Council of the Law Society of NSW v Healey (No 2) [2013] NSWADT 246

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Council of the Law Society of NSW v Healey (No 2) [2013] NSWADT 246 Hearing dates: On the papers Decision date: 01 November 2013 Jurisdiction: Legal Services Division Before: D Patten, Deputy President N Isenberg, Judicial Member E Hayes, Non Judicial Member Decision: Application for costs by Respondent refused No order as to costs Catchwords: Legal Practitioners - costs - Jurisdiction confined to s.566 Legal Profession Act - Special Circumstance not proved Legislation Cited: Administrative Decisions Tribunal Act 1997 Legal Profession Act 2004 Superannuation Guarantee (Administration) Act (Cth) Cases Cited: NSW Bar Association v Archer [2005] NSWADT 72 Benning v Sydney City Council [1958] 100 CLR 177 Colquhoun v Brooks [1887] 19 QBD 400 Roy Morgan Research Pty Ltd v Commissioner of Taxation [2011] 244 CLR 97 B & L Linings Pty Ltd v Chief Commissioner of State Revenue (no5) (RD) [2010] NSWADTAP 21 Category: Costs Parties: Council of the Law Society of NSW (Applicant) Katarina Healey (Respondent) Representation: Counsel C Webster SC (Applicant) T Lynch (Respondent) Council of the Law Society of NSW (Applicant) T A Williams (Respondent) File Number(s): 122021

reasons for decision 1In this matter on 2 August last the Tribunal for reasons given dismissed the Application and gave the parties leave to make submissions regarding costs. Pursuant to that leave an application for costs was made on behalf of the Respondent, the Applicant provided submissions in response and the Respondent replied. The matter of costs is now to be determined on the papers. 2The Orders sought by the Respondent are: "1. an order that the Respondent's costs as agreed or assessed be paid from the Public Purpose Fund on a solicitor own client basis (pursuant to s.566(3) of the Legal Profession Act 2004 (the "LPA", and 2. an order that to the extent, if any, the order in 1 does not comprehend the Respondent's costs of the investigation of the complaint made against her by the Society on 30 October 2008, the Applicant pay the Respondent's costs of that investigation on a solicitor own client basis." 3The Tribunal has no inherent power to award costs. Any such power must be derived expressly by or by clear implication from statute (NSW Bar Association v Archer [2005] NSWADT 72 and the cases therein quoted). There are two statutory provisions which potentially affect this case viz section 88 of the Administrative Decisions Tribunal Act 1997 (ADT Act) and section 566 of the Legal Profession Act 2004 (LP Act). Those sections are as follows: 88 Costs (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: (i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or (ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or (iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or (iv) causing an adjournment, or (v) attempting to deceive another party or the Tribunal, or (vi) vexatiously conducting the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) any other matter that the Tribunal considers relevant. (2) The Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis. (3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs. (4) In this section, costs includes: (a) costs of or incidental to proceedings in the Tribunal, and (b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application. 566 Costs (1) The Tribunal must make orders requiring an Australian legal practitioner whom it has found to have engaged in unsatisfactory professional conduct or professional misconduct to pay costs (including costs of the Commissioner, a Council and the complainant), unless the Tribunal is satisfied that exceptional circumstances exist. (2) The Tribunal may make orders requiring an Australian legal practitioner whom it has not found to have engaged in unsatisfactory professional conduct or professional misconduct to pay costs (including costs of the Commissioner, a Council and the complainant), if satisfied that: (a) the sole or principal reason why the proceedings were commenced in the Tribunal was a failure of the practitioner to co-operate with the Commissioner or a Council, or (b) the practitioner has contravened an order of the Tribunal made in the course of proceedings concerned, or (c) there is some other reason warranting the making of an order in the particular circumstances. (3) The Tribunal may make orders requiring payment of an Australian legal practitioner's costs from the Public Purpose Fund, but may do so only if satisfied that the practitioner did not engage in unsatisfactory professional conduct or professional misconduct and the Tribunal considers that special circumstances warrant the making of the orders. The Tribunal is to have regard to the length and complexity of the proceedings when making a determination under this subsection. (4) The Tribunal may make orders requiring an Australian legal practitioner in respect of whom proceedings are pending before the Tribunal to pay costs on a interlocutory or interim basis. (5) The Tribunal may make orders requiring a person to pay costs (including, as appropriate, the costs of the Commissioner, a Council, the complainant and the Australian legal practitioner against whom the complaint was made), if satisfied that: (a) the person, whether before or during the proceedings, failed to produce or delayed in producing any document required or requested to be produced, and (b) the failure or delay contributed to delay in commencing, conducting or concluding the proceedings in such a way as to warrant the making of the orders. (6) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under Part 3.2. (7) An order for costs may specify the terms on which costs must be paid. Note. Section 82 of the Administrative Decisions Tribunal Act 1997 makes provision for the recovery of costs. 4At the outset it is necessary to decide whether the Tribunal has power to make Order 2 sought above. On behalf of the Respondent it is submitted in effect as we understand it that s.88 of the ADT Act provides a source for the making of a costs order independent of s.566 of the LP Act. This contention is resisted by the Applicant. 5To some extent we think that the Respondent's contention is correct as it is consistent with what this Tribunal held in NSW Bar Association v Archer [2005] NSWADT 72 in that in that case the Tribunal made an order for costs in favour of a person who was not a party to the proceedings. 6Section 88 of the ADT Act provides that usually each party to proceedings pays its own costs. "Subject to the rules of the Tribunal and any other Act or law" the Tribunal may award costs in limited circumstances: s.88(1A(a)-(e). 7As a matter of interpretation in our opinion different considerations apply to the case of a successful legal practitioner's costs. In our opinion in that situation s.566(3) in effect "covers the field", in a way anticipated by s.88 of the ADT Act. It may be the case that the maxim expressio unius exclusio alterius applies although we are mindful of the often stated need for caution in applying that maxim eg. Benning v Sydney City Council [1958] 100 CLR 177 at 196 per Fullagar J. Even so it seems unlikely that the possibilities referred to by His Honour in quoting from the judgment of Willis J in Colquhoun v Brooks [1887] 19 QBD 400 "the failure to make the "expressio" complete very often arises from accident, very often from the fact that it never struck the draftsman that the thing supposed to be excluded need specific mention of any kind" have relevance to this case particularly as s.566 burdens an order not upon the Applicant but upon the Public Purpose Fund. 8In the result we hold that the Respondent's application for costs must be considered as based solely upon s.566. The Respondent qualifies for an order under s.566(3) in that the Tribunal was satisfied that she did not engage in unsatisfactory professional conduct or professional misconduct. 9The question remains whether special circumstances warrant the making of a costs order. In terms of s.566(3) the proceedings were not particularly complex and the hearing was completed within a day although there had previously been Directions hearings. One factor which may potentially have constituted a "special circumstance" was our finding that the proceedings were founded upon a misapprehension of the law as it was explained in Roy Morgan Research Pty Ltd v Commissioner of Taxation [2011] 244CLR97. However the Respondent's position regarding this circumstance is undermined by failure to raise the point until a few days before the hearing. In the meantime she had accepted over a period of years while the applicant was investigating the matter that she was in breach, however inadvertent, of obligations to pay superannuation for her employees. This acceptance was of course consistent with previous decisions of the Tribunal where the obligation was assumed. Accordingly we do not accept that the point upon which the Respondent succeeded before us amounted to a special circumstance. We would point out that on the evidence the Respondent may well have committed multiple breaches of the Superannuation Guarantee (Administration) Act (eg s.33) even though such breaches were not alleged against her. 10Nor in our view do the matters referred to in paragraph 22 of our previous reasons amount to special circumstances in the sense of something out of the ordinary. 11As no special circumstances have been established the application for costs under s.566 of the LP Act must fail.