Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the Law Society of New South Wales v EBA [2019] NSWCATOD 145 Hearing dates: On the papers Date of orders: 25 September 2019 Decision date: 25 September 2019 Jurisdiction: Occupational Division Before: Cole DCJ, Deputy President Decision: (1) The application filed on 18 March 2019 in this matter is dismissed. (2) The applicant is to pay the respondent's costs as agreed or assessed. (3) The publication of the name of the respondent and the names of all other persons referred to in the application filed in the Tribunal on 18 March 2019 in this matter, together with any information or material which could identify those persons, whether by itself or with other information and material, is prohibited. Catchwords: PROFESSIONS AND TRADES – lawyers – dismissal by consent for procedural defect – costs – special circumstances Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Legal Profession Uniform Law (NSW) Cases Cited: Council of the Law Society of New South Wales v Judah [2019] NSWCATOD 135 Council of the Law Society of NSW v DXW [2019] NSWCATOD 101 Cripps v G & M Dawson [2006] NSWCA 81 Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 Oshlack v Richmond River Council (1998) 193 CLR 72 Category: Principal judgment Parties: Council of the Law Society of New South Wales (Applicant) EBA (Respondent) Representation: Counsel: P Maddigan (Applicant) Solicitors: Law Society of New South Wales (Applicant) Boyd Criminal Lawyers (Respondent) File Number(s): 2019/00086009 Publication restriction: The publication of the name of the respondent and the names of all other persons referred to in the application filed in the Tribunal on 18 March 2019 in this matter, together with any information or material which could identify those persons, whether by itself or with other information and material, is prohibited. REASONS FOR DECISION 1. The Council of the Law Society of New South Wales ('the Society') filed an application for disciplinary findings and orders under the Legal Profession Uniform Law (NSW) ('the Uniform Law') with respect to EBA on 18 March 2019. 2. The proceedings are affected by the same defects that affected the proceedings in Council of the Law Society of NSW v DXW [2019] NSWCATOD 101 ('DXW'). The consequence in this matter, as in DXW, is that the Tribunal does not have jurisdiction to determine the application. 3. The Society has applied for the application to be dismissed for want of jurisdiction. The respondent does not oppose that order. The application will be dismissed for want of jurisdiction. 4. The respondent has sought an order for costs. The Society submitted that each party should bear its own costs. Costs 1. The parties correctly identified that neither clause 23(3) of Schedule 5 to the Civil and Administrative Tribunal Act 2013 (NSW) ('the CAT Act'), nor s 303(3) of the Legal Profession Uniform Law (NSW) apply to the application for costs in this matter. Those provisions are only engaged when there has been a finding that the practitioner the subject of the proceedings is not guilty of unsatisfactory professional conduct or professional misconduct, and, in this matter, there has been no finding with respect to those issues, because the Tribunal has no jurisdiction in the matter. 2. The applicable provision in relation to costs is s 60 of the CAT Act, which provides: 60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to 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: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to 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) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant. (4) If costs are to be awarded by the Tribunal, the Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (5) In this section: costs includes: (a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal. 1. The respondent argued that the Tribunal ought to find that there are special circumstances in this matter warranting an award of costs in favour of the respondent. The respondent cited Oshlack v Richmond River Council (1998) 193 CLR 72 at [25] as authority for the proposition that an award of costs to the successful party in litigation is not made to punish the unsuccessful party, but to compensate the successful party for the expense to which that party has been put by reason of the proceedings. The motivation of the unsuccessful claimant in bringing the proceedings is not relevant, even where that motivation is the public interest. The respondent relied upon s 60(3)(c), (e) and (g) of the CAT Act and submitted that the application had no tenable basis in fact or law and was misconceived. Further, the respondent argued that the fact that the Tribunal has no jurisdiction constitutes special circumstances within the meaning of s 60(2) of the CAT Act. 2. The Society properly conceded that the initiation of proceedings which were subsequently dismissed for want of jurisdiction is capable of constituting 'special circumstances'. 3. The Society submitted that 'special circumstances' need not be extraordinary or exceptional and that the phrase simply means circumstances which are out of the ordinary (Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11], applying Cripps v G & M Dawson [2006] NSWCA 81 at [60] per Santow JA). 4. The proceedings in Council of the Law Society of New South Wales v Judah [2019] NSWCATOD 135 ('Judah') were affected by the same defects as the proceedings in DXW and the proceedings in the present case. The Tribunal in Judah dismissed the application for disciplinary findings and considered an application for costs by the respondent. The Tribunal concluded, at [15]: (1) The application has in the circumstances no tenable basis in fact or law, is misconceived and the fact that the applicant commenced proceedings otherwise than in conformity with the provisions of the Uniform Law constitutes a matter which is relevant to the determination of this costs application; and (2) In our view, the circumstances described above constitute special circumstances in that they are out of the ordinary. Furthermore, we find that these special circumstances warrant an award of costs because the respondent has been put to expense by reason of the bringing of the application. … 1. I find, in the present proceedings, that the application before me has no tenable basis in law on account of the defects in the process leading up to its filing in the Tribunal. I determine that the circumstances of this matter constitute special circumstances warranting an award of costs within the meaning of s 60(2) of the CAT Act. Non-disclosure order 1. The respondent sought a non-disclosure order under s 64 of the CAT Act. The making of such an order was not opposed. Given the nature of the subject matter of the proceedings, and the fact that they have not been validly instituted, I am satisfied that it is desirable to make an order prohibiting the disclosure of the name of the respondent and the names of all other persons referred to in the application filed on 18 March 2019 in this matter, together with any information or material which could identify those persons, whether by itself or with other information or material. Orders 1. The Tribunal makes the following orders: 1. The application filed on 18 March 2019 in this matter is dismissed. 2. The applicant is to pay the respondent's costs as agreed or assessed. 3. The publication of the name of the respondent and the names of all other persons referred to in the application filed in the Tribunal on 18 March 2019 in this matter, together with any information or material which could identify those persons, whether by itself or with other information and material, is prohibited. ********** 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: 25 September 2019