New South Wales Bar Association v Osei [2009] [2009] NSWADT 196

CITATION: New South Wales Bar Association v Osei [2009] [2009] NSWADT 196

DIVISION: Legal Services Division

APPLICANT Council of the New South Wales Bar Association PARTIES: RESPONDENT Kofi Ameyaw Osei

FILE NUMBER: 042010, 042039, 042040

HEARING DATES: 26 June 2009

SUBMISSIONS CLOSED: 26 June 2009

DATE OF DECISION: 28 July 2009

BEFORE: Blacket P SC - Judical Member; Wright R, SC - Judical Member; Hayes E - Non-Judicial Member

CATCHWORDS: Barrister – Disciplinary Action - Costs

Administrative Decisions Tribunal Act 1997 (NSW) Interpretation Act 1987 (NSW) LEGISLATION CITED : Legal Profession Act 1987 (NSW) Legal Profession Act 2004 (NSW) Legal Profession Amendment Act 1998 (NSW)

New South Wales Bar Association v Osei [2006] NSWADT 35 The Council of the New South Wales Bar Association v Osei [2008] NSWADT 7 CASES CITED: New South Wales Bar Association v Osei (No 2) [2008] NSWADT 324 Cripps v G&M Dawson Pty Ltd [2006] NSWCA 81 Building Professionals Board v Ball (No.2) (GD) [2009] NSWADTAP 8 NSW Bar Association v Tedeschi (No.3) [2003] NSWADT 174

APPLICANT P Skinner, Barrister REPRESENTATION: RESPONDENT T Williams, Solicitor

ORDERS: 1 Each of the applications for costs in proceedings 042010, 042039 and 042040 be dismissed 2 There be no order for costs on any of the applications.

REASONS FOR DECISION 1 The Tribunal has before it an application seeking costs under s.171E of the Legal Profession Act 1987 (NSW) (the '1987 Act'). The application relates to three proceedings with Tribunal file numbers 042010, 042139 and 042040 respectively. The application for costs is brought by the Respondent in each proceeding, Mr Kofi Ameyaw Osei (the 'Barrister'). 2 The history of these proceedings is somewhat convoluted and there have already been three decisions by the Tribunal: New South Wales Bar Association v Osei [2006] NSWADT 35, The Council of the New South Wales Bar Association v Osei [2008] NSWADT 7 and New South Wales Bar Association v Osei (No 2) [2008] NSWADT 324. Reference should be made to those decisions for a fuller statement of the facts and circumstances. Nonetheless, for present purposes, the history may be summarised as set out below. 3 The Barrister was admitted to the Bar in New South Wales in 1992 and held a New South Wales practicing certificate from May 1992 until June 2004. In addition, from 1992, the Barrister was also a director of Caprock International Pty Limited which, among other things, conducted an immigration consultancy business. Both the Barrister and his wife were, at the relevant times, registered migration agents under the Migration Act 1958 (Cth). 4 In the years 2000 and 2001, Caprock International Pty Limited was retained by a couple who, for the purposes of these reasons for decision, shall be referred to as Mr & Mrs B to assist Mr & Mrs B and their family with visa applications under the Migration Act. 5 In mid 2001, the Bs' application for protection visas was refused and an application for review by the Refugee Review Tribunal ('RRT') of that refusal to grant protection visas was lodged on the Bs' behalf. The application for review came on for hearing in September 2001 and the Barrister appeared in his capacity as a registered migration agent for and with Mr B at that hearing. 6 In February 2002, Mr B made a complaint to the Legal Services Commissioner about the conduct of the Barrister. On 12 April 2002, the Legal Services Commissioner made five complaints against the Barrister under s.134(2) of the Legal Profession Act 1987 and referred them to the Bar Association for investigation. 7 As part of the Bar Association's investigation, it sought information from the Barrister concerning Mr B's complaints. The Barrister responded in writing including by a letter dated 28 June 2002. 8 By the end of 2003, the Bar Association had completed its investigation. 9 On 12 March 2004, the Council of the Bar Association of New South Wales (the 'Bar Association') filed information 042010 in the Tribunal. In that information, the Bar Association alleged that the practitioner was guilty of professional misconduct on two grounds: a. The Barrister knowingly and deliberately misled Mr & Mrs B when he advised them in February 2001 that investment in an organisation, Lloyds International College, in which the Barrister held an interest, would assure Mr & Mrs B of success in their migration applications. b. The Barrister improperly induced Mr & Mrs B in February 2001 to invest $150,000.00 in 150,000 shares in Caprock International Pty Limited, a company in which the practitioner and his wife held a controlling interest. 10 It was not in dispute that this information and the Bar Association's affidavit in support were served on the Barrister. The Barrister filed a reply on 7 May 2004 and swore an affidavit dated 6 May 2004 in that proceeding. There were a number of direction hearings and on 7 July 2004, proceeding 042010 was set down for hearing on 14, 15 and 16 December 2004. 11 After that time, the Bar Association served a further affidavit on, and gave notice to, the Barrister's Solicitor of the intended evidence of witnesses whom it proposed to call to give oral evidence at the hearing. 12 In late November 2004, the parties agreed to the vacation of the hearing dates in December 2004 and the Tribunal fixed new hearing dates from 15-19 August 2005. The vacation and extended hearing were sought because of the proposed oral evidence and because a number of additional proceedings (in respect of which informations were to be filed soon after) were to be heard at that same time. 13 On 24 December 2004, Informations 042039 and 042040 were filed in the Tribunal by the Bar Association. 14 In Information 042039, the Bar Association alleged that the Barrister provided two misleading and false responses to the Bar Association in his letter dated 28 June 2002 and, by doing so, was guilty of professional misconduct in respect of each response. 15 In Information 042040, it was alleged that the Barrister was guilty of unsatisfactory professional conduct by failing to advance and protect the interests of his clients, Mr & Mrs B, when the Barrister appeared on their behalf in the RRT on 10 September 2001. 16 It appears that Informations 042039 and 042040, together with the relevant supporting affidavits, were delivered by hand to the Barrister's then solicitor. There was, however, no evidence before us that the solicitor had instructions to accept service of the two new informations. 17 Nonetheless, on 16 February 2005, there was a directions hearing before his Honour the President in proceedings 042039 and 042040. The solicitor for the Barrister appeared at that time and advised that he was having trouble obtaining instructions from his client. On that occasion, orders were made for the filing and service of replies and evidence in proceedings 042039 and 042040 and they were listed for hearing together with proceeding 042010 commencing on 15 August 2005. 18 On 8 April 2005, the solicitor who had formerly acted for the Barrister wrote to the Tribunal advising that he no longer acted for the Barrister in any of the three proceedings and requested that his name be removed from the Tribunal's contact details. 19 On 19 April 2005, the Barrister, who by this time was now a member of the Parliament of the Republic of Ghana and had been appointed Deputy Minister for Trade & Industry, wrote to the Tribunal. His letter was headed: Re: NSW Bar Association v Myself No: 042010 20 In that letter, he referred to the proceeding in the Tribunal as arising out of certain alleged incidents which allegedly occurred: not when I was practicing as a Barrister, but rather when I was acting in my role as a Registered Migration Agent pursuant to the Commonwealth Migration Act. 21 He noted that the complaints were investigated and determined by the Migration Agent Registration Authority ('MARA') and all complaints had been dismissed. He also in effect submitted that the determination by MARA should be the end of the matter. 22 Further, noting the proceeding by the Bar Association in the Tribunal, he drew attention to the fact that he did not hold a practicing certificate in New South Wales or anywhere else in Australia and that he did not propose to apply for one either then or at any time in the future. He offered to give undertakings that he would not, at that time or in the future, seek to practise as a barrister, solicitor or legal practitioner in New South Wales or anywhere else within Australia. In the final paragraph, the letter said: If this Tribunal, or the Bar Association, wishes to explore the finalisation of these proceedings along the lines of the undertakings outlined above, would they be so kind to communicate with the Ghana Consulate-General, Suite 1404, 370 Pitt Street, Sydney; Telephone 9283 2961. 23 From the notation under the Barrister's signature, it appears that this letter was copied to the Bar Association and the Legal Services Commissioner. 24 A directions hearing in all three proceedings took place before the Tribunal constituted by Mr Officer QC on 19 May 2005. On that occasion, the problems with service of the later two Informations (042039 and 042040) were addressed. Mr Officer in effect held that all the relevant documents had been served on the Barrister in accordance with Rule 29 and, to the extent to which that view may be wrong, he dispensed with compliance with that rule in relation to any of those documents on the basis that no reasonable hardship or prejudice had been occasioned to the Barrister by serving the documentation upon his legal representative at the time. This was said to be particularly so, as the legal representative had at no stage indicated that he did not have authority to accept service and had acted after service of those additional documents as if he did have authority to accept service of them. He had been present when it was decided that all of the proceedings should be heard together. Accordingly, Mr Officer QC listed all three proceedings for hearing to commence on 15 August 2005. 25 During July 2005, the Bar Association sent various notices concerning the evidence to be relied upon by the Bar Association at the hearing to the address given in the Barrister's letter of 19 April 2005 and to an address in Ghana set out on the Parliament of Ghana's website as the Barrister's postal address. On 1 August 2005, a further affidavit was sent to the same two addresses. 26 For three days between 15-18 August 2005, the Tribunal constituted by Mr Officer QC, Ms Robinson QC and Ms Mara heard the proceedings, in the absence of the Barrister. At the end of the hearing, the Tribunal reserved its decision and directed the Bar Association to put on written submissions by 5 September 2005. The time for filing the submissions was extended to 12 September 2005 and on that date, the Bar Association not only filed the submissions but also sent a copy to the Barrister at his address in Ghana disclosed on the Parliament of Ghana's website. 27 On 3 February 2006, the Tribunal handed down its decisions in each of the three proceedings and published its reasons – NSW Bar Association v Osei [2006] NSWADT 35. The Tribunal's orders were as follows: 1. Information 042010 is dismissed. 2. The Respondent is guilty of professional misconduct in providing false and misleading responses to the Bar Council by letter dated 28 June 2002 as particularised in Grounds 1 and 2 of Information 042039. 3. The Respondent is guilty of unsatisfactory professional conduct in failing to advance and protect the interests of his client when he appeared for them in the RRT on 10 September 2001 as particularised in Information 042040. 4. The matters 042039 and 042040 are listed on Thursday 2 Mach 2006 at 9:30am for directions in relation to penalty. 28 No order and no application in relation to costs were made in proceeding 042010, not surprisingly as the Barrister was not present nor was he aware of the decision. As to proceedings 042039 and 042040, they still had not been finally disposed of. 29 The Barrister became aware of the Tribunal's decision in March 2006 when his attention was drawn to a newsletter from the NSW Bar Association which contained a publication listing him as having been found by the Tribunal to have been guilty of professional misconduct and unsatisfactory professional conduct. He had heard nothing further relating to the proceedings since his letter of 19 April 2005 to the Tribunal. 30 On 8 March 2006, the Barrister contacted his present solicitor and gave him instructions to act on his behalf. 31 On 5 May 2006, at a directions hearing before Mr Officer QC in relation to Informations 042039 and 042040, the Tribunal directed, amongst other things: That any application by the Respondent to the Tribunal to reopen the hearing, and any affidavits in support of such an application, are to be filed and served on or before 16 June 2006. 32 Such an application was filed and, after a number of directions hearings and the reconstitution of the Tribunal by consent under s.79(1) of the Administrative Decisions Tribunal Act because of the unavailability of Mr Officer QC, the Barrister's application to reopen proceedings 042039 and 042040 was heard on 20 April 2007 before the Tribunal constituted by Ms W Robinson QC, Ms S Norton SC and Ms Mara. The Tribunal handed down its decision on this application on 14 January 2008 – Council of the New South Wales Bar Association v Osei [2008] NSWADT 7. 33 In that decision, the Tribunal held: 23. Ultimately, the Tribunal must resolve the appropriate course from the two competing views of the events which occurred relating to these proceedings between April 2005 and June 2006. On the one hand, Mr Osei, well aware that the first disciplinary proceeding based on allegations of the most serious nature alleging professional misconduct in the handling of the [Bs'] affairs were on foot before the Tribunal and actively being pursued by the Bar Council, endeavoured to forestall those proceedings. First, he made an offer not to seek to practise in the jurisdiction then, without an indication of concern for the outcome of this approach, he proceeded to sever the means of contact by which he could be appropriately informed of the progress of that proceeding and any consequences thereof, including the date for hearing. 24. Mr Osei acknowledges this in the affidavit filed in June 2006, in which he admits his failure to provide a correspondence address. The second and third Informations were served on his solicitor while he was still actively being represented by that solicitor in the first proceeding. Mr Osei thereafter absented himself from the hearing at which evidence was heard concerning all three matters then on foot. Seeking now to rely on the result of his own remiss conduct in this regard to reverse the detrimental consequences of the ongoing proceedings is a deeply unattractive and unmeritorious proposition. 25. On the other hand, his solicitor has promptly notified the Tribunal he had no instructions to act in relation to the two later informations. Given the inevitable inability and consequent failure by the Bar Council to provide advance notice of the supporting material upon which the adverse findings of fact were subsequently made (albeit that the difficulty in the means of communication had been created by Mr Osei), together with Mr Osei's sworn, unchallenged assertions that he remained unaware of those later proceedings, the Tribunal is left with an acute sense of unease and discomfort that Mr Osei may have been denied procedural fairness in the later matters. 26. Given the fundamental nature of those qualms concerning the failure of service in 042039 and 042040, the serious nature of the proceedings and the potential for adverse consequences to Mr Osei's ability to engage in future legal practice in this State and elsewhere, the Tribunal accepts that the prudent course is to consider acceding to the application now urged by both parties, irrespective of the concerns articulated to the contrary. 34 As a result, the Tribunal on 14 January 2008 ordered as follows: 1. The decision of the Tribunal made 3 February 2006 on informations 042039 and 042040 be vacated pending further hearing and that the hearing of those informations be reopened. 2. The Respondent to the principal proceeding have leave to file Replies in the proceedings within 28 days. 3. Costs reserved. 35 Thus, at least in relation to the application to reopen the hearings in proceedings 042039 and 042040, there was an outstanding question of costs which would be required to be determined at some future time. 36 Again, after a number of directions hearings and the filing of further evidence, proceedings 042039 and 042040 came on for hearing before the Tribunal as presently constituted. The hearing lasted for 3 days from 17-19 November 2008. The decision of the Tribunal was handed down on 5 December 2008 – NSW Bar Association v Osei (No.2) [2008] NSWADT 324. On that occasion, the Tribunal ordered: 1. Each of Informations 042039 and 042040 be dismissed. 2. The Respondent have leave to make any application in relation to the costs of these proceedings within 14 days of the date of these orders. 37 In compliance with the last of the orders referred to, the application for costs presently before the Tribunal was filed on 15 December 2008. 38 The Tribunal does have a statutory power to award costs under s.88 of the Administrative Decisions Tribunal Act 1997 (NSW) which provides: (1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section. (1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as: