New South Wales Bar Association v Bryson (No. 2)

[2003] NSWADT 167

CITATION:	New South Wales Bar Association v Bryson (No. 2) [2003] NSWADT 167
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the New South Wales Bar Association RESPONDENT John Henry Bryson
FILE NUMBER:	012022
HEARING DATES:	30/09/2002, 01/10/2002
SUBMISSIONS CLOSED:	05/29/2003
DATE OF DECISION:	07/14/2003
BEFORE:	Norton S SC - Judicial Member; Durbach A - Judicial Member; Mahon D - Member
APPLICATION:	Professional Misconduct - not of good fame and character
MATTER FOR DECISION:	Costs
LEGISLATION CITED:	Legal Profession Act 1987
CASES CITED:
REPRESENTATION:	APPLICANT A Blanch, solicitor RESPONDENT P Brereton SC, barrister
ORDERS:	Order that the barrister pay the applicant’s costs in a sum agreed between the parties, and in the absence of such agreement, costs to be assessed in accordance with the Legal Profession Act, 1987.

1 In this matter the Tribunal composed of Dr A Bennett SC, A Durbach and D Mahon gave judgment on 29 January 2003 finding the barrister guilty of professional misconduct within the meaning of Section 127(1)(b) of the Legal Profession Act 1987. The applicant sought in the information an order under Section 171E(1) of the Act that the barrister pay the costs of the application.

2 The Judicial Member of the original Tribunal, Dr A Bennett SC, made directions on 13 March 2003 as follows:

(1) Applicant to file and serve submissions within 7 days.

(2) Respondent to file and serve submissions in reply within a further 7 days.

3 Despite those directions submissions on behalf of the applicant were not received by the Tribunal until 23 April 2003 and those from the respondent were filed on 29 May 2003. Prior to the parties filing the said submissions the Judicial Member, Dr Annabelle Bennett SC was appointed to the Federal Court of Australia. By consent of the parties she was replaced as Judicial Member by Sharron Norton SC.

4 The power to order costs in proceedings in the legal services division of the Administrative Decisions Tribunal is contained in Section 171E of the Legal Profession Act. That section provides:

(1) The Tribunal may make orders requiring a legal practitioner or interstate legal practitioner whom it has found guilty of unsatisfactory professional conduct or professional misconduct (or any solicitor corporation) to pay costs (including the costs of the Commissioner, the appropriate counsel and the complainant).

(2) If, after it has completed a hearing relating to a complaint against a legal practitioner or interstate 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 special circumstances so warrant) order payment from the public purpose fund to the practitioner of the legal practitioners costs.

(3) An order for costs:

(a) Maybe 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.
5 As the barrister was found guilty of professional misconduct special circumstances are not a pre-requisite to any order being made for costs.

6 The applicant submitted that the provisions of sub-section (2) demonstrated a clear intention that the legal practitioner who is found guilty of professional misconduct ought to be ordered to pay the costs and that this is in accordance with the general rule adopted by courts and tribunals that in the absence of a legislative provision to the contrary and or special circumstances costs should follow the event. The applicant submitted that there were no circumstances which would warrant a departure from the general rule that costs follow the event and drew attention to the fact that the applicant was carrying out a statutory function. It was submitted that the appropriate order would be that costs be paid by the legal practitioner as agreed between the parties and in the absence of agreement to be assessed in accordance with the Legal Profession Act.

7 The respondent submitted that the Tribunal has a discretion and that there is no clear intention in the act that cost should follow the event. It was further submitted that it was relevant that the informant did not indicate it was not seeking the barrister's removal from the role until after the hearing had commenced, orders made by the Tribunal were at the lower end of the scale in Section 171(C) and that in recent years the barrister had suffered considerable hardship.

8 The information alleged that the barrister was guilty of professional misconduct on three grounds (judgment paragraph 1). All three grounds were found to be established (judgment paragraph 49). The Tribunal found that the barrister's evidence as to what he did with the firearm in the men’s toilet was "to a degree unsatisfactory" (judgment paragraph 21). The submissions of the barrister do not specify the hardship he is said to have suffered in recent years but the Tribunal assumes they are similar to the matters taken into account as mitigating factors in the primary judgment.

9 The Tribunal accepts that the power to order costs is a discretionary one. The Legal Profession Act imposes a statutory obligation upon the applicant to bring proceedings against a legal practitioner where it is satisfied that there is a reasonable likelihood of a finding of professional misconduct or unsatisfactory professional conduct. The provisions in Section 171E(2) may reflect this statutory obligation.

10 Taking all of the above matters into account and bearing in mind the public role of the applicant, we consider the circumstances of this case justify the making of the costs order sought. We consider that the proper basis for the assessment of costs in this case would be a party/party basis.

11 Accordingly we order that:

Costs be paid by the legal practitioner in a sum agreed between the parties and in the absence of agreement costs to be assessed in accordance with Part 11 of the Legal Profession Act, 1987.