Council of the New South Wales Bar Association v Ghabrial (No. 2)

[2011] NSWADT 56

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Council of the New South Wales Bar Association v Ghabrial (No. 2) [2011] NSWADT 56
Hearing dates:	On the papers
Decision date:	21 March 2011
Before:	D Patten, Deputy President P Blacket SC, Judicial Member R Fitzgerald, Non-judicial Member
Decision:	Respondent's costs to be paid out of the Public Purpose Fund
Catchwords:	Costs - Existence of special circumstances
Legislation Cited:	Legal Profession Act 1987 Legal Profession Act 2004
Cases Cited:	NSW Bar Association v Tedeschi (No. 3) [2003] NSWADT 174
Category:	Costs
Parties:	Council of the New South Wales Bar Association (Applicant) Jehane Ghabrial (Respondent)
Representation:	J Giles (Applicant) P Morris SC (Respondent) Eakin McCaffery Cox (Applicant) Moray Agnew Solicitors (Respondent)
File Number(s):	102004

Reasons for decision

1. On 24 December last, we dismissed the application for a finding that the respondent was guilty of professional misconduct or unsatisfactory professional conduct and for consequential orders. We reserved to the parties the right to make submissions as to costs.

1. The respondent has submitted that an order for the payment of costs out of the Public Purpose Fund pursuant to s 566 of the Legal Profession Act 2004 (the Act) should be made in her favour. The applicant in written submissions resists the making of such an order and we have decided the matter on the papers.

1. It is unnecessary to repeat the facts and our findings on those facts which are set forth in our reasons published on 24 December 2010. Section 566 of the Act provides:

566 Costs

(1) The Tribunal must make orders requiring an Australian legal practitioner whom it has found to have engaged in unsatisfactory professional conduct or professional misconduct to pay costs (including costs of the Commissioner, a Council and the complainant), unless the Tribunal is satisfied that exceptional circumstances exist.

(2) The Tribunal may make orders requiring an Australian legal practitioner whom it has not found to have engaged in unsatisfactory professional conduct or professional misconduct to pay costs (including costs of the Commissioner, a Council and the complainant), if satisfied that:

(a) the sole or principal reason why the proceedings were commenced in the Tribunal was a failure of the practitioner to co-operate with the Commissioner or a Council, or

(b) the practitioner has contravened an order of the Tribunal made in the course of proceedings concerned, or

(c) there is some other reason warranting the making of an order in the particular circumstances.

(3) The Tribunal may make orders requiring payment of an Australian legal practitioner's costs from the Public Purpose Fund, but may do so only if satisfied that the practitioner did not engage in unsatisfactory professional conduct or professional misconduct and the Tribunal considers that special circumstances warrant the making of the orders. The Tribunal is to have regard to the length and complexity of the proceedings when making a determination under this subsection.

(4) The Tribunal may make orders requiring an Australian legal practitioner in respect of whom proceedings are pending before the Tribunal to pay costs on a interlocutory or interim basis.

(5) The Tribunal may make orders requiring a person to pay costs (including, as appropriate, the costs of the Commissioner, a Council, the complainant and the Australian legal practitioner against whom the complaint was made), if satisfied that:

(a) the person, whether before or during the proceedings, failed to produce or delayed in producing any document required or requested to be produced, and

(b) the failure or delay contributed to delay in commencing, conducting or concluding the proceedings in such a way as to warrant the making of the orders.

(6) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under Part 3.2.

(7) An order for costs may specify the terms on which costs must be paid.

Note. Section 82 of the Administrative Decisions Tribunal Act 1997 makes provision for the recovery of costs.

1. As we were satisfied that the respondent did not engage in unsatisfactory professional conduct or professional misconduct the first limb of s 566(3) was engaged. We must however also consider whether "special circumstances" warrant the making of an order for costs and we must have regard to the length and complexity of the proceedings.

1. As to the meaning of "special circumstances", we have been referred to a number of helpful authorities. In NSW Bar Association v Tedeschi (No. 3) [2003] NSWADT 174, a decision on the similarly worded s 171E of the Legal Profession Act 1987 , it was said that "there must be something which distinguishes the case where a legal practitioner has been found not guilty".

1. This case to a large extent depended on the construction to be given to an email sent by the respondent to her instructing solicitor in a matter in which she had been briefed on behalf of a man accused of a number of offences, and also to lawyers representing his co-accused. From the outset, she denied any improper intention or wrongdoing and propounded an innocent construction of the email whilst conceding that it was somewhat unhappily worded. This proposition was in effect upheld by us.

1. Her submissions as to costs claimed that it should have been evident to the applicant from the outset that there was no reasonable likelihood that the Tribunal would accept the interpretation of the email for which it contended in light of her experience, good standing in the profession and the availability of an innocent interpretation.

1. The submissions referred to the fact that the complaint was initiated by the applicant itself and not by a member of the public and that under threat of suspension the respondent agreed to continue practice under some quite onerous conditions.

1. The applicant contended that it was not obliged to accept the respondent's explanation when, in its submission, it was not consistent with an available construction of the email. It also submitted that at least in part the evidence of the respondent as to her innocent intention, which was accepted by the Tribunal, was given orally at the hearing and not by affidavit.

1. Notwithstanding the applicant's submissions, we are of the opinion that there was from the outset of the proceedings no reasonable likelihood that a finding of professional misconduct would be made. We think that in the circumstances (including that the document in question was an email rather than a formal advice and was sent only to other legal practitioners) it was so inherently unlikely that the respondent intended in effect to pervert the course of justice that her explanation should have been accepted. At most the matter should have been regarded as unsatisfactory professional conduct.

1. The fact that there was no reasonable prospect of the Tribunal making the very serious finding of professional misconduct in our opinion is capable of constituting a special circumstance within s 566(3).

1. We also have regard to the fact that under threat of suspension the respondent agreed to submit herself to and complied with a mentoring program yet was then faced with these proceedings. This seems to us to involve both double jeopardy and an element of oppression capable of constituting a special circumstance.

1. Taking into account that the proceedings were relatively short and did not involve complex issues, we are nevertheless persuaded that the matters we have identified do in the circumstances of this case constitute special circumstances and warrant the making of the order sought by the respondent.

1. Pursuant to s 566(3) of the Act, we make an order requiring payment of the respondent's costs from the Public Purpose Fund. We also order that those costs be as agreed or in default of agreement as assessed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.

Registrar

Decision last updated: 21 March 2011