PM v NSW Bar Association (No2)

[2006] NSWADTAP 36

Appeal Panel - External

CITATION:	PM v NSW Bar Association (No2) [2006] NSWADTAP 36
PARTIES:	APPELLANT PM RESPONDENT Council of the New South Wales Bar Association
FILE NUMBER:	058004
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	10/26/2005
DATE OF DECISION:	08/15/2006
BEFORE:	Karpin A - ADCJ (Deputy President); Officer D QC - Judicial Member; Kirkby E - Non Judicial Member
CATCHWORDS:	Costs
MATTER FOR DECISION:	Costs
FILE NUMBER UNDER APPEAL:	N/A
DATE OF DECISION UNDER APPEAL:	10/04/2004
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Legal Profession Act 1987 Legal Profession Amendment Act 2004
CASES CITED:	Brooks Maher v Cheung [2001] NSWADT 18
REPRESENTATION:	APPELLANT In person RESPONDENT P Brereton, barrister
ORDERS:	The Appellant to pay the Respondent's costs as agreed or assessed.

1 In its decision dated 5 October 2005 the Tribunal dismissed an appeal by the Appellant from a decision of the Bar Council that the Appellant be reprimanded pursuant to s.155(3)(a) of the Legal Profession Act 1987.

2 On 18 March the barrister filed a Notice of Appeal and, following further procedural steps, on 19 July 2005 filed a document described as “an amended application”.

3 In dismissing the appeal, the Tribunal rejected a submission by the barrister that his case required an exception to be made to amendments made by the Legal Profession Amendment Act 2004. This submission was made notwithstanding what the Tribunal found to be the clear and unambiguous words providing that the amendments to s.155 were to apply to conduct occurring prior to 15 August 2004. As the Tribunal found in those circumstances, it was of the opinion that there was no scope to give the legislation a more restrictive meaning as contended for by the barrister.

4 The Tribunal also rejected a submission by the barrister that there was undue delay in investigation and the decision to reprimand such that the Bar Council’s decision ought to be permanently stayed. In rejecting that submission, the Tribunal said that in its opinion the assertion was without foundation. The Tribunal also rejected a submission by the barrister that such delay had been intentional on the part of the Bar Council as being a submission totally without foundation.

5 The Tribunal also rejected a complaint by the barrister that the amendments to the legislation denied him an opportunity to justify his behaviour before this Tribunal in the sense that the legislation in its unamended form required his consent to a reprimand and, had that consent not been forthcoming, the Bar Council would have had no realistic alternative but to institute proceedings against the barrister in the Tribunal. The Tribunal expressed the view that that submission failed to adequately deal with the express words of the legislation and failed to give adequate weight to the appeal rights provided for under s.155(6) of the Act as amended. The Tribunal held that the amendments to the legislation were clear and unambiguous.

6 The barrister complained of a breach of natural justice. This submission was rejected as being one which had not been articulated with any substance.

7 The Tribunal formed the opinion that the proceedings instituted by the barrister were misconceived or lacking in substance and ought to be dismissed under s.73(5)(h) of the Administrative Decisions Tribunal Act 1997.

8 The barrister submitted that the question of costs was discretionary. He submitted, inter alia, that the Tribunal’s decision had not stated that “the application was … or totally lacking in substance.” That submission is factually ill-founded. It was because the proceedings were misconceived or lacking in substance that the Tribunal dismissed them. The barrister further submitted that the case raised a novel question of law. The Tribunal rejects that submission. As it found, there was no novel question of law involved, but rather the application of the clear and unambiguous wording in the amending legislation. The barrister further submitted that his application ought to be viewed not as one motivated by personal gain, but the public interest in compliance with the legal procedural regime prescribed by the Legal Profession Act 1987. It was submitted that the proceedings ought to be viewed as akin to public interest litigation. The Tribunal rejects that submission. There is nothing of a public interest nature in the proceedings instituted by the Appellant.

9 The remaining submissions of the Appellant continue to allege that he had been unfairly treated by being forced to accept a reprimand and that the action was a bona fide step to avoid a perceived injustice. Again, this submission fails to acknowledge the clear and unambiguous terms of the amending legislation.

10 As the Bar Council submits, the question of costs is governed by s.88 of the Administrative Decisions Tribunal Act 1997 which empowers the Tribunal to make an award of costs in the present proceedings only if the Tribunal is “satisfied that there are special circumstances warranting an order for costs.” As was pointed out by this Tribunal in Brooks Maher v Cheung [2001] NSWADT 18, an award of costs may be warranted if proceedings are instituted which are misconceived or lacking in substance. The Tribunal found that that was precisely the nature of the proceedings instituted by the Appellant in the present case. See also Practice Note 12 (11 May 2005).

11 In the present case, not only were the proceedings dismissed as being misconceived or lacking in substance, there was an allegation of intentional delay on the part of the Bar Council. That allegation was dismissed as being totally without foundation.

12 The Tribunal is of the opinion that there are indeed special circumstances warranting an order for costs in the present case and the Tribunal so orders.