Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the New South Wales Bar Association v Berwick (No. 3) [2018] NSWCATOD 95 Hearing dates: Heard on the papers Date of orders: 18 June 2018 Decision date: 18 June 2018 Jurisdiction: Occupational Division Before: L P Robberds QC, Senior Member Dr J G Renwick SC, Senior Member Decision: (1) Pursuant to s 50(1)(c) of the Civil and Administrative Tribunal Act 2013 the Tribunal dispenses with a hearing of the costs applications of the applicant Fahmid Rahman and the respondent Dr John Patrick Berwick. (2) Order that the respondent pay the applicant the applicant's costs of the issues: (a) whether the applicant suffered a loss of $25,349.16 because of the respondent's unsatisfactory professional conduct; and (b) whether the applicant was entitled to an order that the respondent pay him compensation in the amount of $25,000. (3) Subject to order (4), order that the applicant pay the respondent, the respondent's costs of the applicant's application for repayment to him of $33,000 and for compensation orders but excluding the issues referred to in order (2). (4) Order (3) does not include the costs incurred by the respondent in making the three settlement offers referred to in par 18 of these reasons. (5) Order that the applicant pay the respondent the respondent's costs of the issue whether the compensation which could be awarded was capped at $25,000 for all matters the subject of the complaint. (6) Order that the applicant pay the respondent, the respondent's costs of the issue whether the applicant was entitled to an order that the respondent pay the applicant's costs of the proceedings brought by the Council of the New South Wales Bar Association filed on 2 April 2015, file 2015/0038 3754 (1520067). Catchwords: Costs – special circumstances – relative strength of cases of the parties – compensation under Legal Profession Act 2004 – several claims in one complaint – cap on amount awarded Legislation Cited: Administrative Decisions Tribunal Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Interpretation Act 1987 (NSW) Legal Profession Act 2004 (NSW) Cases Cited: ACT Builders Pty Ltd v Haridemos (No 2) [2016] NSWCATAP 118 Council of the New South Wales Bar Association v Berwick [2016] NSWCATOD 81 Council of the New South Wales Bar Association v Berwick (No.2) [2017] NSWCATOD 133 Cripps v GBM Dawson Pty Ltd [2006] NSWCA 81 Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 Category: Costs Parties: Parties to the costs applications: Fahmid Rahman (Applicant) Dr John Patrick Berwick (Respondent) Representation: Counsel: Justin Doyle (Applicant Fahmid Rahman) A C Harding (Respondent) Solicitors: Gilchrist Connell (respondent) File Number(s): 2015/00383754 (1520067), 2016/00378818(1620258) Publication restriction: Nil reasons for decision 1. These reasons for decision deal with applications made by Fahmid Rahman (Mr Rahman) and John Patrick Berwick (Dr Berwick) for costs orders. The following short history explains how it transpired that those applications for costs orders were made. 2. On 2 April 2015 the Council of the New South Wales Bar Association (the Council) filed in the Tribunal an application (the application) for disciplinary findings and orders. 3. Three of the orders sought in the application were that Dr Berwick, pursuant to s 573 of the Legal Profession Act 2004 NSW (the Act), repay a sum of $33,000 to Mr Rahman and pay 2 amounts of compensation to Mr Rahman. 4. On 6 May 2016 there was filed in the Tribunal an instrument of consent made pursuant to s 564 of the Act, signed by the solicitor for each of the Council and Dr Berwick and signed by the Legal Services Commissioner. 5. On 23 May 2016 Mr Rahman sought an adjournment of the proceedings. The Tribunal explained to him that he had no right to seek an adjournment and that he would have an opportunity later on to appear before the Tribunal in relation to his claim for compensation. 6. The background and detail of the proceedings commenced by the application may be found in Council of the New South Wales Bar Association v Berwick [2016] NSWCATOD 81. 7. Dr Berwick was engaged to appear for Mr Rahman in proceedings in the Federal Magistrates Court of Australia and the above 3 orders sought in the application arose out of those proceedings. On 23 June 2016 the Tribunal made findings and orders as sought in the instrument of consent (see par 47 of the reasons for decision published on 23 June 2016 in Council of the New South Wales Bar Association v Berwick [2016] NSWCATOD 81). 8. In the Tribunal Mr Rahman made an application for compensation against Mr Dr Berwick by filing, on 8 November 2016, a general application form, file number 1620258, seeking 15 orders pursuant to s 571 of the Act. On 6 September 2017 the Tribunal made an order that Dr Berwick pay compensation to Mr Rahman in the amount of $25,000. It also made orders dismissing Mr Rahman's applications: (a) seeking leave to make a compensation request pursuant to s 570(4) of the Act and (b) to rely upon the application file number 1620258, (Council of the New South Wales Bar Association v Berwick (No.2) [2017] NSWCATOD 133). 9. At the same time the Tribunal gave directions aimed at determining any application for an order for costs which either party might seek to make. 10. Each of the parties subsequently indicated that they sought an order for costs and also stated that they agreed to their application being dealt with on the papers without a further hearing. Dr Berwick's written submissions filed 9 October 2017 1. Section 60 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) deals with the question of costs of proceedings in the Tribunal. The first 3 subsections provide as follows: 1. Each party to proceedings in the Tribunal is to pay the party's own costs. 2. The Tribunal may award costs in proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. 3. In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: …. 1. There is then set out seven subparagraphs and Dr Berwick relied in particular on the following three of them: 1. whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings (subpar (3) (b)), 2. 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 (subpar (3) (c)), and 3. any other matter that the Tribunal considers relevant (subpar (3) (g)). 1. It was submitted that Mr Rahman was responsible for prolonging unreasonably the time taken to complete the proceedings by engaging in the following conduct: first, Mr Rahman pursued a claim for reimbursement to him of all moneys charged by Dr Berwick to Mr Rahman for legal services, in the amount of $33,000 without making any attempt to link the findings of unsatisfactory professional conduct or professional misconduct made by the Tribunal on 23 June 2016 neither with the conduct described in Mr Rahman's written submissions nor with what was relied upon by him as the compensable loss [2017] NSWCATOD 133 at [30]. 2. It was submitted that this consideration was also relevant to s 60(3)(c), as Mr Rahman's claim for reimbursement of $33,000, in the way it was presented, had no tenable basis in fact or law. 3. Secondly it was submitted, Mr Rahman pursued a claim for compensation for amounts exceeding $25,000 in circumstances where Part 4.9 of the Act very clearly imposed a cap of $25,000 which applied to the whole of an applicant's complaint. It was submitted that this consideration was also relevant to s 60(3)(c), as Mr Rahman's claim for compensation over $25,000 had no tenable basis in law. 4. Thirdly it was submitted that Mr Rahman's application to make a compensation request pursuant to s 570(4) of the Act, and his application to rely upon the general application filed on 8 November 2015, were dismissed by the Tribunal; Mr Rahman's claim for compensation was confined to the application for a compensation order set out in the application for disciplinary findings and orders filed by the Council on 2 April 2015. 5. Finally, it was submitted Mr Rahman unreasonably rejected offers made to him which, if accepted would have avoided altogether the need for a hearing and determination of his claim. In each of those offers, Dr Berwick offered to pay Mr Rahman an amount exceeding $25,000 to settle the proceedings. 6. The written submissions then referred to the following three offers to settle the proceedings: 1. on 12 October 2015 Dr Berwick offered to settle the proceedings on terms that he pay compensation to Mr Rahman in the sum of $30,000, the application be dismissed with no order as to costs and Mr Rahman provide a written release in Dr Berwick's favour against the pursuit of any other claims. The letter stated that pursuant to ss 571(5) and 573(6) of the Act, a compensation order requiring payment of an amount exceeding $25,000 was not to be made unless both of the clients consented to the order; 2. on 24 November 2016, Dr Berwick made a further offer to settle the proceedings on terms that he pay Mr Rahman compensation in the sum of $30,00 all inclusive, the application be dismissed with no order as to costs and Mr Rahman provide a written release in Dr Berwick's favour against the pursuit of any other claim. The letter again referred to ss 571(5) and 573(6) of the Act and that Dr Berwick did not consent to the making of a compensation order in excess of $25,000; and 3. on 24 February 2017, Dr Berwick made a further offer to settle the proceedings, this time on terms that Dr Berwick pay Mr Rahman the sum of $54,000 plus costs as agreed or assessed, or $70,000 inclusive of costs. Payment of the settlement sum was to be made within 28 days of the exchange of an executed Deed of Settlement and Release, the application be dismissed with no order as to costs and Mr Rahman provide a written release in Dr Berwick's favour against the pursuit of any other claim. The letter referred to the $25,000 compensation cap pursuant to ss 571(5) and 573(6) of the Act. 1. It was submitted that Mr Rahman's failure to accept any of those offers was unreasonable especially given that each letter correctly identified that under the Act Mr Rahman's claim for compensation was capped at $25,000. 2. It was submitted that these written submissions showed that special circumstances had been made out and that a costs order in favour of Dr Berwick was warranted. Mr Rahman's written submissions dated 20 December 2017 1. Mr Rahman seeks his costs of the proceedings brought by the Council including the costs of his application for compensation. He opposes the application for costs made by Dr Berwick. 2. Mr Rahman's written submissions include the following: 1. There was nothing in the wording of s 60 of the Act which restricts the Tribunal from ordering Dr Berwick to pay all of Mr Rahman's costs incurred in relation to the proceedings. 2. Mr Rahman was central to the prosecution by the Council of all aspects of the proceedings with which his legal rights were entwined. 3. He was made a party to the proceedings and also deposed the crucial evidence relied upon by the Council in its claim. 4. The Council's claim sought relief including compensation to be paid to Mr Rahman. 5. Mr Rahman's entitlement to compensation was entirely contingent upon the success of the Council's claims, thereby strengthening Mr Rahman's direct interest in the whole of the case. 6. In the compensation part of the proceedings, or in future proceedings brought in a court under the law of tort or contract, the same evidence Mr Rahman gave for the Council in relation to which he was liable to be cross examined, would be central and it was sensible for Mr Rahman to obtain legal advice in that regard. 7. Mr Rahman also had his own interest in seeing that his serious complaints against Dr Berwick were made out 8. For those reasons Mr Rahman was intimately involved in the whole of the litigation and it was fair and reasonable for him to obtain legal advice in relation to matters including the compensation claim "being brought for him by the Bar Association", the evidence he had to give, the response of Dr Berwick and other matters which Mr Rahman identified which he submitted were matters on which it was reasonable for him to obtain legal advice. 9. The words in s 60(3)(d) "the nature ……of the proceedings" were relevant to the exercise of the Tribunal's discretion on costs. 10. Dr Berwick denied and contested the allegations and complaints brought against him up until 6 May 2016 and there was a public interest that the complaints be heard. 11. As a result of Dr Berwick's culpability and his resisting the complaints it was inevitable that Mr Rahman as an innocent member of the public be extensively caught up in the proceedings and that he would reasonably require legal advice in relation to that involvement for the reasons set out above. In short, the admitted misconduct and unsatisfactory conduct of Dr Berwick, and his delay in admitting that conduct, had the effect of dragging the victim of that conduct into the proceedings. 12. These were special circumstances which took the proceedings out of the usual case and that an order in Mr Rahman's favour ought to be made. 13. So far as the costs of the compensation claim are concerned, Mr Rahman had reasonably incurred significant costs and the culpability of Dr Berwick was relevant to the assessment of costs. 14. Even after admitting unsatisfactory professional conduct and misconduct in relation to the services provided to Mr Rahman, Dr Berwick nonetheless denied Mr Rahman's entitlement to compensation on grounds which should not have been asserted. 15. Dr Berwick's attempt to knock out the claim on the basis that Mr Rahman's claim was made after disposal of the complaint when he was quite aware that the claim had been made at the outset of the proceedings did not reflect well on his case. 16. It could not reasonably have been in dispute that Mr Rahman was forced to incur significant legal costs to obtain the award of compensation and that the attack on Mr Rahman's sworn evidence was not reasonable. 17. It was reasonable to pursue all available claims to guard against the possibility of any claims failing given that Dr Berwick denied all of the entitlement to compensation. Dr Berwick's refusal to agree to an increase in the cap forces Mr Rahman to bring separate proceedings if he wants due compensation. The fact that the award was capped did not take away from the findings in relation to the compensation payable. Reply to Dr Berwick's claim for costs 1. Mr Rahman's submissions dated 20 December 2017 included the submissions in pars 24 – 33 below in reply to Dr Berwick's claim for costs. 2. Dr Berwick could not be said to have been successful in the litigation. He denied any liability for costs but was ordered to pay the maximum compensation available. 3. Mr Rahman stated that Dr Berwick made four attacks (identified as topics (i) – (iv) below) on the reasonableness of Mr Rahman's case that could be answered as follows: (i) Link between the unsatisfactory conduct and the $33,000 fees. 1. Although the Tribunal had found that there was no link between the $33,000 and the professional misconduct, it was submitted that there was an arguable case that the link did exist. It was said that if the $33,000 had not been demanded and received upfront, Mr Rahman would have been in a position to refuse to pay for work which was found ultimately not to have been performed to a professional and sufficient standard. 2. Although the Tribunal found against Mr Rahman on this point, the claim could hardly be said to have been unreasonably made. (ii) Part 4.9 of the Act clearly imposes a cap. 1. Dr Berwick denied all of the claim and the issue of the cap only arose when that defence failed. While the Tribunal found against Mr Rahman's submission that each of the elements of his claim constituted a separate complaint, it did so after significant legal analysis and reference to the Interpretation Act 1987 (NSW) to resolve the issue. While the Tribunal found against Mr Rahman's submission that each of the elements of his claim constituted a separate complaint, it only did so with the benefit of argument. (iii) Mr Rahman's compensation request was dismissed. 1. Mr Rahman only filed his own claim due to the absence of clear procedural direction as to the appropriate course at the Registry. The claim by Mr Rahman raised the same issues and it did not lead to substantial additional work for Dr Berwick's lawyers. The claim was only dismissed on the basis that the claim was superfluous because: The barrister has not disputed that Mr Rahman has made an appropriate request for a compensation order and this case has proceeded on the basis that such a request was made by Mr Rahman. 1. Mr Rahman could not have anticipated that concession when he filed the application. (iv) Mr Rahman is said to have unreasonably rejected offers of 12 October 2015, 24 November 2016 and 24 February 2017 made to him. 1. Dr Berwick should not be entitled to rely upon any of the three offers because each required a release of all claims by Mr Rahman against him, whereas Part 4.9 of the Act expressly preserves Mr Rahman's rights to bring other claims where the $25,000 cap would not apply. Each offer was qualified by a condition that: "your client provides a written release in our client's favour against the pursuit of any other claim." 2. The submissions then set out the terms of s 575 of the Act which were as follows: The recovery of compensation awarded under this Part shall not affect any other remedy available to an aggrieved person, but any compensation so awarded is to be taken into account in any other proceedings by or on behalf of the aggrieved person in respect of the same loss. 1. The Tribunal had not attempted to adjudicate whether Mr Rahman might succeed under the general law of tort or contract, nor any right under the Act or its successor legislation. Thus it could not be said that the offers which insisted on a complete release were not reasonably rejected to preserve such claims. Dr Berwick's reply submissions dated 2 February 2018 1. These reply submissions included the following: 1. Mr Rahman's claim for costs of the application filed by the Council on 2 April 2015 founded upon the incorrect premise that he was "made a party to [those] proceedings." 2. That premise was incorrect and Mr Rahman was never a party to the proceedings filed on 2 April 2015. As identified in that application, the instrument of consent filed 6 May 2016, the reasons of the Tribunal delivered on 23 June 2016 and the reasons delivered on 21 March 2017, the parties to those proceedings were the Council as applicant and Dr Berwick as respondent. 3. Whilst Mr Rahman was a proceeding party to the general application filed on 8 November 2016, that application for compensation was dismissed. The appropriate order for costs in those proceedings was one in favour of Dr Berwick. 4. Accordingly, Mr Rahman did not have standing to seek a costs order in the proceedings commenced by the Council on 2 April 2015. The jurisdiction to award costs under s 60 of the NCAT Act was confined to costs against a party to proceedings. Although that was not stated in terms in s 60(2) of the NCAT Act, it was a construction that was supported by the references to "party" and "parties" in ss 60(1) and 60(3)(a), (b), (c) and (f). 5. Even if this construction be wrong, and the power did exist under s 60 to award costs in favour of a non-party, no order for costs should be made in favour of Mr Rahman as the matters referred to by him in support of the application did not constitute special circumstances. No real effort had been made to engage with the requirements of the section or to explain, by reference to the factors in s 60(3) of the NCAT Act, why special circumstances exist. Instead the central ground relied upon was the fact that Mr Rahman gave evidence in the proceedings on behalf of the Council. Merely because a person agreed to participate in proceedings as a witness did not give rise to an entitlement to costs. Still less did it constitute special circumstances as required by the section. Therefore no further costs order should be made in the proceedings commenced by the Council on 2 April 2015. (i) Link between the unsatisfactory conduct and the $33,000 fees 1. The assertion that it was arguable that there was a link between the $33,000 and the professional misconduct was contradicted by the conclusions of the Tribunal [2017] NSWCATOD133 at [30] that Mr Rahman made no attempt to link the findings of unsatisfactory professional conduct or professional misconduct with the claimed loss, and the Tribunal's finding at [31] that there was no basis for a conclusion that any such link existed. (ii) Part 4.9 of the Act clearly imposes a cap 1. Merely because the Tribunal gave reasons for its conclusion did not mean the point was properly arguable, and Mr Rahman during the hearing did not raise any argument or contention that might arguably have supported a conclusion as to the proper construction of the Act that was different to the one that was ultimately reached by the Tribunal. In any event Dr Berwick three times offered to pay more than the statutory cap to Mr Rahman to settle the proceedings, and each time the offer was rejected. (iii) Mr Rahman's compensation request was dismissed 1. Mr Rahman's assertion that proceedings 2016/00378818 "raised the same issues" as the claim for compensation in proceedings 2015/0038754 is correct, and is precisely why Dr Berwick, in defending those proceedings, was required to raise all of the legal and factual arguments that he did in defence to the claim for compensation. He incurred legal costs in doing so. To the extent there is overlap in those costs, that is a matter for assessment, and is not a matter that bears upon the analysis of whether special circumstances justifying an order for costs have been made out. 1. Mr Rahman's attempt to blame the Registry for an "absence of clear procedural direction" was unsupported by any evidence and should be rejected. (iv) Unreasonable rejection of offers 1. Mr Rahman asserted that he did not act unreasonably in rejecting each of the offers because each contained a requirement for entry into a release. It was said that Mr Rahman's rights to bring other action are preserved by s 575 of the Act. It was submitted on behalf of Dr Berwick that whilst theoretically this may be the case, it was notable that Mr Rahman had neither brought any proceedings against Dr Berwick to date, nor foreshadowed that he intends to do so in the future. Although it was open to him to have done so, Mr Rahman had not led any evidence or even asserted in submissions, that he held such an intention. In the absence of any such evidence, or assertion, the Tribunal ought not accept Mr Rahman's contention that his rejection of each offer of settlement was not unreasonable. Mr Rahman should be ordered to pay Dr Berwick's costs of the proceedings. Mr Rahman's reply submissions dated 15 March 2018 1. Mr Rahman maintained that he was a party to the proceedings commenced by the Council on 2 April 2015. He relied upon the orders set out in pars 104 and 105 of the Tribunal's reasons for decision given in the proceedings commenced by the Council on 2 April 2015. Those paragraphs were then quoted. They were in the following terms: 104. In the matter of the Council of the New South Wales Bar Association v John Patrick Berwick file number 2015/00383754 (1520067); the Tribunal makes the following order: (1) Order that the respondent John Patrick Berwick pay compensation to the applicant Fahmid Rahman in the amount of $25,000. 105. In the matter of Fahmid Rahman v John Patrick Berwick file number 2016/00378818 (1620258); the Tribunal makes the following orders: (1) The application of Fahmid Rahman seeking leave to make a compensation request pursuant to s570 (4) of the Legal Profession Act 2004 is dismissed. (2) The application by Fahmid Rahman to rely upon the application number 1620258 filed on 8 November 2015 is dismissed. 1. The submission continued: "that is, Mr Rahman was a party, namely the Applicant, in proceedings 2015/0038754 (1520067) and accordingly the Tribunal has power to make a costs order in those proceedings as sought." 2. These reply submissions of Mr Rahman were completed as follows: 1. Accordingly pars three and four of the submissions of Dr Berwick were misconceived. 2. The special circumstances relied upon for the making of the costs order in relation to the disciplinary part of the proceedings were quite clear from Mr Rahman's submissions. They were stated in Mr Rahman's principal cost submissions to be: "in short, the admitted misconduct and unsatisfactory conduct of Dr Berwick, and his delay in admitting that conduct, had the effect of dragging the victim of that conduct into the proceedings." 3. As a member of the legal profession, Dr Berwick should have made an early admission of all wrongdoing rather than subjecting Mr Rahman to the delays and stresses of the proceedings which compounded the culpability which was the subject of the Council's complaints. The failure to do so constituted special circumstances. 4. No order for costs was sought in the dismissed proceedings, but the work done in commencing those proceedings was reasonably incurred in the circumstances to progress the claims in the proceedings commenced by the Council. It was only during the course of argument that Dr Berwick consented to the course which made further conduct of the proceedings commenced by the general application, unnecessary. 5. Where at par 14 of his submissions on costs, Dr Berwick asserted that it was notable that Mr Rahman had neither brought any proceedings against Dr Berwick to date, nor foreshadowed that he intended to do so in the future, they purport to give evidence through submissions about what has occurred since the judgment the subject of the costs dispute. In answer to that asserted factual case, Mr Rahman stated in those written submissions that to pursue his costs claims against Dr Berwick he commenced proceedings against Dr Berwick in the Supreme Court by way of an appeal against the judgment in these proceedings. In those proceedings a referral was made for pro bono assistance. Upon receiving advice consequent upon that referral, he discontinued the Supreme Court proceedings and advised Dr Berwick that he intended to pursue the balance of his loss in fresh proceedings in the District Court. 6. To the extent necessary, Mr Rahman sought leave to adduce the relevant email exchange in evidence on costs to reply to the factual representations made by Dr Berwick in his submissions without the relevant evidence, together with the Supreme Court's pro bono referral letter. 7. The other matters raised in Dr Berwick's submissions were sufficiently traversed in Mr Rahman's submissions in chief. 1. As the submissions seek to rely upon an email exchange between the parties, we do not see the need for leave to be granted to adduce the emails. We are of the view that we can accept that the email exchange advised Dr Berwick that Mr Rahman intended to pursue the balance of his alleged loss in fresh proceedings in the District Court. Mr Rahman claimed orders for the three amounts set out in pars 41 – 43 below $33,000 for fees paid to Dr Berwick in advance of the hearing 1. The Tribunal made a finding that his claim for $33,000 was not a loss suffered by Mr Rahman – see [2017] NSWCATOD 133 at [32] – [34]. $35,239.47 for the following fees paid to Mr Rahman's lawyers 1. The Tribunal found in favour of Mr Rahman in the sum of $25,349.16 but capped that sum to $25,000. Each of the three amounts of $6,912.50, $13,200 and $5,236.66 (a total of $25,349.16) were losses suffered by Mr Rahman because of the unsatisfactory professional conduct of Dr Berwick ([2017] NSWCATOD 133 at [100]). Mr Rahman claimed two further amounts - $8,890.31 which was said to have been paid to Mr Rogers and $1,000 said to have been paid to Mr Young. The Tribunal was not satisfied that those two amounts were losses suffered by Mr Rahman because of the unsatisfactory professional conduct of Dr Berwick. The amount of the liability which Mr Rahman has incurred to pay the Commonwealth of Australia's costs of the strike out application 1. The Tribunal found that this liability was a loss suffered by Mr Rahman because of the unsatisfactory professional conduct of Dr Berwick the subject of the complaint [2017] NSWCATOD 133 at [49] – [51]. 2. However as there was a cap of $25,000 for loss suffered because of conduct that was the subject of the complaint, the total of any orders that might be made in respect of the three claims, was $25,000. Consideration of costs claims made by Mr Rahman and Dr Berwick 1. Before we embark upon a consideration of these claims it is appropriate that we consider the meaning of "special circumstances" in s 60. In Cripps v GBM Dawson Pty Ltd [2006] NSWCA 81 Santow JA with whom Mason P and Brownie AJA agreed, considered the meaning of "special circumstances" in s 88(1) of the Administrative Decisions Tribunal Act 1997. His Honour stated at [60]: For this purpose, it suffices that the circumstances are out of the ordinary. They do not have to be extraordinary or exceptional. 1. An Appeal Panel of the Tribunal has referred to that statement with approval when dealing with s 60 (Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]). We propose to adopt this meaning of the phrase. Mr Rahman's claim for his costs of the proceedings brought by the Council 1. The Tribunal is aware that part of the evidence relied upon by the Council prior to the filing of the instrument of consent was an affidavit sworn by Mr Rahman on 5 May 2015. The Tribunal is not aware whether Mr Rahman incurred any legal costs in relation to that affidavit. If he did, the Tribunal is not aware of the amount of those costs nor what was the legal work carried out. 2. The proceedings brought by the Council were proceedings between the Council and Dr Berwick. Mr Rahman was not a party to those proceedings. For that reason we are of the view that this claim of Mr Rahman for his costs of the proceedings brought by the Council, must be dismissed. In our view the power to award costs under s 60 is a power to award costs to a party to proceedings. In our view this is the conclusion to be drawn from the use of "party" and "parties" in s 60(1) and s 60(3)(a), (b), (c) and (f) and from the fact that there is no mention in s 60 to costs being awarded to a person who is not a party. 3. Furthermore, even if Mr Rahman is entitled to rely on s 60 and make a claim for his costs of the proceedings brought by the Council, we do not know the extent of those costs incurred by Mr Rahman. There is no evidence of the extent of the legal work carried out nor how that work relates to one or more of the 3 claims nor of the detail of the legal costs claimed to have been incurred. In our view the relative strength of Mr Rahman's claim is weak when compared to the relative strength of Dr Berwick's case on this issue, which is relatively strong. 4. In coming to these conclusions we have taken into account Mr Rahman's submissions which are summarised in par 22 (1) -- (12) above and are of the view that our reasons for those conclusions show that the submissions of Mr Rahman should be rejected. The claim made by Mr Rahman for his costs of his compensation claims 1. It was held by an Appeal Panel in ACT Builders Pty Ltd v Haridemos (No 2) [2016] NSWCATAP 118 at [41] that the essential matter which an Appeal Panel is required to determine on a costs question is whether or not "in the particular case, there are special circumstances warranting an award for costs". In this regard it was stated that the failure of an appeal, even by a party who has originally been unsuccessful, is an unsatisfactory way to commence the examination required by s 60(3) of the Act. This is because with the exception of s 60(3)(g) the factors to be considered relate to the appeal proceedings and not the success or otherwise of the appellant in the proceedings at first instance. Secondly, the mere fact of an appeal, even if unsuccessful, is not of itself sufficient to establish there are special circumstances to enliven the power to award costs on appeal pursuant to s 60(2) of the Act. 2. The Appeal Panel continued and at [46] said in relation to s 60(3)(c): "the question to be determined is the relative strength of the parties' cases, an extreme case being where an appeal has 'no tenable basis in fact or law'. In the present case, the relative strength of the parties' positions needs to be considered by reference to the claims made and the Appeal Panel's decision." 3. In our view this reasoning, with appropriate amendment for first instance proceedings, is not restricted to appeals but also applies to claims for an award of costs in first instance proceedings before the Tribunal. Mr Rahman's claim for $33,000 1. Mr Rahman failed on this claim. The relevant question was what was the loss suffered by Mr Rahman because Dr Berwick accepted the first and second payments totalling the $33,000, which was trust money, which together comprised payment in advance of the hearing of the whole amount of Dr Berwick's fee before completing the work for which the trust monies were paid and before issuing a bill. 2. We concluded that there was no such loss suffered by Mr Rahman. 3. We accept that there was no tenable basis in fact or law for the $33,000 claim. 4. In our view the strength of Mr Rahman's case for the $33,000 was relatively weak when compared with the relative strength of Dr Berwick's case on this claim. 5. In our view the submissions recorded in par 22 above do not show any special circumstances warranting an award of costs in favour of Mr Rahman in relation to the $33,000 claim. Mr Rahman's claim for $35,239.17 1. In his written submissions dated 21 March 2017 Dr Berwick dealt with the three claims. In these submissions the description given to the second claim was "sums allegedly paid or payable by the complainant to legal practitioners ($26,940.50)". In respect of that claim Dr Berwick submitted that the uncorroborated assertion of the complainant was not a safe or proper basis on which to conclude that payments had been made and that the Tribunal should accordingly give no weight to that evidence. It is clear from this and the balance of the submissions in that document, that Dr Berwick disputed that the evidence proved the case made by Mr Rahman on the second claim. 2. However tax invoices to support the quantum of the claims were produced by Mr Rahman and the Tribunal found that each of the amounts $6,912.50, $13,200 and $5,236.65 were losses suffered by Mr Rahman because of the unsatisfactory professional conduct of Dr Berwick. 3. The relative strength of Mr Rahman's case concerning the second claim was relatively strong when compared with the relative weakness of Dr Berwick's claim on this issue. 4. The question whether the compensation that can be awarded is capped at $25,000 for all matters the subject of the complaint is a question of law. In his submissions dealing with the amount of the cap, Mr Rahman stated that while the Tribunal found against his submission that each of the elements of his claim constituted a separate complaint, it only did so with the benefit of argument. In our view the benefit of any argument is not a matter which demonstrates that there are any special circumstances. The submission does not address the relative strengths of the parties' cases on this question. In our view the strength of Mr Rahman's case on this question of the $25,000 cap was relatively weak when compared with the relative strength of Dr Berwick's case on this claim. Mr Rahman's claim based on the strike out costs order 1. Mr Rahman's liability as a result of the strike out costs order was a loss suffered by him because of the unsatisfactory professional conduct of Dr Berwick (see par 43 above). 2. This claim by Mr Rahman raises the same question of the cap considered in par 62 above. What we have said there concerning the relative weakness of Mr Rahman's case and the relative strength of Dr Berwick's case also applies to the strike out costs order claim. In our view Mr Rahman has not shown any special circumstances warranting an award of costs in relation to the strike out costs order claim. Dr Berwick's claims for his costs incurred on and from 12 October 2015 of the proceedings brought by Mr Rahman for compensation 1. Paragraphs 11 – 20 above set out Dr Berwick's submissions which are said to show that special circumstances had been made out and that a costs order in favour of Dr Berwick is warranted. 2. We accept the submission in par 15 that there was no tenable basis in law for Mr Rahman's pursuit of amounts of compensation which exceeded $25,000. 3. So far as Mr Rahman's submissions referred to in par 16 above are concerned, we are of the view that any prolongation of the time taken to complete the proceedings would have been minimal. We are not prepared to find that Mr Rahman has been responsible for prolonging unreasonably the time taken to complete the proceedings as a result of the matters the subject of the submissions referred to in par 16. 4. If there had been no conditions attached to the three settlement offers which required Mr Rahman to provide a written release in favour of Dr Berwick against the pursuit of any other claims, then the Tribunal would have concluded that the settlement offers came within s 60(3)(g) of the NCAT Act. We would have had regard to these offers because we would have considered them relevant. However in this case settlement of Mr Rahman's claims did not require that he provide a release in favour of Dr Berwick against the pursuit of any other claims. We therefore will not have regard to the settlement offers on the question of whether a costs order should be made in favour of Dr Berwick as we do not consider them to be relevant to that question. Special circumstances 1. We are satisfied that there are special circumstances warranting an award of costs, having regard to the relative strength and weakness of the parties' claims referred to in pars 49, 57, 61, 62 and 64 above; our findings of no tenable basis in law for the claims referred to in pars 56 and 66; and the reasonable rejection by Mr Rahman of the three settlement offers. Orders 1. In the matter of the Council of the New South Wales Bar Association v John Patrick Berwick file number 2015/0038 3754 (1520067), the Tribunal makes the following orders: 1. Pursuant to s 50(1)(c) of the Civil and Administrative Tribunal Act 2013 the Tribunal dispenses with a hearing of the costs applications of the applicant Fahmid Rahman and the respondent Dr John Patrick Berwick. 2. Order that the respondent pay the applicant the applicant's costs of the issues: 1. whether the applicant suffered a loss of $25,349.16 because of the respondent's unsatisfactory professional conduct; and 2. whether the applicant was entitled to an order that the respondent pay him compensation in the amount of $25,000. 1. Subject to order (4), order that the applicant pay the respondent, the respondent's costs of the applicant's application for repayment to him of $33,000 and for compensation orders but excluding the issues referred to in order (2). 2. Order (3) does not include the costs incurred by the respondent in making the three settlement offers referred to in par 18 of these reasons. 3. Order that the applicant pay the respondent the respondent's costs of the issue whether the compensation which could be awarded was capped at $25,000 for all matters the subject of the complaint. 4. Order that the applicant pay the respondent, the respondent's costs of the issue whether the applicant was entitled to an order that the respondent pay the applicant's costs of the proceedings brought by the Council of the New South Wales Bar Association filed on 2 April 2015, file 2015/0038 3754 (1520067). ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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. Decision last updated: 18 June 2018