Council of the New South Wales Bar Association v Archer (No 5)

[2005] NSWADT 72

CITATION:	New South Wales Bar Association v Archer [2005] NSWADT 72
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the New South Wales Bar Association RESPONDENT Stephen John Archer
FILE NUMBER:	032019
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	02/28/2005
DATE OF DECISION:	04/01/2005
BEFORE:	Chesterman M - ADCJ (Deputy President); Norton S SC - Judicial Member; Bennett C - Non Judicial Member
APPLICATION:	Summons - application to set aside
MATTER FOR DECISION:	Costs
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Justices Act 1902 Legal Profession Act 2004 Veterinary Surgeons Act 1986
CASES CITED:	Barwick v Law Society of New South Wales (No 2) (LSD) [2003] NSWADTAP 4 Brooks Maher v Cheung [2001] NSWADT 18 Charteris v General Manager, Leichhardt Municipal Council (No 2) (GD) [2001] NSWADTAP 39 Citadin Pty Ltd (No 20) v Eddie Azzi Australia Pty Ltd & General Pants Co Pty Ltd (RLD) [2001] NSWADTAP 31 Council of the New South Wales Bar Association v Archer (No 2) [2004] NSWADT 78 Council of the New South Wales Bar Association v Archer (No 3) [2004] NSWADT 232 Danielletto v Khera (1995) 35 NSWLR 684 Darcey v Pre-Term Foundation Clinic [1983] 2 NSWLR 497 Dechnicz v Law Society of New South Wales [2002] NSWADT 198 Law Society of New South Wales v Carver [2003] NSW ADT 158 Law Society of New South Wales v Khera (No 2) [2004] NSWADT 103 New South Wales Bar Association v Archer [2004] NSWADT 38 New South Wales Bar Association v Tedeschi (No 3) [2003] NSWADT 174 R v Forbes; ex parte Bevan (1972) 127 CLR 1 Thurairajah v Law Society of New South Wales (LSD) [2002] NSWADTAP 22 Walsh v Law Society of New South Wales (1999) 198 CLR 73
REPRESENTATION:	APPLICANT Council of the New South Wales Bar Association RESPONDENT Stephen John Archer
ORDERS:	1. The Applicant is to pay the costs, as agreed or assessed, of the Third Party's application to set aside the summons addressed to her 2. The amount to be paid should include the costs of this application for an award of costs

The scope of this judgment

1 This judgment deals with two questions, arising in the course of proceedings instituted by the Council of the Bar Association of New South Wales, as Applicant, under Part 10 of the Legal Profession Act 1987 (‘the LP Act’) against Stephen John Archer, the Respondent.

2 The first question is whether the Tribunal, in a case brought to it under Part 10, has power to award costs in situations not covered by the provisions of s 171E of the LP Act. If such a power existed, it would stem from s 88 of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’).

3 The second question, arising for determination if the answer to the first question is yes, is whether, in the circumstances set out below, the requirement of ‘special circumstances’ in s 88(1) of the ADT Act has been satisfied, so as to warrant the making of a costs order against the Applicant in favour of a third party, Sarah Anne Archer (‘Mrs Archer’). Mrs Archer is the wife of the Respondent.

Outline of facts

4 On 9 October 2003, the Council of the Bar Association of New South Wales (‘the Bar Council’), as Applicant, filed in the Tribunal an Information under Part 10 of the LP Act against the Respondent (‘Mr Archer’). It set out two complaints and alleged that he had been guilty of professional misconduct.

5 On 10 November 2003, at the instigation of the Bar Council, the Tribunal issued 16 summonses to produce documents. One of these was addressed to Mr Archer and another to Mrs Archer. The remaining 14 were addressed to other third parties. The Tribunal’s power to issue such a summonses is conferred by s 84 of the ADT Act.

6 The summons to Mrs Archer required her to produce a very wide range of documents and records relating to her affairs ‘from 1 July 1987 to date’. Ten categories were set out in the clauses of the schedule.

7 Specifically, she was required to produce all documents and records (electronic or otherwise) relating to any of the following: any bank account held by her (whether in her own name or jointly with any other person or entity) or of which she was a signatory; any purchase or sale of real estate or shares (whether in her own name or jointly with any other person or entity); the ownership and registration of any motor vehicle registered in her name or in respect of which she had an entitlement to use; and any trust or superannuation scheme set up for the benefit of her or her family.

8 Also required was the production of all statements in respect of any credit card held by her (whether in her own name or jointly with any other person or entity) or of which she was a signatory; all her tax returns and notices of assessment; all her ‘financial and accounting documents and records (electronic or otherwise)’; and all her passports, or copies thereof.

9 Two further categories of documents required to be produced were defined as follows: -

1.3 All records (electronic or otherwise) from 1 July 1987 to date relating to the payment to you of any money by Stephen John Archer and all records from 1 July 1987 to date relating to any payments by Stephen John Archer on your behalf.

1.7 All documents and records (electronic or otherwise) evidencing any payment to or on behalf of Stephen John Archer for the period 1 July 1987 to date and without limiting the generality thereof correspondence, invoice (sic), statements, cheque butts, electronic banking records.

10 It would appear that this summons to Mrs Archer, dated 10 November 2003, was never served on her. The other 15 summonses were all served.

11 In an application to the Tribunal, Mr Archer challenged the width of all these summonses. In a reserved judgment, delivered on 25 February 2004 (New South Wales Bar Association v Archer [2004] NSWADT 38), we dismissed the application, subject to one qualification. This was that the test of relevance to be applied in these circumstances was not, in our view, satisfied by the requirements in Clauses 1.6 and 1.8 of the summons to Mr Archer to produce

(a) all records relating to ‘any family trust’ and

(b) all records relating to ‘any superannuation scheme’.

We accordingly ordered that the clauses imposing these requirements should be deleted from the summons to Mr Archer.

12 Clause 1.10 of the summons to Mrs Archer required production of documents within the same categories as those set out in Clauses 1.6 and 1.8 of the summons to Mr Archer.

13 On 5 March 2004, at the instigation of the Bar Council, the Tribunal issued a further summons to Mrs Archer. It was in the same terms as the preceding summons.

14 On 6 May 2004, Mrs Archer and Mr Archer filed separate applications for orders that the summons to her should be set aside. These applications were heard by us on 21 September 2004.

15 In our decision, delivered on 13 October 2004 (Council of the New South Wales Bar Association v Archer (No 3) [2004] NSWADT 232), we allowed Mrs Archer’s application in part. We ordered that clauses 1.1, 1.2, 1.4, 1.5, 1.6, 1.8, 1.9 and 1.10 of the summons should be struck out. The outcome was that the only clauses which we held to be valid and enforceable were Clauses 1.3 and 1.7, which are quoted above at [9]. We made no order on the concurrent application brought by Mr Archer.

16 The principal grounds that Mrs Archer had put forward were that the summons imposed an oppressive obligation on her and that it required the production of numerous documents that were irrelevant to the proceedings against Mr Archer.

17 As set out in our reasons for judgment at [59 – 90], our decision was based on the former ground, that of oppressiveness. At [91], we explained in the following terms why our decision on this second application diverged from our earlier decision: -

We are aware that our conclusion in relation to this summons is substantially the opposite of our conclusion on a summons in the same terms in Archer (No 1). By way of explanation, we would note our acceptance of the Respondent’s submission, mentioned above at [45], that because Walsh v Law Society of New South Wales (1999) 198 CLR 73 was not cited to us in that earlier hearing, our decision regarding the summons to Mrs Archer was per incuriam . It is relevant also that the submissions to us at that hearing did not highlight either this particular summons (which was one of a group of 16 before us) or the importance of the distinction between Mrs Archer’s independent financial transactions and her transactions that in some way involved the Respondent. It was only in the course of hearing argument on the matters dealt with in Archer (No 2) that the importance of both this distinction and the decision in Walsh was fully brought home to us.

18 The significant aspect of the decision in Walsh v Law Society of New South Wales was its emphasis on the importance of confining the hearing of an information laid under Part 10 of the LP Act to the specific allegations particularised in the information. Both the precise content of the allegations made in this case against Mr Archer and the significance of Walsh had been prominent in the hearing and determination of an application by Mr Archer for the Information in this case to be dismissed on the ground that the matters set out in it were incapable in law of constituting professional misconduct within the meaning of the LP Act. In a reserved judgment delivered on 21 April 2004 (Council of the New South Wales Bar Association v Archer (No 2) [2004] NSWADT 78 – Archer (No 2)), we had dismissed this application.

19 In the orders that we made on 13 October 2004, we gave liberty to Mrs Archer to apply for a costs order. We indicated that if she did so, the matter would be resolved by a decision ‘on the papers’ under s 76 of the ADT Act, unless we received a request for a hearing.

20 On 17 November 2004, Mrs Archer filed an application dated 12 November 2004, together with supporting submissions, for an order that the costs of and incidental to her application to set aside the summons should be paid by the Bar Council.

21 At our direction, the Registry wrote on 25 November 2004 to Ms Meredith, solicitor for Mrs Archer, inviting further submissions on the question which we have described above (at [2]) as the ‘first question’ to be addressed in this decision. Ms Meredith filed supplementary submissions, dated 14 December 2004, in response to this invitation.

22 On 15 February 2005, Mr Alan Blanch, solicitor for the Bar Council, filed written submissions, responding to both sets of submissions put to us by Ms Meredith. Ms Meredith filed submissions in reply on 28 February 2005.

23 The submissions by Mr Blanch included an argument that, since the issue whether Mrs Archer has fully complied with the requirements of the two surviving clauses remains live between her and the Bar Council, we should not now determine her application for costs. We agree, however, with Ms Meredith’s assertion in response that our decision on the summons was ‘complete in itself’ and has no connection with this issue of compliance.

24 We will now deal in turn with the two questions posed by us above at [2 – 3].

The scope of the Tribunal’s power to award costs in proceedings under Part 10 of the Legal Profession Act

25 Relevant statutory provisions. The two provisions to which we must principally refer in determining the scope of the Tribunal’s power to award costs in the present proceedings are s 171E of the LP Act and s 88 of the ADT Act.

26 Section 171E of the LP Act is as follows: -

171E Award of costs by Tribunal
(1) The Tribunal may make orders requiring a legal practitioner whom it has found guilty of unsatisfactory professional conduct or professional misconduct to pay costs (including the costs of the Commissioner, the appropriate Council and the complainant).

(2) If, after it has completed a hearing relating to a complaint against a legal practitioner, the Tribunal is satisfied that the practitioner is not guilty of unsatisfactory professional conduct or professional misconduct, the Tribunal may (but only if it considers that special circumstances so warrant) order payment from the Public Purpose Fund to the practitioner of the legal practitioner’s costs.

(3) An order for costs:

(a) may be for a specified amount or an unspecified amount, and

(b) if for an unspecified amount, may specify the basis on which the amount is to be determined, and

(c) may specify the terms on which costs must be paid.

27 The Bar Council is ‘the appropriate Council’ in these proceedings. The phrase ‘the Commissioner’ denotes the Legal Services Commissioner.

28 Section 88 of the ADT Act is as follows: -

88 Costs
(1)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 there are special circumstances warranting an award of costs.

(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 the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 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.

29 We must refer also to ss 7 and 37 of the ADT Act. Section 7 defines ‘original decision’ as ‘a decision of the Tribunal made in relation to a matter over which it has jurisdiction under an enactment to act as the primary decision-maker’. Section 37 states that

The Tribunal has jurisdiction under an enactment to act as the primary decision-maker if the enactment provides that applications may be made to it for decisions made in the exercise of functions conferred or imposed on the Tribunal by or under that enactment.

30 The provision conferring such jurisdiction on the Tribunal under the LP Act is s 167(1) of that Act. It is located within Part 10 and states as follows: -

Proceedings may be instituted in the Tribunal with respect to a complaint against a legal practitioner by an information laid by the appropriate Council or the Commissioner in accordance with this Part.

31 Finally, s 142 of the ADT Act makes it clear that an information such as was laid by the Bar Council in these proceedings is an ‘application’ within the meaning of s 37 of the ADT Act.

32 No inherent power to award costs. It is useful to indicate at the outset that the Tribunal has no inherent jurisdiction to award costs. Any power of this nature that it possesses must be conferred by statute, expressly or by clear implication. Authority for this is to be found in Dechnicz v Law Society of New South Wales [2002] NSWADT 198 at [12] and Law Society of New South Wales v Carver [2003] NSW ADT 158 at [23].

33 The scope of operation of s 171E of the LP Act. It is clear from the express words of s 171E that this section does not empower the Tribunal to make the costs order sought by Mrs Archer.

34 This section provides only for costs orders to be made in favour of ‘the appropriate Council’ or the Commissioner (subsection (1)) or a legal practitioner against whom an Information has been laid (subsection (2)). It makes no provision for an order that ‘the appropriate Council’ pay costs incurred by a third party, such as Mrs Archer.

35 Moreover, an order under subsection (1) can only be made following a finding of professional misconduct or unsatisfactory conduct, and an order under subsection (2) cannot be made unless the Tribunal has ‘completed a hearing’ and is ‘satisfied that the practitioner is not guilty of unsatisfactory professional conduct or professional misconduct’. The Tribunal has more than once given effect to these requirements of subsection (2) in rejecting an application for costs by a legal practitioner: see for example Dechnicz v Law Society of New South Wales [2002] NSWADT 198 at [21 – 24]; Law Society of New South Wales v Carver [2003] NSW ADT 158 at [24 – 39].

36 In her submissions on Mrs Archer’s behalf, Ms Meredith did not in fact suggest that s 171E provided a basis for a costs order in her favour.

37 Submissions as to the applicability of s 88 of the ADT Act. The principal argument advanced by Ms Meredith was instead that s 88(1) of the ADT Act provided the necessary statutory authority. In her submission, the powers conferred on the Tribunal by this subsection included a broad power to make costs orders in favour of third parties in interlocutory proceedings before it, so long as the requirement of ‘special circumstances’ stipulated in the subsection was satisfied. The generality of the phrase ‘in relation to proceedings’ in s 88(1) and the statement in s 88(2) that the Tribunal should determine ‘by whom and to what extent’ costs should be paid indicated that the Tribunal’s power was intended to be very wide.

38 Ms Meredith submitted further that s 171E was concerned only with the making of costs orders between ‘the appropriate Council’ and a legal practitioner. Moreover, the only proceedings with which it dealt were ‘proceedings for an original decision’ under the LP Act. Similarly, s 88(3) of the ADT Act also applied only to ‘proceedings for an original decision’. For these reasons, no limitation arising expressly or by implication from either provision detracted from the broad power conferred by s 88(1).

39 Ms Meredith’s submission also included the contention that since ‘proceedings for an original decision’ could indirectly involve third parties, such as Mrs Archer, there was ‘no logical reason’ why a third party who had been successful against one of the parties to the principal proceedings should not recover his or her costs from the unsuccessful party, provided that ‘special circumstances’ could be shown.

40 In his submissions on behalf of the Bar Council, Mr Blanch pointed out first that, while s 171E of the LP Act did not deal with the issue of costs awards in favour of a third party, it was not irrelevant in the present case. Subsection (2), in association with ss 69F and 69G of the LP Act, indicated that any costs order against the Bar Council would be paid out of the Public Purpose Fund. This provided support for the propositions that the Bar Council exercised its functions under Part 10 ‘in the broader public interest’ and that therefore it was only in the restricted circumstances set out in the subsection that costs orders could be made against the Bar Council.

41 Mr Blanch then submitted, as Ms Meredith had done, that the Tribunal, in determining a complaint referred to it under s 167 of the LP Act, exercised its jurisdiction as the ‘primary decision maker’ in ‘proceedings for an original decision’, within the meaning of ss 7 and 37 of the ADT Act. Accordingly, any power to order costs in proceedings under the LP Act that might derive from s 88(1) of the ADT Act was subject to a requirement, stated in s 88(3), that the LP Act must itself ‘provide for’ the awarding of costs. The LP Act did so provide, but only in the circumstances set out in s 171E. It followed, Mr Blanch asserted, that the Tribunal had no power to order costs in other circumstances, such as those arising here.

42 Finally, Mr Blanch suggested, more or less as Ms Meredith had done, that the costs order sought by Mrs Archer fell within the range of orders contemplated by s 88 of the ADT Act. It related, he said, to ‘costs incidental to the proceedings’, within the meaning of s 88(4). But for the reasons just given, it was not open to the Tribunal to make the order.

43 In her submissions in reply, Ms Meredith argued that Mr Blanch’s reasoning was ‘fundamentally flawed’ because it assumed that the only source of the Tribunal’s ‘jurisdiction’ was the LP Act. There were however numerous matters on which the Tribunal’s jurisdiction stemmed from the ADT Act: for example, the issuing of summonses to witnesses.

44 Relevant authorities. Neither Ms Meredith nor Mr Blanch referred us to any authority bearing directly or indirectly on the relationship between s 171E and s 88. Our own researches have however unearthed a few isolated pronouncements, most of which are not supported by any detailed analysis.

45 In Thurairajah v Law Society of New South Wales (LSD) [2002] NSWADTAP 22, an Appeal Panel of this Tribunal held that in the circumstances before it an award of costs could not be made under s 171E(1) of the LP Act against the legal practitioner involved in the proceedings because he had not been found guilty of professional misconduct or unsatisfactory professional conduct. It then stated, at [40]: ‘There is a question as to whether s 88(3) (sic) of the Tribunal Act confers some broader power to award costs than that granted by s 171E of the Legal Profession Act’. At [41], it added: ‘It may be that the Appeal Panel has no power at this stage to award costs; or its only power derives from s 88(1)’.

46 In Barwick v Law Society of New South Wales (No 2) (LSD) [2003] NSWADTAP 4, at [206], an Appeal Panel expressed the opinion that s 171E of the LP Act might well empower the Panel to award costs against a practitioner since a Panel, as defined in s 4 of the ADT Act, was ‘part of the Tribunal’. It then stated: -

If it is not the case that the rule in s 171E applies directly to the Appeal Panel, then we are of the view that the underlying rule applying to this class of proceedings provides a ‘special circumstance’ within the meaning of s 88(1) of the Tribunal Act.

47 In Law Society of New South Wales v Khera (No 2) [2004] NSWADT 103, a respondent in Part 10 proceedings obtained the issue of a summons to produce documents to his former partner in a firm of solicitors. As a result of objections by the former partner on grounds of relevance and width, the Tribunal slightly reduced the scope of the summons. The former partner, having produced the required documents, applied to the Tribunal for an order requiring the respondent to pay an amount to cover his costs and expenses.

48 In its judgment at [9], the Tribunal quoted a comment by Bryson J in Danielletto v Khera (1995) 35 NSWLR 684 at 688 (a case involving the same two parties) in the following terms:

‘it is not just to make the witness give attention to someone else’s litigation without being paid for his time’.
The Tribunal held that the former partner was entitled under s 141 of the ADT Act to the payment of ‘allowances and expenses’, ascertained in accordance with a scale prescribed in the regulations. It then pointed out, at [12], that this scale, which sets out rates for time spent in attending and giving evidence and for travel expenses, takes no account of ‘the time and trouble involved in gathering material in compliance with a subpoena’. It accordingly indicated, at [14], that it would ‘apply the same approach to section 141 insofar as it may fail to expressly address the loss of professional income suffered by [the former partner] in complying with the Tribunal’s attendance and production requirement’.

49 It then went on to say, at [15]: -

We further note that our ability to make an order for costs may be affected by the requirements of Section 88 of the Administrative Decisions Tribunal Act. We are satisfied that the issue of a summons against a person who is not a party amounts to the requisite special circumstances. We are further satisfied that this extends, in this matter, to the appearance to argue the width of the summons, and indeed the submissions, preparation for and attendance at today’s hearing.

50 Its order was in the following terms: -

The Respondent is to pay the costs and proper expenses of Mr Jones as assessed in complying with the Summons to Produce Documents, preparation for and subsequent appearances (including today’s) at this Tribunal.

51 At no point in the judgment in Law Society v Khera did the Tribunal refer to s 171E of the LP Act.

52 Indirect guidance is provided by the following observations of Bryson J in the Supreme Court case to which the Tribunal in Khera referred – namely, Danielletto v Khera (1995) 35 NSWLR 684. At 688, his Honour said: -

If the Court is invoked by a party to use public power to compel a person to give attention to preparation to hear litigation, there is a just entitlement to payment for the time of the person whose attention thus required and whose liberty and freedom of action are thus interfered with. A law which entitled a party to conscript the time and attention of others without paying for it would be oppressive. It would also be very poor policy as it would tend to generate resistance to the ordinary administration of justice.

53 The expenses successfully claimed in this case included the cost of briefing counsel to appear at a hearing of the subpoena in order to contest it on the ground that it was unduly wide. Before this hearing, the subpoena was withdrawn. The Court’s order allowing the claim was expressly based (at 686) on ‘the court’s inherent power to administer justice’.

54 In Darcey v Pre-Term Foundation Clinic [1983] 2 NSWLR 497, Hunt J held that when a summons to produce documents issued under s 61 of the Justices Act 1902 had been set aside by a Court of Petty Sessions on the ground of irrelevance to the issues to be determined in the proceedings, the Court had ‘inherent jurisdiction’ to award costs against the party issuing the subpoena. He held, at 504, that the Court had jurisdiction to control abuses of its process. He then stated, adapting a phrase used by the High Court in R v Forbes; ex parte Bevan (1972) 127 CLR 1 at 8 with reference to the Commonwealth Industrial Court, that ‘an order for costs made by such a court in relation to an abuse of its process would not be such as would go beyond the protection of its function as a court constituted with the limited jurisdiction afforded by its statute’.

55 Hunt J then said, at 504: -

It would be manifestly unfair for a person upon whom a subpoena has been served, and who has successfully moved to have that subpoena set aside, not to have his costs of that application, just as it would be manifestly unfair for the party who issued the summons under s 61 for the production of the documents not to have his costs if the application to set aside the summons is unsuccessful. To deny the court the jurisdiction to make such an order would be to encourage outrageous subpoenas such as the one in question here, and to bring the administration of justice into disrepute among right-thinking people.

56 These authorities provide support for Ms Meredith’s argument. But an opposing opinion was expressed by the Tribunal in Law Society of New South Wales v Carver [2003] NSW ADT 158 at [5], It stated, immediately after referring to s 171E of the LP Act: -

There is no other applicable statutory source of power to award costs in cases under part 10 of the Act.

57 Although the judgment in this case refers elsewhere to the ADT Act, it contains no mention of s 88 of this Act.

58 Another relevant passage in a recent Tribunal judgment appears in New South Wales Bar Association v Tedeschi (No 3) [2003] NSWADT 174. At [8 – 13], under the heading ‘History of section 171E’, the Tribunal drew attention to the fact that when the LP Act was initially passed in 1987, it contained no provision for a legal practitioner to obtain an award of costs in proceedings under Part 10. The only provision regarding costs was equivalent to the present s 171E(1), authorising costs orders against a practitioner. A provision similar to the present s 171E(2), authorising costs orders in favour of a practitioner, was inserted in amending legislation in 1989. These provisions were re-enacted in 1993 as s 171E. None of the Second Reading speeches accompanying this legislation mentioned the question of costs orders in favour of third parties.

59 Our conclusions regarding s 88. We have not found this issue to be an easy one. But after some hesitation, we have concluded that in Part 10 proceedings the provisions of s 88(1) of the ADT Act may be invoked where costs are sought by or against a third party. Our reasons are as follows.

60 Under s 88(3), the Tribunal cannot award costs in relation to proceedings for an original jurisdiction unless the enactment conferring jurisdiction – in this case, the LP Act – ‘provides for the awarding of costs’.

61 The express terms of 171E of the LP Act do exactly this with reference to Part 10 proceedings. But they deal only with costs as between the applicant – an ‘appropriate Council’ or the Commissioner – and the respondent practitioner. They contain no express provision regarding costs orders as between one of the parties to the proceedings and a third party.

62 It may be argued that the terms of s 171E, interpreted in the light of the section’s historical background, convey a legislative intention that they should cover all the circumstances in which the Tribunal may award costs in such proceedings. They define specific conditions for the making of a costs order, which differ markedly according to whether the order is against or in favour of a legal practitioner. They reflect a parliamentary intention to restrict the range of circumstances in which the Public Purpose Fund should have to bear the burden of costs awards. They contain no indication of being open to supplementation by other statutory provisions. They have reached their present form after the issues involved have received ministerial and parliamentary consideration on several occasions.

63 If this contention were correct, it would be clear that s 88(1) of the ADT Act, even though it was enacted subsequently (in 1997), would not confer any additional power to make costs orders in Part 10 proceedings. The reason is not to be found in s 88(3), as Mr Blanch argued, but in s 88(1) itself. The opening words of this subsection are ‘Subject to the rules of the Tribunal and any other Act or law…’ (our emphasis). It follows that if s 171E is to be interpreted as just outlined, it would exclude the conferral by s 88(1) of any additional power to make costs orders.

64 We do not believe, however, that s 171E should be construed as ‘covering the field’ in this way. For the reasons that are eloquently expressed by Bryson J in Danielletto v Khera and by Hunt J in Darcey v Pre-Term Foundation Clinic, this interpretation has the potential to cause considerable injustice to third parties who become involved against their wishes in Part 10 proceedings, from which they do not stand to derive any benefit. We see no reason why such people should be wholly excluded from any entitlement whatsoever to claim costs, no matter how unfairly they have been compelled to incur them. The requirement of ‘special circumstances’ in s 88(1) will ensure that their claim will not be successful merely by showing that they have prevailed against one or other party to the proceedings in an application such as the present one.

65 The reasoning adopted in Darcey v Pre-Term Foundation Clinic may well be directly applicable to the present case. This Tribunal, like a Court of Petty Sessions at the time of the Darcey judgment, has no inherent jurisdiction such as a superior court possesses. Its jurisdiction is statutory only. But Hunt J treated the power of a Court of Petty Sessions to set aside a summons to produce documents on grounds of abuse of process or irrelevance as necessarily implying that the Court also had power to award costs on the application to set aside. His ruling suggests that the Tribunal, having in this case acceded in part to Mrs Archer’s application to set aside the summons addressed to her on grounds of oppressiveness, should also implicitly have power to make an appropriate award costs on her application. That power must, however, be subject to the restrictions stipulated in s 88 of the ADT Act.

66 The historical material outlined by the Tribunal in the Tedeschi decision suggests to us that when s 171E and the provisions predating it were enacted in their various forms, no thought was given to the question of costs claims by or against third parties. If this question had been considered, and the legislative intention had been to rule out any such claims, it would have been easy to include a provision making it clear that s 171E was intended to ‘cover the field’.

67 Our conclusion, for these reasons, is that s 88(1) of the ADT Act empowers the Tribunal to make costs orders in Part 10 proceedings when costs orders are sought by or against a third party. On the other hand, all issues of costs as between the parties to the proceedings fall to be resolved under s 171E of the LP Act.

68 We note finally that this ruling will have a limited life span. The reason is that s 171E will cease to apply in the not too distant future. In the Legal Profession Act 2004, which was enacted late last year and will come into force on a date to be proclaimed, it will be replaced by a new provision (s 566), which is in different terms.

69 We turn now to the question whether Mrs Archer has established that, as s 88(1) requires, there are ‘special circumstances warranting an order for costs’ in her favour.

The requirement of ‘special circumstances warranting an order for costs’

70 Relevant authorities. Ms Meredith and Mr Blanch both referred us to observations on the meaning of ‘special circumstances’ in Brooks Maher v Cheung [2001] NSWADT 18 at [11 – 14], that were quoted and approved by the Appeal Panel in Charteris v General Manager, Leichhardt Municipal Council (No 2) (GD) [2001] NSWADTAP 39 at [13]. These are to the effect that ‘special circumstances’ means ‘circumstances which are out of the ordinary, without having to be extraordinary or exceptional’ (Brooks Maher at [14]).

71 Mr Blanch also reminded us that, as stated in these two cases, it is not enough to show ‘special circumstances’. In addition, the ‘special circumstances’ must ‘warrant’ an award of costs.

72 In New South Wales Bar Association v Tedeschi (No 3) [2003] NSWADT 174, at [14], the Tribunal referred to submissions made to it as to the meaning of the phrase ‘special circumstances so warrant’ in s 171E(2) of the LP Act. The Tribunal expressed no disagreement with them. It stated that, according to these submissions, the phrase required

…something unusual or different about the case to take the matter out of the ordinary course, according to which the presumption that there be no costs order would be expected to apply, which renders that ordinary course apparently less appropriate or fair. But that does not require that the case be extremely unusual, uncommon or exceptional.

73 The cases applying s 88(1) provide illustrations of established categories of ‘special circumstances’. The category most relevant to this case is that of a claim by an applicant or a set of defences that has no tenable basis in fact or in law and is therefore without merit (see eg Citadin Pty Ltd (No 20) v Eddie Azzi Australia Pty Ltd & General Pants Co Pty Ltd (RLD) [2001] NSWADTAP 31 at [23]). But it is recognised that the categories of ‘special circumstances’ are not closed.

74 Law Society of New South Wales v Khera (No 2) [2004] NSWADT 103, to which we have referred above, is the only Tribunal decision that we have located dealing with the awarding of costs under s 88(1) to a person who was not a party to proceedings. An observation of immediate relevance here, which we have already quoted, is to be found in this decision at [15]: -

We are satisfied that the issue of a summons against a person who is not a party amounts to the requisite special circumstances.

75 The submissions of the parties. Ms Meredith advanced a number of reasons why we should find that the requirement of ‘special circumstances’ was satisfied in this case.

76 These can be summarised in the following way. Mrs Archer ‘was, in all relevant respects, a third party to the proceedings against whom the Informant, by the Summons, quite improperly sought what was, in all practical senses, discovery’. The summons required the production of ‘a vast quantity of documents that could not have been thought rationally to have had any relevant connection to any ‘issue’ in the proceedings. It did this even though before the hearing of Mrs Archer’s application the Bar Council’s attention had already been drawn to Walsh v Law Society of New South Wales (1999) 198 CLR 73 and its implications for the summons. Mrs Archer was for these reasons compelled to retain solicitors and counsel to seek to have the summons set aside. At the hearing of her application, the Bar Council tried to sustain every clause of the summons even though some of them – most notably, Clause 1.10, the equivalent of which in the earlier summons had been struck down by our decision in New South Wales Bar Association v Archer [2004] NSWADT 38 – were clearly not supportable. It also advanced an interpretation of the Information that was ‘clearly untenable’. Finally, Mrs Archer’s application to set aside the summons was ‘substantially’, indeed ‘almost wholly’, successful.

77 The main points made by Mr Blanch in his opposing submission were these. An application, such as this one, to set aside a summons to produce documents was ‘a not uncommon event in litigation of this kind’. Although we struck down all but two of the ten clauses of the summons, there was no evidence comparing the ‘volume’ of the documents falling within the two clauses that we struck down with the ‘volume’ of those within the surviving eight clauses. Furthermore, as we pointed out (Council of the New South Wales Bar Association v Archer (No 3) [2004] NSWADT 232 at [71 – 72]), some of the documents within the former group of clauses also fell within the latter group. The Bar Council should indeed be regarded as having been ‘substantially successful’ in opposing the application. Accordingly, the overall stance adopted by the Bar Council can clearly not be described as ‘without merit in fact or in law’, nor can its interpretation of the Information be described as ‘untenable’. Mrs Archer’s representatives did not advise the Bar Council of the grounds of objection to the summons until just before the hearing, so the Council had no opportunity to consider withdrawing or amending the summons. Finally, Mr Archer’s disposition of income and lifestyle were issues in the proceedings, and Mrs Archer was both his wife and the recipient of considerable sums of money from him over an extended period.

78 Our conclusions. Again, we have not found this issue easy to determine. Our conclusion is that ‘special circumstances warranting an award of costs’ have in fact been shown to exist.

79 We base this conclusion principally in the policy considerations outlined by Bryson J in Danielletto v Khera (1995) 35 NSWLR 684 at 688 and Hunt J in Darcey v Pre-Term Foundation Clinic [1983] 2 NSWLR 497 at 504 (see [52], [55] above). When summonses to produce documents are issued against people who are not parties to the proceedings, those people are compelled, often against their will and without any expectation of benefit, to give up time and labour to identifying and delivering the required documents. They become involuntary assistants in the administration of justice. In cases where they satisfy the court or tribunal that compliance with the summons would impose burdens on them that are unjustifiably heavy, having regard to the issues to be resolved in the proceedings, Hunt J described the suggestion that they might not have their costs as ‘manifestly unfair’.

80 Contrary to a submission made by Mr Blanch, we would regard a successful application to set aside a summons to produce documents on grounds of oppressiveness and/or irrelevance as a proceeding that is ‘out of the ordinary’, though not ‘extraordinary or exceptional’. With reference to the test suggested in New South Wales Bar Association v Tedeschi (No 3) [2003] NSWADT 174 (see [72] above), we consider that the present case is indeed one, for the reasons given by Hunt J, where ‘the presumption that there be no costs order’ should not apply, because that ‘ordinary course’ would be ‘less appropriate or fair’. While Mrs Archer did not succeed in wholly setting aside the summons, our order substantially reduced, on the ground of oppressiveness, the categories and (almost certainly) the volume of documents that she was required to produce.

81 In reaching this conclusion, we have treated as irrelevant Mrs Archer’s personal and financial relationship to the Respondent in these proceedings. What matters is her role as recipient of a summons in the proceedings, without being a party to them. She is entitled to the same degree of protection from the consequences of an oppressive summons as a recipient who had no other connection with the proceedings.

82 It will be noted that we do not go as far as to subscribe to the broad proposition, advanced by the Tribunal in Law Society of New South Wales v Khera (No 2), that ‘the issue of a summons against a person who is not a party amounts to the requisite special circumstances’.

83 We also do not accept Ms Meredith’s submissions in so far as they asserted that the Bar Council’s claim of an entitlement to issue the summons against Mrs Archer had no merit in fact or in law. Our earlier decision dealing with summonses in this case (New South Wales Bar Association v Archer [2004] NSWADT 38) provided the basis for a reasonable belief on the Council’s part that (leaving aside Clause 1.10, which we had effectively held in that decision to be unsustainable) Mrs Archer’s application might successfully be resisted, to a significant extent at least. At most, the Bar Council should have suspected that, in view of our intervening decision (Council of the New South Wales Bar Association v Archer (No 2) [2004] NSWADT 78) and its reliance on Walsh v Law Society of New South Wales (1999) 198 CLR 73, the second summons to Mrs Archer was more vulnerable to challenge than the first one had been.

84 We agree with Ms Meredith that some aspects of the interpretation of the Information advanced by the Bar Council at the hearing were unsustainable. But this is not of itself to render untenable the overall position taken by the Bar Council. In fact, the two clauses that we upheld (Clauses 1.3 and 1.7; see [9] above) might well embrace documents of genuine significance for this case that would not be obtained through any of the other summonses that have been issued.

85 We equally do not agree with Ms Meredith’s submission that Mrs Archer should have an order for costs in her favour on the sole ground that she was compelled to brief counsel in order to challenge the summons. This factor of itself has been specifically held not to constitute ‘special circumstances’: see Charteris v General Manager, Leichhardt Municipal Council (No 2) (GD) [2001] NSWADTAP 39 at [45]. Having held on other grounds that ‘special circumstances’ were present, we would accept however that it was appropriate for her to do so and indeed to brief senior counsel.

86 We have taken account of the Bar Council’s submission that, because it was not notified of the grounds of challenge to the summons until just before the hearing, it had no opportunity to respond to this challenge by amending the summons. We would observe, however, that Mrs Archer’s application did foreshadow that the breadth of the summons would form the focus of her challenge to its validity.

87 We have given thought to whether, as submitted by Mr Blanch, any order made should be for a proportion of Mrs Archer’s costs only (he suggested 50%), because she was only partly successful. Our conclusion is however that, just as successful claimants in a ‘costs follow the event’ regime are not confined to a proportion of the costs incurred simply because their claim does not succeed in all respects, Mrs Archer should have all her costs because to a substantial degree she succeeded. The specific issues on which she failed – namely, the validity of clauses 1.3 and 1.7 and the issue of severance – did not occupy a significant proportion of the hearing before us.

Our orders on this application

88 For these reasons, we order that the Bar Council pay the costs, as agreed or assessed, of Mrs Archer’s application to set aside the summons addressed to her. The amount to be paid should include the costs of this application for an award of costs.