice appears to have received judicial recognition. In Latoudis v Casey (1990) 97 ALR 45, Mason CJ (at 49) said: "In ordinary circumstances it would not be just or reasonable to deprive a defendant who has secured the dismissal of a criminal charge brought against him or her of an order for costs. To burden a successful defendant with the entire payment of the costs of defending the proceedings is in effect to expose the defendant to a financial burden which may be substantial, perhaps crippling, by reason of the bringing of a criminal charge which, in the event, should not have been brought. It is inequitable that the defendant should be expected to bear the financial burden of exculpating himself or herself...in exercising its discretion to award or refuse costs, a court should look at the matter primarily from the perspective of the defendant. To do so conforms to fundamental principle". Toohey J (at 66) said: "...ordinarily it would be just and reasonable that the defendant against whom a prosecution has failed should not be out of pocket." McHugh J (at page 69) also adopted the "just and reasonable" principle and said: "The fact that the informant has acted in good faith in the public interest...is not a ground for depriving the defendant of his or her costs". In Anstee v Jennings (1935) VLR 144 Mann J said (at 148): "an order for costs in a Court of Petty Sessions...should have nothing to do with the reasonableness of the informant's action. It is a matter of giving proper indemnity to a successful defendant for costs to which he has been put without lawful justification". And in R v Scott (1992) 109 ACTR 20 Higgins J said (at 27): "The discretion to order costs is appropriately exercised against the Crown in circumstances where it acknowledges the weakness of its case against a person and declines to prosecute." Although it is true that the above cases arose out of legislation that permitted orders for costs to be made, the principles set out in the above judicial statements are principles of basic justice which would apply to the instant matter were it not for the overriding principle that in cases other than those involving abuse of process no order for costs can be made unless permitted by statute. This basic principle, howsoever unjust, can be underlined by the observation that even where a statute permits an award of costs, the statute itself may limit the costs that may be awarded, as to amount and as to circumstances (for example, workers compensation legislation) and even as to the type of costs (see Milosevic v GIO of NSW (1993) 31 NSWLR 323 where it was held that the District Court did not have power to award costs on an indemnity basis but could so do only on a party/party basis - a decision that the Court of Appeal reached with "unconcealed regret" and which resulted in an amendment to the District Court Act). We therefore need to look at the Legal Profession Act to see whether and, if so, in what circumstances an order for costs can be made. Section 171E(2) (formerly section 163(6)) is in the following words: "171E(2)If, after it has completed a hearing relating to a complaint against a legal practitioner, the Tribunal is satisfied that the practitioner is not guilty of unsatisfactory professional conduct or professional misconduct the Tribunal (but only if it considers that special circumstances so warrant) order payment from the Statutory Interest Account to the practitioner of such amount, by way of costs, as it determines." The statute, therefore, does entitle the Tribunal to make orders for costs in favour of a legal practitioner, but only under certain circumstances. Firstly, it must have "completed a hearing". It was submitted by the Society that the withdrawal and dismissal of a Complaint prior to witnesses being called was not a completion of a hearing. It seems to us, however, that that is a very narrow approach to the interpretation of that section. In Tansell and Tansell (1977) FLC 90370 it was held at 76,629 that the term "completed proceedings" in the Family Law Act, section 31 could be construed to include dismissed proceedings. In Peters and Peters (1982) FLC 91-202 the Full Court of the Family Court of Australia said, quite clearly, at 76,068: "a proceeding is completed by an order or by dismissal". Indeed, the Full Court explained the difference between proceedings that are withdrawn and proceedings that are dismissed. The Court said: "It has already been shown that the ordinary meanings of the words `withdrawn' and `completed' are quite distinct. A proceeding is completed by an order or by dismissal. A withdrawal on the other hand, involves no determination on the merits and does not preclude a further application for the some relief". These proceedings, for the reasons set out above, were dismissed. The question is: has there been a "hearing" within the terms of section 171E(2) (or the former section 163 (6A)? We are of the view that, upon a dismissal of a Complaint, the Tribunal has completed the hearing of the Complaint. There has, to all intents and purposes, been a determination of the Complaint by the Complaint being dismissed in circumstances where no further Complaint can be brought against the legal practitioner in reliance upon the same allegations. To restrict the word "hearing" to a meaning that would require, presumably, the Tribunal to conduct a full hearing, is unnecessarily restrictive and would unnecessarily limit the value of the sub-section. Effectively, what the Society has done is offered no evidence and by dismissing the proceedings the Tribunal has completed the hearing and has effectively found the practitioner not guilty of professional misconduct. That is the natural consequence of offering no evidence - an accused is entitled to an acquittal which incorporates a finding of "not guilty" and similarly a legal practitioner is entitled to a dismissal which incorporates a finding of "not guilty of professional misconduct" (under section 164(6A) prior to 1 July, 1994) or, under the Legal Profession Reform Act 1993, "not guilty of unsatisfactory professional conduct or professional misconduct" (Section 171E(2)). Indeed, as was observed earlier in this Judgment, a dismissal results in a res judicata and there is an issue estoppel. Further support for this view can be found in the Full Supreme Court decision of Bridie v Messina (1965) 66 SR (NSW) 446, affirmed in the High Court on a different ground in Messina v Bridie (1966) 114 CLR 354. In the Supreme Court it was held that a certificate of dismissal under the Crimes Act 1900-1961, section 499, supports a plea of autrefois acquit and that plea is a "hearing upon the merits" within the terms of section 498. The Court examined the history of section 498, found that its original predecessor referred to a "hearing" without the additional words "upon the merits" and subsequent legislation included those additional words. The Court said that where a complainant does not attend to prosecute a charge and offers no evidence, that amounts to a "hearing", but where the complainant appears, the respondent appeared, issue was joined by the plea of autrefois acquit, the plea was upheld, the complainant was constrained to admit the truth of the matters necessary to support it and the information was dismissed. Sugerman J at 453 said that a hearing would not have been "on the merits" if the decision was "not final but analogous rather to a non-suit, or if, for some such reason as withdrawal, want of jurisdiction, non-compliance with some preliminary requirement, defect in the information, or other technical or procedural informality or irregularity it did not result, or could not have resulted, in a decision on the merits, final in its nature and capable of supporting (in criminal cases) a plea of autrefois acquit or autrefois convict...Elements such as those mentioned were absent in the present case, in which the hearing in fact resulted in a final decision on the merits...I can see no reason why...the appellant should not be entitled to rely upon it as a...bar to a prosecution for the same offence." His Honour also observed that the plea was conceded by the complainant, "no evidence was in fact called", and the plea was sustained. In the instant case before us, the solicitor joined issued on the Complaint and the Society offered no evidence, sought to withdraw and, consistent with proper principles, the Complaint was dismissed. There is, of course, no requirement under the Legal Profession Act for the Tribunal to have completed a hearing "on the merits" - all it needs to do is "complete a hearing" as one of the pre-requisites for making on order for costs and it is adequately clear from the historical researches of Sugerman J and summarised at page 452 is that a "hearing" simpliciter was regarded as having taken place where "a complainant did not intend to prosecute the charge, or offered no evidence in support of it" as in the case now before the Tribunal. And even more so because in the instant case it was in fact a hearing "on the merits" (although those words are not in the Act) for the reasons set out above, so that on any view it cannot be said, in our opinion, that this Tribunal has not "completed a hearing". Secondly, the next hurdle that the solicitor has to overcome is that he must satisfy the Tribunal that there are "special circumstances" that warrant an order for costs being made in his favour from the Statutory Interest Account. Are there "special circumstances" in this case sufficient to so warrant? In our view, there are such special circumstances. These can be conveniently enumerated as follows: 1. No Affidavit or Statutory Declaration was filed by Ms Foreman. The best that the Society could do was to annex a copy of Ms Foreman's Affidavit filed in the Family Court to a statutory declaration of the Society's Professional Conduct Manager. The practice, and well known practice, of this Tribunal is that evidence is taken by way of statutory declaration, the deponents of which are available for cross-examination if required. There was a contested interlocutory hearing which was directed partly to this issue but the main thrust was whether the Society had properly particularised its case in sufficient detail to enable the solicitor to respond. The ruling was that "the solicitor has been given fair and proper particulars to enable him to be properly aware of the nature of the Complaint made against him by the complainant. He is in a position to prepare his own response as he may be advised and proceed to the hearing without risk of surprise". The Tribunal that dealt with the interlocutory application dealt with the question of the Foreman affidavit as follows: "It is said that there are no specific rules about filing declarations. There is an obligation on the complainant to disclose the nature of its complaint. The purpose of the declaration of (the Professional Conduct Manager) is to outline the Complaint... The question of admissibility is a question that should be considered by the Tribunal as may ultimately be presiding at the hearing of the Complaint". With respect, although we may agree that the solicitor had been given fair and proper particulars we do not agree with the observation that the purpose of the declaration of the Professional Conduct Manager is simply to outline the Complaint. The Complaint itself is outlined in the formal Complaint document that is filed in the Tribunal. The formal Complaint should set out the particulars of the charges against the solicitor with sufficient clarity and precision so that the solicitor is aware of the case that he is called upon to answer. That has got nothing to do with any statutory declaration. Statutory declarations go to evidence - this Tribunal is bound by the rules of evidence - and it is axiomatic, in our view, that the Society should file and serve the statutory declarations constituting its evidence and upon which it seeks to rely. Indeed, upon any directions hearing on the first return date that should be the type of order that is made. The statutory declaration in this case annexing a copy of an affidavit filed in the Family Court is not, with great respect, evidence of the content of that affidavit. All it is evidence of the fact that that affidavit was filed in the Family Court - that does not take the matter much further - it is not an affidavit or declaration filed in this Tribunal. It is important to understand that the primary reason behind the failure of the Society in this matter was its failure in the first instance to obtain proper admissible evidence in this Tribunal from Ms Foreman. Of course, the chances of Ms Foreman co-operating with the Society were, no doubt, remote, considering the fact that it was the Society which was attempting to have her name removed from the Roll. However, this illustrates the absolute desirability of obtaining the evidence of witnesses in admissible form. After all, why should a legal practitioner be required to put on his/her evidence in admissible form in answer to material that is unarguably not in admissible form? Indeed, that would be, and was, an outrageous imposition. It is quite clear that these proceedings would never have been commenced if the Society had been obliged to have carried out a proper investigation and distilled its evidence into suitable forms of statutory declaration. It is not sufficient, in our view, to file unsworn documents in this Tribunal and then call upon the legal practitioner to respond on oath. And this principle is axiomatic, in our view, when the primary evidence relied upon by the Society is not in admissible form and not sworn to by the relevant witnesses in the proceedings before the Tribunal. Whether they are sworn to in another Court or Tribunal is not helpful - it is this Tribunal that is hearing the matter and it is this Tribunal that must be satisfied applying the rules of evidence and it is this Tribunal before whom the evidence is to be led. 2. The solicitor, prior to 12 November, 1993 requested the Society to withdraw the Complaint. The Society refused so to do. On 12 November, 1993 the Society sought to withdraw the Complaint and the Complaint was dismissed. 3. The solicitor had obtained independent legal advice and counsel had been briefed by him. There is no doubt that the solicitor had incurred considerable expense in the preparation of his case for a hearing where, at all times, his right to practice as a solicitor was "on the line". This factor itself may not necessarily constitute a "special circumstance" but adds to the factors that, taken together, constitute "special circumstances". 4. By seeking to rely on the evidence of Ms Foreman as the primary evidence against the solicitor and at the same time seeking to remove Ms Foreman from the Roll is a fundamentally inconsistent approach to litigation. 5. The Society offered no explanation as to the reason why it sought to withdraw the Complaint. Counsel for the Society, fairly, stated that: "One can't close one's eyes to the decision of the Tribunal in the matter of Foreman...it would be to shut one's eyes to reality to ignore the fact that in terms of credit the result of that case was not entirely beneficial to Ms Foreman...Ms Foreman was a link in the Society's case against Mr Symonds. Her credit was not enhanced by what happened before the Tribunal and that's a matter which, certainly, is in the chronological sequence of events." He further submitted: "In the situation where the Society took a view that a Complaint, in all likelihood, would not succeed, then (the Tribunal) would take the view that the Society acted properly rather than improperly." Perhaps the Society should have taken the view that the Complaint "in all likelihood would not succeed" before it filed the Complaint, it already having filed a Complaint against Ms Foreman some 2 months earlier. 6. Counsel for the Society also submitted that as a consequence of the solicitor filing his statutory declaration in late October, 1993 the Council reconsidered the matter and resolved to drop all complaints against the solicitor. The submission was that there was a substantial delay by the solicitor in filing his material in reply and when he finally put on some material the Society reconsidered its position and decided not to pursue the complaint further. But the plain fact is that the Society already knew about the solicitor's material before it filed its Complaint against him. The result may have been different if the material filed by the solicitor in October, 1993 shed some new light on the matter prompting a review by the Society and consequent withdrawal and dismissal. But the evidence is that the material that the Solicitor filed on oath was, to all intents and purposes the same material with the same facts, the same inferences and the same conclusions, that the solicitor had submitted, in considerable detail, to the Society well prior to the filing of the formal Complaint. 7. The Society, effectively, offered no evidence. Although there was argument put to the Tribunal that there was evidence of misconduct and that the Tribunal should look at that evidence on the question of costs, the plain fact is that the Society offered no evidence. We are therefore of the opinion that, for the above reasons, the solicitor is entitled to an order for costs pursuant to the provisions of the Act. The solicitor has asked for costs on an indemnity basis. The Legal Profession Reform Act 1993, contains certain transitional provisions in Division 2 of Part 9 of the Regulations. These are necessary because that Act came into operation 1 July, 1994 and, at that stage, there were various matters pending, or part heard, before the Legal Profession Disciplinary Tribunal and the subject of complaints made under the former Part 10 of the Act. Regulation 31 permits this Tribunal, as constituted under the former provisions, to continue to determine proceedings on a Complaint made under the former Part 10 when the Tribunal is part heard on 1 July 1994. In the matter of Maurice Gordon Kriss (No. 8 and 9 of 1993 unreported) the Tribunal, in a matter involving a barrister, on 12 September, 1994 decided that in order to fall within the transitional provisions the merits of the Complaint were either not, by 1 July, 1994, dealt with by the Tribunal or, alternatively, and in order to fall within Regulation 31, were part heard so that the merits were "being determined". The view taken by that constituted Tribunal was that the words "the subject of proceedings" used in Regulations 30 and 31 "mean proceedings in which the merits of the Complaint or Complaints are being determined and those words are not to be given a wider meaning so as to include Directions Hearings and other interlocutory proceedings. It is unnecessary to give those words any wider meaning to achieve the obvious purpose of the transitional provisions". With respect, that view is too narrow. The "merits" of this Complaint were disposed of on 12 November, 1993 when the Complaint was dismissed. The only issue now before the Tribunal is the question of costs and, in our view, that application forms an integral part of the Complaint "the subject of proceedings" before the former Tribunal. Any other restrictive interpretation of Regulation 31 would deprive, quite unjustly, and certainly not intended by the legislature, this Tribunal from considering any matter consequent upon the dismissal of the Complaint but so connected to the Complaint as to form part of the proceedings before the former Tribunal. That being the case, Regulation 31 enjoins the Tribunal to continue the proceedings and determine those proceedings "as if former Part 10 of the Act were still in force". Consequential amendments to the Legal Profession Reform Act (Schedule 6) entitle the Supreme Court, the Land and Environment Court, the District Court and the Local Court to order that costs be assessed under Division 6 of Part 11 or on an indemnity basis. Under that Act, there are now two types of costs orders that can be made by those Courts: costs to be assessed and indemnity costs. There is no specific provision in the Legal Profession Act that entitles this Tribunal to make an order for indemnity costs. There is a general provision, however, in section 163(6A), now section 171E(2), to order payments from the Statutory Interest Account to the legal practitioner "of such amount, by way of costs, as (the Tribunal) determines". It seems to us, therefore, that the Tribunal can make an order in a lump sum, can make an order on the basis of solicitor/client, party/party, assessment or on an indemnity basis. The power is at large and, provided it is exercised judicially, an appropriate order can be made. In the circumstances of this case in our view the solicitor is entitled to his costs on a solicitor/client basis as if those costs had been taxed in the Supreme Court. This is the appropriate basis, the bulk of the solicitor's costs being incurred prior to 1 July, 1994 and that solicitor/client basis is consistent with the statements of principle outlined in Latoudis v Casey. By way of completeness we should record that on 31 August, 1994 the solicitor, through his counsel, sought leave to adduce further evidence. It was stated that the solicitor wished to tender an unsworn statutory declaration that had been prepared but not filed together with a statutory declaration sworn by the solicitor 11 May 1994. In Wentworth v Wentworth, Supreme Court Equity No. 3748/89, unreported) Santow J on 27 June, 1994 stated that, as a general rule, he had no doubt that he had a discretion to allow additional evidence to be led but that he would only so do in the most exceptional circumstances and only if the public interest in the finality of litigation was overridden in the circumstances. His Honour said: "The fundamental principle...is whether the interests of justice are best served by allowing or rejecting the application" to reopen. His Honour drew a distinction between an appeal court granting leave to adduce further evidence and a trial Judge so doing. His Honour said it was desirable that a trial Judge exercise that discretion only in the most exceptional circumstances and it was a jurisdiction to be exercised cautiously. This Tribunal refused leave to adduce the further evidence as sought by counsel for the solicitor. We record our view that there must be evidence of sufficient cogency or force to meet the requirement of the interests of justice which is a prerequisite for a grant of leave to adduce further evidence. In our view there was no such evidence and leave was refused. Although there will be an order for costs in favour of the solicitor on a solicitor/client basis, in our view the solicitor should pay the costs of the Society thrown away by the solicitor's application for leave to adduce further evidence. Orders The Tribunal makes the following Orders: 1. The costs of the solicitor, excluding the costs of his application for leave to adduce further evidence heard 31 August, 1994, be paid from the Statutory Interest Account on a solicitor/client basis, such costs to be assessed as if taxed in the Supreme Court. 2. The solicitor pay the costs of the Law Society thrown away by the solicitor's application for leave to adduce further evidence heard 31 August, 1994, such costs to be assessed as if taxed in the Supreme Court on a solicitor/client basis. 3. If the parties cannot agree with the quantum of costs in Orders 1 and 2 above, either party to have liberty to apply to the Tribunal to determine the amount of those costs. 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.