Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the Law Society of New South Wales v DRE [2019] NSWCATOD 147 Hearing dates: 27 August 2019 Date of orders: 30 September 2019 Decision date: 30 September 2019 Jurisdiction: Occupational Division Before: Cole DCJ, Deputy President M D Schyvens, Deputy President Professor P Foreman, General Member Decision: 1. The application filed on 19 December 2018 is dismissed. 2. The publication of the names of any person or law practice referred to in the application for disciplinary findings and orders filed on 19 December 2018 in this matter, or any material fact or information that could identify those persons or law practices, is prohibited. 3. The applicant is to pay the respondent's costs as agreed or assessed. 4. Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 and pending further order of the Tribunal, access to and disclosure of documents and evidence filed in the Tribunal in relation to this matter is restricted to the Office of the Legal Services Commissioner, the parties, and their respective legal representatives. Catchwords: PROFESSIONS AND TRADES – lawyers – dismissal by consent for procedural defect – costs – special circumstances Legislation Cited: Legal Profession Uniform Law (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Council of the Law Society of NSW v DXW [2019] NSWCATOD 101 Council of the Law Society of New South Wales v Judah [2019] NSWCATOD 135 Oshlack v Richmond River Council (1998) 193 CLR 72 Category: Principal judgment Parties: Council of the Law Society of New South Wales (Applicant) DRE (Respondent) Representation: Counsel: P Maddigan (Applicant) R S Hollo SC (Respondent) Solicitors: Law Society of New South Wales (Applicant) Moray & Agnew Lawyers (Respondent) File Number(s): 2018/00390764 Publication restriction: The publication of the names of any person or law practice referred to in the application for disciplinary findings and orders filed on 19 December 2018 in this matter, or any material fact or information that could identify those persons or law practices, is prohibited. REASONS FOR DECISION 1. The Council of the Law Society of NSW ('the Society') filed an application for disciplinary findings and orders under the Legal Profession Uniform Law (NSW) ('the Uniform Law') with respect to DRE, a solicitor, on 19 December 2018. 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'), Council of the Law Society of New South Wales v Judah [2019] NSWCATOD 135 ('Judah') and several other matters. 3. In view of the defect in the proceedings, the Society has applied for the application to be dismissed for want of jurisdiction. The respondent does not oppose this course. 4. The procedural defects in the process leading up to the filing of the application for disciplinary findings and orders in this matter render the proceedings a nullity, and consequently the Tribunal has no jurisdiction in the matter. Costs 1. The respondent seeks an order for costs in her favour. 2. It is clear that neither s 303 of the Uniform Law nor cl 23, Schedule 5 of the Civil and Administrative Tribunal Act 2013 (NSW) ('the CAT Act') apply, because both of those provisions concern orders for costs in circumstances where findings have been made as to whether the respondent to the disciplinary proceedings is guilty of unsatisfactory professional conduct or professional misconduct, and in this matter there have been no findings with respect to those issues because the Tribunal has no jurisdiction in the matter. 3. The applicable provision in relation to the application for 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 relies upon s 60(2) and (3)(c) and (e). 2. It is well established that an award of costs to a successful party in civil 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 legal proceedings. The motive of the unsuccessful party for bringing the proceedings is not relevant, even where that motivation is the public interest (see Oshlack v Richmond River Council (1998) 193 CLR 72 at [25]). 3. In this matter, as in Judah and other proceedings affected by the procedural defects described in DXW, special circumstances warranting an award of costs exist because the proceedings have no tenable basis in law on account of the procedural defects which render them a nullity and have the consequence that the Tribunal has no jurisdiction. 4. Accordingly, a costs order under s 60(2) of the CAT Act is warranted. Non-disclosure Order 1. A non-disclosure order was made by consent on 6 February 2019. In all of the circumstances, it is appropriate that a final non-disclosure order be made. Orders 1. The Tribunal makes the following orders: 1. The application filed on 19 December 2018 is dismissed. 2. The publication of the names of any person or law practice referred to in the application for disciplinary findings and orders filed on 19 December 2018 in this matter, or any material fact or information that could identify those persons or law practices, is prohibited. 3. The applicant is to pay the respondent's costs as agreed or assessed. 4. Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 and pending further order of the Tribunal, access to and disclosure of documents and evidence filed in the Tribunal in relation to this matter is restricted to the Office of the Legal Services Commissioner, the parties, and their respective legal representatives. ********** 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 Amendments 21 November 2019 - Added Order 4 pursuant to s 63 Civil and Administrative Tribunal Act 2013 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: 21 November 2019