New South Wales Bar Association v Osei [2009]

[2009] NSWADT 196

CITATION:	New South Wales Bar Association v Osei [2009] [2009] NSWADT 196
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the New South Wales Bar Association RESPONDENT Kofi Ameyaw Osei
FILE NUMBER:	042010, 042039, 042040
HEARING DATES:	26 June 2009
SUBMISSIONS CLOSED:	26 June 2009
DATE OF DECISION:	28 July 2009
BEFORE:	Blacket P SC - Judical Member; Wright R, SC - Judical Member; Hayes E - Non-Judicial Member
CATCHWORDS:	Barrister – Disciplinary Action - Costs
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 (NSW) Interpretation Act 1987 (NSW) Legal Profession Act 1987 (NSW) Legal Profession Act 2004 (NSW) Legal Profession Amendment Act 1998 (NSW)
CASES CITED:	New South Wales Bar Association v Osei [2006] NSWADT 35 The Council of the New South Wales Bar Association v Osei [2008] NSWADT 7 New South Wales Bar Association v Osei (No 2) [2008] NSWADT 324 Cripps v G&M Dawson Pty Ltd [2006] NSWCA 81 Building Professionals Board v Ball (No.2) (GD) [2009] NSWADTAP 8 NSW Bar Association v Tedeschi (No.3) [2003] NSWADT 174
REPRESENTATION:	APPLICANT P Skinner, Barrister RESPONDENT T Williams, Solicitor
ORDERS:	1 Each of the applications for costs in proceedings 042010, 042039 and 042040 be dismissed 2 There be no order for costs on any of the applications.

1 The Tribunal has before it an application seeking costs under s.171E of the Legal Profession Act 1987 (NSW) (the ‘1987 Act’). The application relates to three proceedings with Tribunal file numbers 042010, 042139 and 042040 respectively. The application for costs is brought by the Respondent in each proceeding, Mr Kofi Ameyaw Osei (the ‘Barrister’).

2 The history of these proceedings is somewhat convoluted and there have already been three decisions by the Tribunal: New South Wales Bar Association v Osei [2006] NSWADT 35, The Council of the New South Wales Bar Association v Osei [2008] NSWADT 7 and New South Wales Bar Association v Osei (No 2) [2008] NSWADT 324. Reference should be made to those decisions for a fuller statement of the facts and circumstances. Nonetheless, for present purposes, the history may be summarised as set out below.

3 The Barrister was admitted to the Bar in New South Wales in 1992 and held a New South Wales practicing certificate from May 1992 until June 2004. In addition, from 1992, the Barrister was also a director of Caprock International Pty Limited which, among other things, conducted an immigration consultancy business. Both the Barrister and his wife were, at the relevant times, registered migration agents under the Migration Act 1958 (Cth).

4 In the years 2000 and 2001, Caprock International Pty Limited was retained by a couple who, for the purposes of these reasons for decision, shall be referred to as Mr & Mrs B to assist Mr & Mrs B and their family with visa applications under the Migration Act.

5 In mid 2001, the Bs’ application for protection visas was refused and an application for review by the Refugee Review Tribunal (‘RRT’) of that refusal to grant protection visas was lodged on the Bs’ behalf. The application for review came on for hearing in September 2001 and the Barrister appeared in his capacity as a registered migration agent for and with Mr B at that hearing.

6 In February 2002, Mr B made a complaint to the Legal Services Commissioner about the conduct of the Barrister. On 12 April 2002, the Legal Services Commissioner made five complaints against the Barrister under s.134(2) of the Legal Profession Act 1987 and referred them to the Bar Association for investigation.

7 As part of the Bar Association’s investigation, it sought information from the Barrister concerning Mr B’s complaints. The Barrister responded in writing including by a letter dated 28 June 2002.

8 By the end of 2003, the Bar Association had completed its investigation.

9 On 12 March 2004, the Council of the Bar Association of New South Wales (the ‘Bar Association’) filed information 042010 in the Tribunal. In that information, the Bar Association alleged that the practitioner was guilty of professional misconduct on two grounds:

a. The Barrister knowingly and deliberately misled Mr & Mrs B when he advised them in February 2001 that investment in an organisation, Lloyds International College, in which the Barrister held an interest, would assure Mr & Mrs B of success in their migration applications.

b. The Barrister improperly induced Mr & Mrs B in February 2001 to invest $150,000.00 in 150,000 shares in Caprock International Pty Limited, a company in which the practitioner and his wife held a controlling interest.

10 It was not in dispute that this information and the Bar Association’s affidavit in support were served on the Barrister. The Barrister filed a reply on 7 May 2004 and swore an affidavit dated 6 May 2004 in that proceeding. There were a number of direction hearings and on 7 July 2004, proceeding 042010 was set down for hearing on 14, 15 and 16 December 2004.

11 After that time, the Bar Association served a further affidavit on, and gave notice to, the Barrister’s Solicitor of the intended evidence of witnesses whom it proposed to call to give oral evidence at the hearing.

12 In late November 2004, the parties agreed to the vacation of the hearing dates in December 2004 and the Tribunal fixed new hearing dates from 15-19 August 2005. The vacation and extended hearing were sought because of the proposed oral evidence and because a number of additional proceedings (in respect of which informations were to be filed soon after) were to be heard at that same time.

13 On 24 December 2004, Informations 042039 and 042040 were filed in the Tribunal by the Bar Association.

14 In Information 042039, the Bar Association alleged that the Barrister provided two misleading and false responses to the Bar Association in his letter dated 28 June 2002 and, by doing so, was guilty of professional misconduct in respect of each response.

15 In Information 042040, it was alleged that the Barrister was guilty of unsatisfactory professional conduct by failing to advance and protect the interests of his clients, Mr & Mrs B, when the Barrister appeared on their behalf in the RRT on 10 September 2001.

16 It appears that Informations 042039 and 042040, together with the relevant supporting affidavits, were delivered by hand to the Barrister’s then solicitor. There was, however, no evidence before us that the solicitor had instructions to accept service of the two new informations.

17 Nonetheless, on 16 February 2005, there was a directions hearing before his Honour the President in proceedings 042039 and 042040. The solicitor for the Barrister appeared at that time and advised that he was having trouble obtaining instructions from his client. On that occasion, orders were made for the filing and service of replies and evidence in proceedings 042039 and 042040 and they were listed for hearing together with proceeding 042010 commencing on 15 August 2005.

18 On 8 April 2005, the solicitor who had formerly acted for the Barrister wrote to the Tribunal advising that he no longer acted for the Barrister in any of the three proceedings and requested that his name be removed from the Tribunal’s contact details.

19 On 19 April 2005, the Barrister, who by this time was now a member of the Parliament of the Republic of Ghana and had been appointed Deputy Minister for Trade & Industry, wrote to the Tribunal. His letter was headed:

Re: NSW Bar Association v Myself

No: 042010

20 In that letter, he referred to the proceeding in the Tribunal as arising out of certain alleged incidents which allegedly occurred:

not when I was practicing as a Barrister, but rather when I was acting in my role as a Registered Migration Agent pursuant to the Commonwealth Migration Act.

21 He noted that the complaints were investigated and determined by the Migration Agent Registration Authority (‘MARA’) and all complaints had been dismissed. He also in effect submitted that the determination by MARA should be the end of the matter.

22 Further, noting the proceeding by the Bar Association in the Tribunal, he drew attention to the fact that he did not hold a practicing certificate in New South Wales or anywhere else in Australia and that he did not propose to apply for one either then or at any time in the future. He offered to give undertakings that he would not, at that time or in the future, seek to practise as a barrister, solicitor or legal practitioner in New South Wales or anywhere else within Australia. In the final paragraph, the letter said:

If this Tribunal, or the Bar Association, wishes to explore the finalisation of these proceedings along the lines of the undertakings outlined above, would they be so kind to communicate with the Ghana Consulate-General, Suite 1404, 370 Pitt Street, Sydney; Telephone [phone].

23 From the notation under the Barrister’s signature, it appears that this letter was copied to the Bar Association and the Legal Services Commissioner.

24 A directions hearing in all three proceedings took place before the Tribunal constituted by Mr Officer QC on 19 May 2005. On that occasion, the problems with service of the later two Informations (042039 and 042040) were addressed. Mr Officer in effect held that all the relevant documents had been served on the Barrister in accordance with Rule 29 and, to the extent to which that view may be wrong, he dispensed with compliance with that rule in relation to any of those documents on the basis that no reasonable hardship or prejudice had been occasioned to the Barrister by serving the documentation upon his legal representative at the time. This was said to be particularly so, as the legal representative had at no stage indicated that he did not have authority to accept service and had acted after service of those additional documents as if he did have authority to accept service of them. He had been present when it was decided that all of the proceedings should be heard together. Accordingly, Mr Officer QC listed all three proceedings for hearing to commence on 15 August 2005.

25 During July 2005, the Bar Association sent various notices concerning the evidence to be relied upon by the Bar Association at the hearing to the address given in the Barrister’s letter of 19 April 2005 and to an address in Ghana set out on the Parliament of Ghana’s website as the Barrister’s postal address. On 1 August 2005, a further affidavit was sent to the same two addresses.

26 For three days between 15-18 August 2005, the Tribunal constituted by Mr Officer QC, Ms Robinson QC and Ms Mara heard the proceedings, in the absence of the Barrister. At the end of the hearing, the Tribunal reserved its decision and directed the Bar Association to put on written submissions by 5 September 2005. The time for filing the submissions was extended to 12 September 2005 and on that date, the Bar Association not only filed the submissions but also sent a copy to the Barrister at his address in Ghana disclosed on the Parliament of Ghana’s website.

27 On 3 February 2006, the Tribunal handed down its decisions in each of the three proceedings and published its reasons – NSW Bar Association v Osei [2006] NSWADT 35. The Tribunal’s orders were as follows:

1. Information 042010 is dismissed.

2. The Respondent is guilty of professional misconduct in providing false and misleading responses to the Bar Council by letter dated 28 June 2002 as particularised in Grounds 1 and 2 of Information 042039.

3. The Respondent is guilty of unsatisfactory professional conduct in failing to advance and protect the interests of his client when he appeared for them in the RRT on 10 September 2001 as particularised in Information 042040.

4. The matters 042039 and 042040 are listed on Thursday 2 Mach 2006 at 9:30am for directions in relation to penalty.

28 No order and no application in relation to costs were made in proceeding 042010, not surprisingly as the Barrister was not present nor was he aware of the decision. As to proceedings 042039 and 042040, they still had not been finally disposed of.

29 The Barrister became aware of the Tribunal’s decision in March 2006 when his attention was drawn to a newsletter from the NSW Bar Association which contained a publication listing him as having been found by the Tribunal to have been guilty of professional misconduct and unsatisfactory professional conduct. He had heard nothing further relating to the proceedings since his letter of 19 April 2005 to the Tribunal.

30 On 8 March 2006, the Barrister contacted his present solicitor and gave him instructions to act on his behalf.

31 On 5 May 2006, at a directions hearing before Mr Officer QC in relation to Informations 042039 and 042040, the Tribunal directed, amongst other things:

That any application by the Respondent to the Tribunal to reopen the hearing, and any affidavits in support of such an application, are to be filed and served on or before 16 June 2006.

32 Such an application was filed and, after a number of directions hearings and the reconstitution of the Tribunal by consent under s.79(1) of the Administrative Decisions Tribunal Act because of the unavailability of Mr Officer QC, the Barrister’s application to reopen proceedings 042039 and 042040 was heard on 20 April 2007 before the Tribunal constituted by Ms W Robinson QC, Ms S Norton SC and Ms Mara. The Tribunal handed down its decision on this application on 14 January 2008 – Council of theNew South Wales Bar Association v Osei [2008] NSWADT 7.

33 In that decision, the Tribunal held:

23. Ultimately, the Tribunal must resolve the appropriate course from the two competing views of the events which occurred relating to these proceedings between April 2005 and June 2006. On the one hand, Mr Osei, well aware that the first disciplinary proceeding based on allegations of the most serious nature alleging professional misconduct in the handling of the [Bs’] affairs were on foot before the Tribunal and actively being pursued by the Bar Council, endeavoured to forestall those proceedings. First, he made an offer not to seek to practise in the jurisdiction then, without an indication of concern for the outcome of this approach, he proceeded to sever the means of contact by which he could be appropriately informed of the progress of that proceeding and any consequences thereof, including the date for hearing.

24. Mr Osei acknowledges this in the affidavit filed in June 2006, in which he admits his failure to provide a correspondence address. The second and third Informations were served on his solicitor while he was still actively being represented by that solicitor in the first proceeding. Mr Osei thereafter absented himself from the hearing at which evidence was heard concerning all three matters then on foot. Seeking now to rely on the result of his own remiss conduct in this regard to reverse the detrimental consequences of the ongoing proceedings is a deeply unattractive and unmeritorious proposition.

25. On the other hand, his solicitor has promptly notified the Tribunal he had no instructions to act in relation to the two later informations. Given the inevitable inability and consequent failure by the Bar Council to provide advance notice of the supporting material upon which the adverse findings of fact were subsequently made (albeit that the difficulty in the means of communication had been created by Mr Osei), together with Mr Osei’s sworn, unchallenged assertions that he remained unaware of those later proceedings, the Tribunal is left with an acute sense of unease and discomfort that Mr Osei may have been denied procedural fairness in the later matters.

26. Given the fundamental nature of those qualms concerning the failure of service in 042039 and 042040, the serious nature of the proceedings and the potential for adverse consequences to Mr Osei’s ability to engage in future legal practice in this State and elsewhere, the Tribunal accepts that the prudent course is to consider acceding to the application now urged by both parties, irrespective of the concerns articulated to the contrary.

34 As a result, the Tribunal on 14 January 2008 ordered as follows:

1. The decision of the Tribunal made 3 February 2006 on informations 042039 and 042040 be vacated pending further hearing and that the hearing of those informations be reopened.

2. The Respondent to the principal proceeding have leave to file Replies in the proceedings within 28 days.

3. Costs reserved.

35 Thus, at least in relation to the application to reopen the hearings in proceedings 042039 and 042040, there was an outstanding question of costs which would be required to be determined at some future time.

36 Again, after a number of directions hearings and the filing of further evidence, proceedings 042039 and 042040 came on for hearing before the Tribunal as presently constituted. The hearing lasted for 3 days from 17-19 November 2008. The decision of the Tribunal was handed down on 5 December 2008 – NSW Bar Association v Osei (No.2) [2008] NSWADT 324. On that occasion, the Tribunal ordered:

1. Each of Informations 042039 and 042040 be dismissed.

2. The Respondent have leave to make any application in relation to the costs of these proceedings within 14 days of the date of these orders.

37 In compliance with the last of the orders referred to, the application for costs presently before the Tribunal was filed on 15 December 2008.

38 The Tribunal does have a statutory power to award costs under s.88 of the Administrative Decisions Tribunal Act 1997 (NSW) which provides:

(1) Each party to proceedings before the Tribunal is to bear the party’s own costs in the proceedings, except as provided by this section.

(1A) 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 it is fair to do so having regard to the following:

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or

(ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or

(iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or

(iv) causing an adjournment, or

(v) attempting to deceive another party or the Tribunal, or

(vi) vexatiously conducting 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) any other matter that the Tribunal considers relevant.

(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 a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 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.

39 By virtue of cl.43(2)(i) of Schedule 5 to the Administrative Decisions Tribunal Act, this amended form of s.88 is the relevant legislation in the present proceedings, notwithstanding that they were commenced and, in some cases, heard prior to the commencement of the relevant amendments. Nonetheless, s.88 does not itself apply in the present proceedings because of its express provisions. Section 88(1A) establishes that the Tribunal’s power to award costs is “subject to … any other Act” and this includes the 1987 Act.

40 Further, s.88(3) effectively renders the enactment under which the Tribunal makes “an original decision” (see ss.7 and 37 of the Administrative Decisions Tribunal Act) paramount in relation to the power to award costs. For the reasons given in [4] of the Tribunal’s decision of 5 December 2008 – NSW Bar Association v Osei (No.2) [2008] NSWADT 324, the Tribunal has jurisdiction to make the original decisions in each of the present proceedings, and all relevant aspects of each of the proceedings falls to be considered, under the 1987 Act.

41 Thus, it is necessary to consider the power to award costs found in the 1987 Act. Section 171E of that Act provides:

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 Counsel 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.

42 Given the specific and limited nature of the power conferred by s. 171E, there does not appear to be any scope for the operation of s. 88 of the Administrative Decisions Tribunal Act in addition.

43 As the Tribunal has completed hearings relating to complaints against the Barrister in each of proceedings 042010, 042039 and 042040 and has concluded that the Barrister was not guilty of unsatisfactory professional conduct or professional misconduct in any of those proceedings, the Tribunal’s power to award costs under s.171E(2) is engaged, subject to the jurisdictional question raised by the Bar Association in relation to proceeding 042010, which we shall address later in these reasons.

44 It should be noted that under the 1987 Act the Tribunal does not have a general power to award costs. The Tribunal’s only relevant power is found in s.171E(2) and is limited to ordering payment to the practitioner of the legal practitioner’s costs ‘from the Public Purpose Fund’.

45 The Public Purpose Fund was established by the Legal Profession Amendment Act 1998 (NSW), which amended the 1987 Act by inserting s.69A to s.69K and making consequential amendments. In effect, the Public Purpose Fund replaced what was known as the ‘Statutory Interest Account’. The Public Purpose Fund is, in general terms, made up of interest that accrues on solicitor’s trust accounts and such other amounts as are required to be paid into the Fund – see s.69B of the 1987 Act.

46 In addition to costs ordered to be paid under s.171E(2), payments could be made from the Public Purpose Fund for meeting the cost and expenses of the Councils of the Bar Association of New South Wales and of the Law Society of New South Wales in exercising their various functions including in relation to practicing certificates and disciplinary matters – see s.69G of the 1987 Act.

47 Further, under s.69I amounts could be paid from the Public Purpose Fund in order to supplement the Legal Aid Fund, the Fidelity Fund and the Law Foundation Fund and for the purposes of furthering legal education, law reform and similar matters.

48 The Public Purpose Fund, established under the 1987 Act, was continued when the Legal Profession Act 2004 (NSW) (the ‘2004 Act’) was enacted – see Clause 23 of Schedule 9 to the 2004 Act, which provides that the Public Purpose Fund as established under the 1987 Act is taken to be established under the 2004 Act. Under s.189(1)(c) of the 2004 Act it is provided that the Trustees of the Fund are to pay from the Public Purpose Fund any amounts required to be paid in accordance with an order of the Tribunal under s.566(3) of the 2004 Act. Section 566(3) corresponds in large measure with s.171E of the 1987 Act.

49 As noted above, given that each of the proceedings 042010, 0142039 and 042040 was instituted in 2004 prior to the commencement of the 2004 Act in 2005, each of those matters is to be dealt with as if the 2004 Act had not been enacted. This is the result of the operation of Clause 15 of Schedule 9 to the 2004 Act. Accordingly, we consider that the Tribunal has power under s.171E(2) of the 1987 Act to order the payment of the Barrister’s costs from the Public Purpose Fund in each of proceedings 042010, 042039 and 042040, subject to the jurisdictional issue.

50 The discretion to order the payment of the Respondent’s costs from the Public Purpose Fund under s.171E(2) is not, however, unconstrained. The Tribunal can do so ‘only if it considers that special circumstances so warrant’.

51 The meaning of the expression ‘special circumstances’ has been considered by the Court of Appeal in the related context of s.88 of the Administrative Decisions Tribunal Act 1977 (NSW) which until recently provided that:

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.

52 In Cripps v G&M Dawson Pty Ltd [2006] NSWCA 81 at [60] in relation to the words ‘special circumstances’ in s.88 it was held by Santow JA (Mason P and Brownie AJA agreeing) as follows:

For this purposes, it suffices that the circumstances are out of the ordinary. They do not have to be extraordinary or exceptional. While a finding of ‘serious unfairness’ is not pre-requisite to determining that there are special circumstances, it is nonetheless a highly relevant consideration.

53 Furthermore, the categories of ‘special circumstances’ are not closed and, in particular, are not limited to those identified in the case law or in the Tribunal’s practice note on costs (Practice Note No.12, October 2006) – Building Professionals Board v Ball (No.2) (GD) [2009] NSWADTAP 8 at [58].

54 A useful statement of the position in relation to s.171E is found in NSW Bar Association v Tedeschi (No.3) [2003] NSWADT 174 where the Tribunal held:

46. The Tribunal is of the view that before an order for costs can be made pursuant to s.171E of the Legal Profession Act 1987, there must be something which distinguishes the case from other cases where a legal practitioner has been found not guilty. There must be something that sets the case apart from the usual or ordinary case where a practitioner has been found not guilty …. However, the Tribunal is also of the view that the distinguishing feature does not have to be exceptional …. All that is required is that the distinguishing circumstances must be of such significance, and thus special, that the Tribunal considers that they warrant an order being made for payment from the Public Purpose Fund to the practitioner of the practitioner’s costs. It is not necessary that each circumstance be special if a combination of circumstances amounts to special circumstances.

55 It is not, however, enough that the circumstances are ‘special’. Those circumstances must, under s.171E(2), also ‘warrant’ an order for costs – Building Professionals Board v Ball (No.2) (GD) [2009] NSWADTAP 8 at [58].

56 Thus, circumstances must first be identified which render the case different from the usual or ordinary case in which a practitioner is found not guilty of professional misconduct or unsatisfactory professional conduct. Secondly, those ‘special circumstances’ must also tell in the practitioner’s favour so that it would be appropriate for the Public Purpose Fund and not the practitioner to bear the costs of his or her defence. Further, the costs that might be ordered by the Tribunal to be paid under s.171E are not specified in any greater detail than by use of the word ‘costs’. Nonetheless, in the absence of any contrary indication we take it as clear that the costs referred to are the costs of or incidental to the proceeding before the Tribunal.

57 In considering whether there are special circumstances that warrant an order that the Barrister’s costs be paid out of the Public Purpose Fund, it will be convenient to deal with proceeding 042010 separately from proceedings 042039 and 042040.

Jurisdiction

58 As noted above, the Bar Association has raised the question whether the Tribunal has jurisdiction to hear the application for costs in relation to proceeding 042010. The question arises out of the fact that the only proceedings which were before, and heard on 17 to 19 November 2008 by, the Tribunal as presently constituted and the only proceedings the subject of the Tribunal’s decision and orders on 5 December 2008 (NSW Bar Association v Osei (No.2) [2008] NSWADT 324) were proceedings 042039 and 042040. The leave to make an application for costs granted by the Tribunal on 5 December 2008 was limited to “these proceedings”, namely proceedings 042039 and 042040.

59 Proceeding 042010 was heard and the information was dismissed by a differently constituted Tribunal. Unfortunately, as a result of the death of Mr Officer QC the Tribunal cannot now be constituted with the membership it had for the hearing of proceeding 042010.

60 It appears to us that having completed a hearing relating to proceeding 042010 and having been satisfied that the practitioner was not guilty of unsatisfactory professional conduct or professional misconduct, the Tribunal has power to make an order under s.171E(2). Thus, there is no lack of power. Rather, the jurisdictional point raised by Bar Association goes to two different but related questions:

(a) Can the power to order costs in proceeding 042010 be exercised by the Tribunal as presently constituted? or Can it only be exercised by the Tribunal as originally constituted to hear that matter or as expressly reconstituted under s.79 of the Administrative Decisions Tribunal Act ?

(b) If the Tribunal as presently constituted can exercise the power, has the power to order costs of the hearing in proceeding 042010 been validly invoked by the Barrister in this case?

61 As to the first question, it is important to bear in mind that the power under s.171E(2) is conferred on the Tribunal by the words ‘the Tribunal may’. The power is not said to be conferred on the Tribunal as particularly constituted at a certain time or for a particular purpose. To construe the conferral of power as limited to the Tribunal constituted in the same way as the Tribunal which heard the matter (or if necessary reconstituted under s. 79) would be to read into the subsection words that are not there. The subsection can operate entirely satisfactorily if the power is conferred on the Tribunal generally. There is no absurdity or impossibility which would require a construction at odds with the express words of the subsection. Thus, it should not be concluded that the power could only be exercised by the Tribunal as originally constituted to hear the matter.

62 Further, consideration of reconstitution under s.79 is not apposite here. Section 79 deals with the situation where a member or members of the Tribunal becomes unavailable or ceases to be a member ‘after the consideration of a matter by the Tribunal has commenced’ and ‘before the matter is determined’ – s.79(1). Thus, the section only applies where a hearing of a matter has commenced but has not been concluded by the making of appropriate orders. This is confirmed by the heading to the section: ‘Reconstitution of Tribunal during hearing’ (use of the heading to confirm this meaning is permitted under s.34(1)(a) of the Interpretation Act 1987 (NSW)). The ‘matter’ brought before the Tribunal as originally constituted in proceeding 042010 was determined by Order 1 made by the Tribunal on 3 February 2006. No application for costs in proceeding 042010 could have been or was made prior to the completion of that hearing relating to the information in the light of the express terms of s.171E(2) which provides that the power arises ‘after it [the Tribunal] has completed a hearing relating to a complaint against a legal practitioner’ and ‘the Tribunal is satisfied that the practitioner is not guilty of unsatisfactory professional conduct or professional misconduct’. Thus, despite some comments at the hearing of the re-opening application referred to below, prior to 15 December 2008 there was no costs application in proceeding 042010 at all and certainly not one the hearing of which had commenced but not been determined. In this regard, there was no scope for the operation of s.79.

63 Moreover, in relation to the ‘matter’ constituted by the application for costs in proceeding 042010 made on 15 December 2008, no hearing of that matter had commenced and not been determined so as to engage the power of reconstitution under s.79 prior to the Tribunal as presently constituted embarking upon the hearing in relation to costs in each of proceedings 042010, 042039 and 042040. Thus, no issue relating to reconstitution of the Tribunal under s.79 can arise.

64 For these reasons, we hold that the power to order costs in proceeding 042010 can be exercised by the Tribunal as presently constituted. This is not to say that in many instances it will not be appropriate and convenient to have a costs application under s.171E(2) heard by the Tribunal constituted in the same manner as the Tribunal which heard the substantive application. Nonetheless, it is not necessary that the Tribunal hearing such a costs application should be constituted in the same way as for the original hearing.

65 We now turn to the question of whether the Tribunal’s power to order costs in proceeding 042010 has been validly invoked.

66 The Barrister’s application for costs was made by way of an ADT form headed:

APPLICATION FOR COSTS

Legal Profession Act 2004

67 Under the heading ‘Legal Services Division’ and next to the words ‘File number’ are file numbers ‘042101, 042039, 042040’. The ‘Orders Sought’ are:

1. Costs in favour of the respondent in respect of each of the proceedings

2. Such further or other orders as the Tribunal sees fit

and the ground is particularised as follows:

Ground 1

Particulars 1.1

In respect of proceedings 042010 the Tribunal has found that the Practitioner did not engage in unsatisfactory professional conduct or professional misconduct and special circumstances exist warranting the making of costs orders.

Particulars 1.2

With respect to each of proceedings 042039 and 042040 in relation to the determination of the substantive issues the Tribunal has found that the Practitioner did not engage in unsatisfactory professional conduct or professional misconduct and special circumstances exist warranting the making of costs orders.

68 Despite not filing an application in each proceeding separately, it is clear that the Barrister has sought to invoke the Tribunal’s power under s.171E(2) in relation to all three proceedings. Given the requirement under s.73(3) of the Administrative Decisions Tribunal Act that we should act with as little formality as the circumstances of the case permit and according to the substantial merits of the case without regard to technicalities or legal forms, we find that the Tribunal’s power to make orders under s.171E(2) in respect of proceeding 042010 has been validly invoked, notwithstanding any deficiencies in form. The Tribunal as presently constituted has been allocated all 3 applications for costs to hear and determine and we propose to do so.

69 Accordingly, we reject the Bar Association’s submission that there has been no conferral of jurisdiction upon the Tribunal as presently constituted to make any determination at all in respect of proceeding 042010 including in respect of costs.

Proceeding No. 042010

70 Unlike the other two proceedings, there was only one hearing in proceeding 042010. After the hearing in August 2005 at which the Barrister was neither present nor represented, the Tribunal dismissed information 042010 when it published it reasons and decision on 3 February 2006.

71 The Barrister’s submissions as to what constituted the ‘special circumstances’ that would warrant a costs order in his favour in this matter may be summarised for present purposes as follows:

(a) Both grounds in Information 042010 were dismissed by the Tribunal even though the hearing proceeded ex parte, without the Barrister being present or represented or making submissions.

(b) The Bar Association did not comply adequately or at all with the requirements of s.155 of the 1987 Act before instituting proceedings.

(c) The Bar Association did not file or serve any affidavit by Mr or Mrs B so as to comply with what was said to be the usual practice in the Tribunal in relation to evidence in chief.

72 In so far as the additional matters relied upon as ‘special circumstances’ relate both to proceeding 042010 and proceedings 042039 and 042040, they are addressed below in relation to the latter two proceedings.

73 As to the first ‘special circumstance’ identified, the fact that the information alleging two grounds of professional misconduct was dismissed after a hearing at which the Barrister was not present or represented may well be characterised as a circumstance with is different from the usual or ordinary case in which a legal practitioner is held not guilty. Thus, the Barrister’s success even though he was not present or represented may amount to ‘special circumstances’. In this case, however, the second element of the test, whether the special circumstances ‘warrant’ a costs order under s.171E(2), is of greater importance.

74 It is relevant to note that, as the Barrister was not represented at the hearing, he will have incurred no costs in that regard. Thus, a costs order would not be appropriate in respect of the hearing.

75 If other costs were incurred, such as the costs of taking instructions, preparing and filing a reply, attending directions hearings or preparing for the hearing, it is not immediately obvious why the fact that the Barrister was not represented at the hearing would warrant these costs being paid from the Public Purpose Fund. Additional circumstances would normally be required before a s.171E(2) order would be warranted. For example, if the Barrister’s non-appearance was the fault of the Tribunal or the Bar Association or if the case was so hopeless that it should never have been brought, this might justify such a costs order, depending on the circumstances.

76 In the present case, proceeding 042010 was set down for hearing in August 2005 on 1 December 2004. The Barrister’s evidence was that his solicitor ceased to act for him in April 2005 and that he was not aware of the August 2005 hearing dates at all until March 2006. He frankly acknowledged that he was remiss in failing to notify the Tribunal or the solicitors acting for the Bar Association of his address in Ghana to which correspondence could be directed. The Bar Association did send documents to him by post at the address of the Ghanaian Consul-General in Sydney referred to in the Barrister’s letter to the Tribunal of 19 April 2005 and at the address given for the Barrister on the Parliament of Ghana’s website prior to the hearing. These were apparently not received by the Barrister. In all the circumstances, the Barrister’s not being represented at the hearing cannot be attributed to any fault on the part of the Tribunal or the Bar Association. The responsibility appears to lie with the Barrister or those acting for him. These circumstances provide no substantial basis for awarding costs in his favour.

77 Further, on a fair reading of the Tribunal’s decision of 3 February 2006 - New South Wales Bar Association v Osei [2006] NSWADT 35 at for example [36], [58], [60], [64], [77] – [86], [117], [126], [130] - [144] and [154] – [162], it cannot be concluded that the case in proceeding 042010 put forward by the Bar Association to the Tribunal was devoid of reasonable prospects of success or so hopeless that it should never have been brought.

78 Accordingly, the first ‘special circumstance’ identified by the Barrister does not warrant an order in his favour under s.171E(2) in respect of matter 042010.

79 As to the second ‘special circumstance’ raised by the Barrister, it was submitted that if the Bar Association had properly considered the nature and effect of the evidence concerning this matter as it was required to do under s.155 of the 1987 Act, it could not properly have been satisfied that there was a reasonable likelihood that the Barrister would be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct. The fact that the information had been dismissed by the Tribunal after an uncontested hearing was relied upon as supporting this submission.

80 Once again, on a fair reading of the Tribunal’s reasons for decision of 3 February 2006 and especially the paragraphs referred to above, we do not consider that this submission is made out in the circumstances. The Tribunal relied upon documentation which had been before the Bar Association. Further, the Tribunal did not reject all of Mr and Mrs B’s evidence but relied upon significant portions of it. Although at [154] it was acknowledged that the Tribunal’s finding was contrary to some of the evidence and assertions, in complaints, of Mr and Mrs B, it was not suggested that their evidence should be rejected in its entirety. In addition, at [160] and [161] for example the Tribunal observed that the Barrister’s conduct ‘may be condemned and worthy of severe censure” but did not, for a number of reasons set out in the paragraphs referred to, amount to professional misconduct. The Tribunal did not regard the conclusion as obvious; indeed the Tribunal prefaced it conclusion with the words ‘while the task is not easy’. The Tribunal in its reasoning was not saying, nor does it following from what it said, that a contrary view was not open on the evidence or that the case was always and obviously doomed to fail. This being the case and the Bar Association having resolved to institute proceedings on material which formed a substantial subset of what was before the Tribunal, it should not be concluded that the Bar Association did not perform its functions under s.155 adequately or at all. Nor would we conclude that if the Bar Association had properly performed its functions it would not have resolved to institute proceedings 042010.

81 Further in amplification of this ground, it was submitted in effect that the evidence of Mr B (and by implication Mrs B as well) was so unreliable given his previous conduct in making false statements and swearing falsehoods that it was obvious that the Bar Association should not have relied upon the Bs’ testimony as a basis for reaching the required satisfaction. In this regard, the Barrister relied upon the decision of the Legal Profession Disciplinary Tribunal in In the Matter of Mark Phillip Symonds (1995) LPD R 10.

82 The present case it distinguishable from the Symonds decision in that in Symonds the Law Society offered no evidence before the Tribunal and the principal material it had filed in anticipation of the hearing was a statutory declaration of an officer of the Law Society to which was annexed a copy of an affidavit (apparently unread) by a third party filed in Family Court proceedings. In addition, in that case, the Law Society’s conduct was described as “inconsistent” as the third party whose Family Court affidavit was apparently to be relied upon was also being prosecuted by the Law Society which was alleging that the third party was a person upon whom one could not rely and who was not a person who told the truth. This is quite different from the present case.

83 In any event, this submission is inconsistent with what occurred in the Tribunal. It is obvious from the reasons for decision of 3 February 2006 that the Tribunal did accept significant portions of the evidence of Mr and Mrs B including material which was contrary to the material provided by the Barrister. It would be curious then if the Bar Association could be legitimately criticised for relying on the evidence of Mr and Mrs B in reaching its decision whether to resolve to institute proceedings 042010 when the Tribunal hearing the matter obviously thought at least part of Mr and Mrs B’s evidence was credible. We do not believe that the Bar Association can be criticised for relying upon the material and information provided by Mr and Mrs B. Nor could it be said that the Bar Association was acting “inconsistently” as the Law Society had apparently done in Symonds.

84 As a result, we do not accept that the second ‘special circumstance’ identified by the Barrister has been made out. Nor do we find that what occurred in this regard would warrant an order under s.171E(2) in the Barrister’s favour.

85 As to the third ‘special circumstance’ sought to be relied upon, failure to serve an affidavit by Mr or Mrs B, we do not find that this is a ‘special circumstance’ nor do we find that it would warrant an order in the Barrister’s favour. The statement in the Symonds decision dealing with the failure to file a statutory declaration relates to a different tribunal with different procedures in different circumstances. The Administrative Decisions Tribunal may proceed by affidavit or oral evidence in chief or a combination of both. Section 73 of the Administrative Decisions Tribunal Act not only makes clear that the Tribunal may determine its own procedure including acting on written or oral evidence but also requires that it act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. The effect of the evidence anticipated to be given by Mr and Mrs B had already been provided to the Barrister by way of transcripts of interview, particulars and similar matters. We believe that the Barrister was adequately informed of the evidence and case against him. Nonetheless, if the Barrister was unaware of the case to be made against him in proceeding 042010, this was something for which he bears some responsibility. He had failed to provide an address or other means of communication which would have allowed him to be made so aware. We do not find anything in the conduct of the Bar Association relating to the procedures adopted in the hearing in August 2005 or to the preparation for the hearing which is worthy of condemnation or criticism in the circumstances.

86 We find that what did occur would not warrant an order under s.171E(2) in the Barrister’s favour.

87 Finally, even if all these circumstances were viewed together rather than separately and they amounted to ‘special circumstances’, we would nonetheless conclude that they did not warrant an order under s.171E(2) in respect of proceeding 042010.

88 This conclusion is also appropriate given the attitude expressed on the Barrister’s behalf when the re-opening application in relation to proceedings 042039 and 042040 was heard. As a result of the Tribunal’s dismissal of information 042010 in February 2006, the power to award costs under s.171E(2) arose at that time. In this context, the Barrister in his written submissions of 4 September 2006 in support of the re-opening application indicated that he was not seeking costs in matter 042010 or at least was not availing himself of the opportunity to do so when the related matters were before the Tribunal. On page 24 of those submissions under the heading ‘Summary of Submissions’ it is stated:

5. There should be no Order as to costs in relation to the proceedings (other than the present [ie the re-opening] application) to date. The Respondent [Barrister] has been successful in relation to 042010, and the proceedings in relation to 042039 and 042020 have miscarried for reasons for which the Respondent is not responsible.

89 On the surface, this approach appears to be inconsistent with the application for costs in proceeding 042010 which is now sought to be raised in, or joined to, the application for costs in proceedings 042039 and 042040. Whilst these earlier submissions would not preclude the Barrister from making an application for costs in proceeding 042010, they might well be seen as raising discretionary considerations which weigh against granting costs in the Barrister’s favour so long after the dismissal of Information 042010 and after the Barrister apparently eschewed such an application on a previous occasion.

Proceedings 042039 and 042040

90 In relation to proceedings 042039 and 042040, these can largely be dealt with together. The Barrister’s previous solicitor apparently never acted for him in relation to these proceedings, had no authority to accept service of the informations in those proceedings and, in any event, ceased to have any relationship with the Barrister when he ceased to act for him in proceeding 042010 in April 2005. Further, although these proceedings were originally heard in August 2005, the Barrister was not represented at that hearing and he says that he was not even aware of these two proceedings 042039 and 042040 until March 2006. In these circumstances, it cannot be the case that the Barrister incurred any costs in proceedings 042039 and 042040 prior to his instructing his present solicitor to seek to have the hearing of these matters re-opened.

91 Thus, any application for costs must be limited to the costs of the application to set aside the Tribunal’s earlier findings and re-open the hearing and the costs of the rehearing. As we noted above, the costs of the application to re-open were expressly reserved by the Tribunal in its decision and reasons published on 14 January 2008.

92 There appear to us to be two possible ways to approach the reserved costs of the re-opening application. The first alternative would be to hold that the costs of the re-opening application should be treated as part of the overall costs of the proceedings and should stand or fall with the decision in relation to the costs of the re-hearing. The second would be to consider the costs of the re-opening application separately from the costs of the rehearing. It may be that in substance there is no difference between the two approaches because even if the costs of the re-opening application were treated as part of the overall costs the Tribunal could allow a portion of the costs and not other portions.

93 In the present case, however, it is not necessary for us to choose between these two approaches because, whichever is adopted, the result in our view would be the same. It would not be appropriate to make an order for costs under s.171E(2) in the Barrister’s favour in respect of the re-opening application or the rehearing.

94 If the application for costs of the re-opening is considered separately, we would reject the application because, although there might be ‘special circumstances’ which take that application out of the ordinary or usual, those circumstances do not warrant an order in the Barrister’s favour. It appears to us that the Barrister was at least substantially responsible for his non-appearance at the original hearing of proceeding 042010 at which he would have become aware of proceedings 042039 and 042040. His lack of appearance and the consequent lack of awareness of the later proceedings gave rise, at least in part, to the necessity for the re-opening application. He allowed himself to be without any legal representation after April 2005 notwithstanding the very serious nature of the allegations made against him and the fact that the Bar Association was obviously pursuing proceedings against him. Further, he left Australia without providing to the Tribunal or to the Bar Association a postal address or any other indication of how he could be effectively served with documents or contacted and informed of any hearings or related matters. This conduct might at least be considered extraordinary for a Barrister, aware of disciplinary proceedings pending against him. The Barrister himself describes his conduct as “remiss”.

95 Whilst it may be the case that the Bar Association could have done more in its attempts to serve the later 2 informations on the Barrister, in our view this is not sufficient to tip the balance, weighted so heavily against him because of his own failure to protect his own interests, in the Barrister’s favour. Accordingly, if considered separately the application for the costs reserved on the re-opening application should be rejected.

96 We now turn to our reasons for rejecting the Barrister’s application for the overall costs of proceedings 042039 and 042040. As with proceeding 042010, the Barrister must show that there are special circumstances that warrant an order for costs in his favour. The Barrister’s submissions put forward various grounds as constituting ‘special circumstances’ and these may be summarised for the purpose of these reasons as follows:

(a) Proceeding 042039 would never have been commenced if the requirements of s.155 of the 1987 Act had been complied with and should not have been continued once the deficiencies in the formulation of the matter became obvious.

(b) Proceedings 042039 and 042040 were conducted in a manner which failed to observe the well known practices and procedures of the Tribunal.

(c) Miscellaneous aspects of how the Bar Association conducted proceedings listed by the Barrister in his written submissions as:

(vii) The Informant required the presence of a least one witness for cross-examination but did not cross-examine.

(viii) The Informant did not file any evidence in response to or contradiction of the affidavits of the Respondent and [his wife].

(ix) The matter was of particular gravity to the Respondent as was known to the Informant requiring commensurate care and attention.

(x) The Informant persisted in seeking the removal of the Respondent’s name from the Roll of Barristers even after the principal claim had been dismissed.

97 The first of the grounds put forward as constituting ‘special circumstances’ relates to ‘deficiencies’ and ‘errors of fact’ in the formulation of Grounds 1 and 2 in Information 042039. Specifically, in Ground 1 the Bar Association alleged that the Barrister gave a false and misleading response to the Bar Association in the Barrister’s letter of 28 June 2002 by stating that ‘he did not take part in the preparation of the application for a protection visa made by’ the Bs when in fact he did take part in assisting the drafting of the ‘statement of claim’. The words alleged were a paraphrase of the words actually written by the Barrister. A similar criticism is made of Ground 2.

98 In addition, particular (f) to Ground 1 included the following: ‘the application was in the form of a three page document entitled ‘statement of claim’. The Barrister in his reply admitted the particulars including paragraph (f). As we noted at some length in our reasons for decision in these matters delivered on 5 December 2008 (see [13] to [22] and [48] to [51]), the allegation in particular (f) quoted above, although it was admitted by the Barrister, was, on the evidence then before the Tribunal, incorrect. The application (described in some detail in [15] to [19] of our earlier reasons) was not ‘in the form of a three page document entitled “statement of claim”’.

99 We accept that these circumstances may take the case outside the usual or ordinary situation in which a practitioner is found not guilty of professional misconduct or unsatisfactory professional conduct. The more important question then becomes whether these circumstances warrant an order that the Barrister’s costs of the hearing be paid out of the Public Purpose Fund.

100 In this regard we note first that the special circumstance does not relate at all to information 042040 which was heard at the same time.

101 Secondly, we do not think it is correct to conclude that in all the circumstances Ground 1 or Ground 2 should never have been included in Information 042039. The paraphrases in Grounds 1 and 2 of the words actually used by the Barrister were not so obviously flawed that they could not possibly have been inferred from the words used in the circumstances. What constituted the ‘applications’ or ‘submissions’ to which the Barrister was referring in his letter of 28 June 2002 was a matter which required elucidation by evidence. The Bar Association should not be criticised for resolving to commence proceeding in relation to these grounds because it did not accurately foresee how the totality of the evidence would appear at the end of a final, contested hearing.

102 Thirdly, although the Barrister’s submissions suggested that the errors were egregious and obvious, the Barrister and his advisers did not apparently notice the error in relation to particular (f) and even made a formal admission in his Reply that it was correct. Nor did the Tribunal as it was originally constituted at the first hearing comment on particular (f) or find that it was erroneous on the evidence before it. If the ‘application’ had in fact been as alleged and admitted, it would have been open to find that the Barrister did give a false and misleading response. Moreover, the original Tribunal in its decision of 3 February 2006 concluded on the material before it that the ‘statement of claim’ was ‘the very basis of the application’ at [163] (and note [31]) and this was a significant reason why Ground 1 in Information 042039 was found to have been made out at that hearing. As we have already stated, the paraphrases were not so obviously erroneous that they could be immediately rejected without hearing evidence and submissions from both sides. Thus, it seems to us that any errors or misparaphrasing were not so obvious or fundamental that the Bar Association’s continuing the proceedings deserves criticism.

103 Fourthly, as any error does not appear to have affected how either party conducted its case before us and as the present Tribunal reached its decision with the benefit of clarification of these issues, we do not believe that in the end any such error had a prejudicial impact on either party or that particular blame should be attributed to either party in this regard.

104 Accordingly, we do not find that these circumstances warrant an order that the Barrister’s costs be paid out of the Public Purpose Fund.

105 As to the second alleged ‘special circumstance’, namely that in conducting proceedings 042039 and 042040 the Bar Association failed to comply with the practices and procedures of the Tribunal, we find this circumstance is not made out. We have dealt above with the fact that no affidavits from Mr and Mrs B were ever filed or served in relation to proceeding 042010. Substantially the same comments can be made in relation to proceedings 042039 and 042040. We do not consider that the Bar Association can be properly or justifiably criticised for the manner in which it conducted the re-opening application or the rehearing before us. The Bar Association’s conduct of the matters provides no basis for ordering the Barrister’s costs in relation to proceedings 042039 and 042040 be paid out of the Public Purpose Fund.

106 As to the third type of ‘special circumstances’ relied upon, first it is said that the Bar Association’s failing to cross examine a witness whose presence was required for cross examination and not filing evidence in reply to the Barrister’s evidence are ‘special circumstances’. These occurrences are far from uncommon in litigation. They do not render this case different from the usual or ordinary case in which a practitioner is found not guilty of professional misconduct or unsatisfactory professional conduct.

107 As a result, these do not constitute special circumstances which could warrant an order under s.171E(2) in favour of the Barrister.

108 In addition, it was submitted that as these proceedings raised matters of particular gravity to the Barrister (which was known to the Bar Association) commensurate care and attention were required. Whilst we accept that these matters were of particular gravity from the point of view of the Barrister and that the Bar Association should act in such matters with commensurate care and attention, we do not find that the Bar Association failed so to act. Nor do we conclude that the Bar Association’s relevant conduct amounted to ‘special circumstances’ which would warrant a s.171E(2) costs award. Moreover, these circumstances do not take the case out of the ordinary. Disciplinary proceedings raise matters of particular gravity to each practitioner against whom they are brought. The Barrister was not unusual in this regard.

109 Finally, the Barrister relied upon the fact that the Bar Association persisted in seeking the removal of the Barrister’s name from the Roll of Barristers even after the ‘principal complaint’ had been dismissed. There is no doubt that the allegations in proceeding 042010 were serious and that this information was dismissed. It does not follow, however, that the alleged conduct in proceeding 042039 was not also serious and, if proved, could not have justified removal of the Barrister’s name from the Roll. If a Barrister gives false and misleading responses to the Bar Association this may be a most serious instance of professional misconduct as well as a contravention of s.152(5) of the 1987 Act which prohibits a legal practitioner from misleading or obstructing the Bar Council in the exercise of its relevant functions under the Act. It could well, depending on the circumstances, justify an order that the practitioner’s name be removed from the Roll. This being the case, the Barrister has not made out any ‘special circumstance’ in this regard. Further and in any event, the facts relied upon do not constitute a circumstance which would warrant an order under s.171E(2) in the Barrister’s favour.

Conclusion

110 Finally, even if all the circumstances identified by the Barrister are considered cumulatively and not separately, while they do include some which amount to ‘special circumstances’, we do not consider that they warrant any order for costs in favour of the Barrister in relation to any aspect of any of the applications or proceedings before the Tribunal in any of proceedings 042010, 042039 or 042040.

111 Accordingly, the Barrister’s application for costs filed 15 December 2008 is dismissed and the Tribunal makes no order as to costs.