Kazas-Rogaris v Council of the Law Society of New South Wales (No 2) [2015] NSWCATOD 7

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kazas-Rogaris v Council of the Law Society of New South Wales (No 2) [2015] NSWCATOD 7 Hearing dates: on the papers Decision date: 16 February 2015 Jurisdiction: Occupational Division Before: M Chesterman, Principal Member Decision: The Applicant's application for an order that the Respondent pay her costs of these proceedings is dismissed. Catchwords: Costs - review of reprimand of solicitor under section 540 of Legal Profession Act 2004 – reprimand set aside Legislation Cited: Administrative Decisions Tribunal Act 1997 Civil and Administrative Tribunal Act 2013 Legal Profession Act 2004Click here to enter text. Legal Profession Regulation 2005 Cases Cited: AT v Commissioner of Police, NSW [2010] NSWCA 131 Dykes & Wildie v Heatherway Pty Ltd (No 2) (RLD) [2007] NSWADTAP 46 Kazas-Rogaris v Council of the Law Society of New South Wales [2014] NSWCATOD 115 Category: Costs Parties: Anne Kazas-Rogaris Council of the Law Society of New South Wales Representation: Counsel: G Stanton (Applicant)

Solicitors: A Foord (Respondent) File Number(s): 132006 Publication restriction: Nil

Judgment

Introduction 1. This decision relates to an application by the Applicant, Anne Kazas-Rogaris, for an order that the Respondent, the Council of the Law Society of New South Wales ('the Law Society'), pay her costs of review proceedings in which she was successful. 2. On 21 March 2013, the Professional Conduct Committee of the Law Society decided on behalf of the Society that she should be reprimanded under section 540 of the Legal Profession Act 2004 ('the LP Act'). Relevant parts of this section are reproduced below. 3. On 1 May 2013, Ms Kazas-Rogaris applied to the Administrative Decisions Tribunal ('the ADT') for a review of this decision. 4. On 1 January 2014, the ADT was abolished and its functions were taken over by the Civil and Administrative Tribunal of New South Wales ('NCAT' or 'the Tribunal'). 5. On 7 July 2014, Ms Kazas-Rogaris's application was heard in the Occupational Division of the Tribunal. 6. On 15 October 2014, the Tribunal delivered its decision upholding this application (Kazas-Rogaris v Council of the Law Society of New South Wales [2014] NSWCATOD 115 – 'the principal decision'). In that decision, it gave directions for the filing of submissions relating to the costs of the proceedings. It indicated that this question would be decided 'on the papers', pursuant to section 76 of the ADT Act, unless it considered that a hearing was required. 7. On 6 November 2014, Ms Kazas-Rogaris filed an application for costs, with supporting submissions prepared by her counsel, Mr Stanton. A copy of a memorandum of fees due to him accompanied this application. 8. On 24 November 2014, submissions in response were filed by Ms Foord, the solicitor for the Law Society. 9. At the time when the ADT was abolished, these proceedings had been instituted but not yet heard. Accordingly, they are 'unheard proceedings' as defined in clause 6(1) of Schedule 1 of the Civil and Administrative Tribunal Act 2013. Clauses 7(1) and 7(3)(b) of this Schedule stipulate that such proceedings are to be heard by NCAT but determined as if that Act had not been enacted. 10. In addition, clause 13(1) stipulates that NCAT is to be constituted for such proceedings 'in a manner that is consistent with the constitution requirements that would have been applicable for the kind of proceedings in the existing tribunal concerned'. Under subsections (1) and (2) of section 24A of the Administrative Decisions Tribunal Act 1997 ('the ADT Act'), the ADT, when determining a costs application, could be constituted by a judicial member of the Division in which the application was brought. For the purposes of the present costs application, the constitution of NCAT is consistent with these provisions.