NSW Bar Association v Howen (No 2) [2008] NSWADT 27 (17 January 2008)

Last Updated: 12 February 2008

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
NSW Bar Association v Howen (No 2) [2008] NSWADT 27


DIVISION:
LEGAL SERVICES DIVISION

PARTIES:
APPLICANT
Council of the New South Wales Bar Association

RESPONDENT
Alexander Stanislaw Howen



FILE NUMBERS:
062001

HEARING DATES:
On the papers

SUBMISSIONS CLOSED:
19 October 2007



DATE OF DECISION:
17 January 2008

BEFORE:
Chesterman M - ADCJ (Deputy President)Robberds LP QC- Judicial MemberFitzgerald R - Non Judicial Member





LEGISLATION CITED:
Administrative Decisions Tribunal Act 1997
Legal Profession Act 1987
Legal Profession Act 2004

CASES CITED:
Clyne v New South Wales Bar Association [1960] HCA 40; (1960) 104 CLR 186
Council of the New South Wales Bar Association v Howen [2007] NSWADT 200
Law Society of New South Wales v Carver [2003] NSWADT 158
New South Wales Bar Association v Tedeschi (No 3) [2003] NSWADT 174
Paras v Legal Services Commissioner (No 4) (LSD) [2007] NSWADTAP 12
PM v NSW Bar Association (No 2) [2006] NSWADTAP 36
Re Mark Phillip Symonds [1995] 2 LPDR 10

TEXTS CITED:


APPLICATION:
Barrister – Disciplinary application

MATTER FOR DECISION:
Costs


REPRESENTATION:
P Mahony, SC
N Murray, barrister


ORDERS:
One-third of the Respondent’s costs of and incidental to these proceedings, as agreed or assessed, are to be paid from the Public Purpose Fund.


Reasons for Decision:

REASONS FOR DECISION

Introduction

1 This decision deals with an application for costs made by the Respondent barrister, Alexander Stanislaw Howen, (‘the Barrister’), following the dismissal of an Application brought against him by the Applicant, the Council of the New South Wales Bar Association (‘the Bar Association’).

2 In its Application, made under the Legal Profession Act 2004 (‘the LP Act’), the Bar Association sought a finding that the Barrister had engaged in professional misconduct or unsatisfactory professional misconduct and one or more of a range of disciplinary orders under section 562 of this Act. The orders that the Tribunal was invited to consider were these: removal of the Barrister’s name from the local roll, suspension or cancellation of his practitioner’s local practising certificate, deferral of the issue of a local practising certificate, a reprimand, a fine and an order that he undertake and complete a specified course of further legal education.

3 The Application was filed on 17 January 2006 following an investigation, carried out by a Professional Conduct Committee of the Bar Association, of a complaint initially made to the Bar Association on 8 May 2003 by Mr Roderick Best. Mr Best was the Director, Legal Services, of the Department of Community Services (hereafter ‘DOCS’).

4 On 1 December 2005, having investigated the complaint, the Bar Association by its Council resolved that the matter should be referred to the Tribunal.

5 The matters raised in the complaint and in the Bar Association’s Application to the Tribunal came about in the following way. During 2002, the Barrister acted for an Indian husband and wife in proceedings in the Children’s Court, in which DOCS unsuccessfully sought a care order in respect of their daughter. He appeared in subsequent proceedings relating to the child, first in the Supreme Court, then in the District Court. The District Court proceedings, in which he acted for the wife only, were instituted by DOCS by way of appeal against the orders made by the Deputy Chief Magistrate in the Children’s Court. All of these proceedings took place in closed court.

6 The Application by the Bar Association set out two Grounds. Ground 1 was that the Barrister, in these District Court proceedings, had alleged matters of fact amounting to serious misconduct against DOCS in the absence of a belief, held on reasonable grounds, that available material by which the allegations could be supported provided a proper basis for them. Ground 2 was in identical terms, except that each allegation claimed to have been made by the Barrister was against Mr Barry Ward, who was then the Acting Director, Child and Family Services, South West Metropolitan Region, DOCS.

7 Each of the two Grounds was supported by Particulars, set out in subparagraphs (a), (b) and (c). On the final day of the three-day hearing, however, Mr Mahony SC, senior counsel for the Bar Association, indicated that the Association no longer pressed subparagraph (c) with regard to either of the Grounds.

8 Subparagraphs (a) and (b) of the Particulars to Ground 1 were as follows:

(a) On 15 October 2002, the Barrister alleged that an appeal by [DOCS] to the District Court from a decision of the Children’s Court pursuant to the Children (Care and Protection) Act 1987 (NSW) was an abuse of process brought for collateral reasons not to do with the child the subject of the proceedings ("the child"), but with the reputation of an officer about whom adverse findings had been made in the Children’s Court ("the DOCS officer").

(b) On 6 November 2002, the Barrister alleged that in the appeal to the District Court, [DOCS] had shown contempt for the Deputy Chief Magistrate of the Children’s Court and lied, in relation to the role of the DOCS officer in the ongoing management of the child’s case.

9 Subparagraphs (a) and (b) of the Particulars to Ground 2 were as follows:

(a) On 15 October 2002, the Barrister alleged that the authorisation by Mr Ward of the appeal to the District Court was an abuse of process made for collateral reasons not to do with the child the subject of the proceedings ("the child"), but with the reputation of an officer about whom adverse findings had been made in the Children’s Court ("the DOCS officer").

(b) On 6 November 2002, the Barrister alleged that in the appeal to the District Court, Mr Ward had shown contempt for the Deputy Chief Magistrate of the Children’s Court and lied, in relation to the role of the DOCS officer in the ongoing management of the child’s case.

10 In a reserved decision delivered on 19 June 2007, we held that the Application should be dismissed (Council of the New South Wales Bar Association v Howen [2007] NSWADT 200). Our reasons for doing so varied as between these four particularised allegations. So far as relevant, they are outlined below.

11 In our decision, we also gave directions for the filing of submissions regarding costs, indicating that we would resolve this matter ‘on the papers’, under section 76 of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’), unless one or other of the parties applied, giving reasons, for a hearing to take place. The parties have filed written submissions. No application for a hearing has been received.

Relevant legislation and its interpretation

12 It is accepted by both parties that the Barrister’s application for costs falls to be determined under section 566(3) of the LP Act. This states as follows:

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.

13 In Law Society of New South Wales v Carver [2003] NSWADT 158 at [24 – 32], the Tribunal considered the meaning of the phrase that corresponded, in the predecessor to section 566(3), to the phrase ‘if satisfied that the practitioner did not engage in unsatisfactory professional conduct or professional misconduct’. The predecessor provision was section 171E(2) of the now-repealed Legal Profession Act 1987. The corresponding phrase in that provision was as follows: ‘if... satisfied that the practitioner was not guilty of unsatisfactory professional conduct or professional misconduct’. The Tribunal concluded, at [32], that the phrase ‘is satisfied that the practitioner is not guilty’ in the 1987 Act was ‘intended to be construed as if it were: "is not satisfied that the practitioner is guilty"’.

14 We are not at all sure whether this approach should be adopted in construing the phrase just quoted from section 566(3) of the 2004 Act. The existence of a different phrase in section 566(2) suggests that it is not applicable in interpreting section 566(3). The phrase in question in section 566(2) is ‘an Australian legal practitioner whom [the Tribunal] has not found to have engaged in unsatisfactory professional conduct or professional misconduct’. But we do not have to resolve this question.

15 The reason for this is that in the particular circumstances of the present case a decision dismissing the Bar Association’s application necessarily involved a positive finding that conduct amounting to unsatisfactory professional conduct or professional misconduct did not occur. This was not a case where the Bar Association alleged but failed to prove factual matters which, if established, would have led to a decision in its favour. Subject to a few relatively insignificant exceptions, the relevant facts were not in dispute. Adapting phraseology used in Carver at [25], there was accordingly no ‘middle ground’ wherein we could have declared ourselves to be ‘neither satisfied of guilt nor satisfied of non-guilt’. The case did not fall within the category of ‘cases that fail merely because the Briginshaw standard is not satisfied’.

16 We have treated this matter as no more than an introductory issue because Mr Mahony SC, in his submissions on costs on behalf of the Bar Association, did not raise it as a possible ground of defence to the Barrister’s application for costs. He must be taken to have conceded implicitly that in our decision to dismiss the Bar Association’s Application we showed ourselves to be ‘satisfied that the practitioner did not engage in unsatisfactory professional conduct or professional misconduct’, within the meaning of section 566(3).

17 Accordingly, the question whether an order for costs should be made in this case under section 566(3) depends entirely on whether there are ‘special circumstances’ which ‘warrant the making of’ such an order.

18 In his submissions, Mr Mahony referred us to a discussion by the Tribunal in New South Wales Bar Association v Tedeschi (No 3) [2003] NSWADT 174 at [43–46] of the phrase ‘special circumstances’, as used in section 171E(2) of the now-repealed Legal Profession Act 1987. At [46], the Tribunal expressed the view that if a costs order was to be made under s. 171E(2), ‘there must be something that sets the case apart from the usual or ordinary case where a practitioner has been found not guilty’. It added, however, that ‘the distinguishing feature does not have to be exceptional’. Instead, ‘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’.

19 In our opinion, these observations state the law correctly. To similar effect are observations by the Tribunal regarding the meaning of the phrase ‘special circumstances warranting an award of costs’ in section 88(1) of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’). In a number of cases arising under the LP Act or its predecessor (see example PM v NSW Bar Association (No 2) [2006] NSWADTAP 36; Paras v Legal Services Commissioner (No 4) (LSD) [2007] NSWADTAP 12), the issue of costs has fallen for determination under this provision instead of section 171E(2) or section 566(3). While both of the latter provisions are drafted in distinctly different terms from those that are to be found in section 88, we consider that a category of ‘special circumstances’ that the Tribunal recognised in the second of the two cases just cited (Paras v Legal Services Commissioner (No 4) – see the judgment at [63]) is applicable under section 566(3). This is where the case advanced by the unsuccessful party, against whom a costs order is being sought, is clearly without merit, and could have been seen to be so at the time when proceedings were instituted.

The competing submissions

20 To a substantial degree, Mr Mahony’s submissions on behalf of the Bar Association were framed as rejoinders to propositions advanced by Mr Murray, counsel for the Barrister. It is accordingly convenient to summarise the two sets of submissions by outlining in turn the various components of Mr Murray’s argument, followed in each instance by Mr Mahony’s response.

21 At the commencement of his submissions, Mr Murray placed significant emphasis on the decision of the Legal Services Tribunal in Re Mark Phillip Symonds [1995] 2 LPDR 10. In that case, the Law Society brought an application alleging professional misconduct against a solicitor. During its investigation of the matter before instituting proceedings, it put the relevant allegations before the solicitor, who responded in considerable detail. During the interlocutory stage of the proceedings, the solicitor continued to ‘put up a strenuous fight’ (see the report at 12). Eventually, the Law Society withdrew its application, which was accordingly dismissed by the Tribunal. It emerged that the principal evidence to be adduced by the Society was an affidavit that had been sworn in other proceedings by another solicitor against whom the Society was contemporaneously maintaining proceedings for professional misconduct.

22 The Tribunal held that there were in this case ‘special circumstances’ that ‘warranted’ an award of costs under section 171E(2) of the Legal Profession Act 1987. In Mr Murray’s submission, the Tribunal’s judgment showed that the factors inducing this conclusion were (in summary form) as follows: (a) that the principal witness for the Law Society had not sworn an affidavit or statutory declaration in the case and was herself the subject of professional misconduct proceedings; (b) that the Society, without explanation, had withdrawn its application, and therefore effectively offered no evidence; (c) that the Society had previously refused to withdraw the application at the solicitor’s request, despite knowing the nature of the evidence that the solicitor would give; and (d) that the solicitor had obtained independent legal advice and briefed counsel, incurring considerable expense. Mr Murray claimed that the last two of these factors were a feature of the present case.

23 He relied also on statements by the Tribunal in Symonds (at 12) to the effect that (i) the Law Society, having no ‘absolute duty’ to bring Tribunal proceedings against a solicitor, should only do so after conducting a careful investigation (including ‘careful interview’ of the witnesses) and carefully weighing up the evidence and the chances of success; and (ii) the consequences of making a complaint against a solicitor were ‘highly traumatic’, since it ‘put at risk’ his or her professional reputation and was likely to impose considerable demands in terms of time and expense.

24 In response, Mr Mahony contended that the alleged parallels between the present case and the decision of the Legal Services Tribunal in Symonds were ‘illusory’. The reason that he gave was, in essence, that the first two of the four factors that Mr Murray identified as significant in the Symonds decision were absent. Whereas in Symonds the Law Society withdrew its application and offered no evidence, the Bar Association’s Application in the present case was only dismissed after a full hearing on the merits had taken place.

25 With specific reference to the facts of the present case and our decision dismissing the Bar Association’s Application, Mr Murray put forward six propositions, as follows.

26 First, since on the third day of a three-day hearing the Bar Association abandoned subparagraph (c) of the Particulars to each of the two Grounds, we should infer that the allegations made in those subparagraphs ‘had no prospects of success’.

27 Mr Mahony’s response was that the Bar Association’s decision to withdraw these allegations was prompted by its belief, reached at the time of the withdrawal, that the evidence to hand would be insufficient to establish them to the requisite standard of proof. There was no reason why the Tribunal should conclude that the Bar Association knew or ought to have known this before the commencement of proceedings.

28 Secondly, Mr Murray claimed that our rejection of the remaining allegations and our dismissal of the Bar Association’s Application were based ‘almost entirely’ on material (notably, the judgment in the Children’s Court against which DOCS appealed to the District Court and transcripts of the District Court proceedings) that was available to the Bar Association well before it instituted proceedings in the Tribunal. It was clear from our decision that in our opinion the Bar Association had ‘simply misconstrued that material’.

29 In Mr Murray’s submission, it followed from this proposition and its predecessor that ‘the present Application should never have been brought’. This, he said, was ‘the primary "special circumstance"’ warranting a costs order in his client’s favour.

30 Mr Murray elaborated on this second proposition at length in his submissions and Mr Mahony provided a detailed response. The most convenient way for us to describe these aspects of their respective arguments is in the ensuing section of this judgment, where we assess the competing submissions and state our conclusions.

31 Mr Murray’s third proposition was that the Bar Association, in seeking a finding of professional misconduct against the Barrister and one or more disciplinary orders within a range that included removal of his name from the local roll, had adopted a ‘high-handed’ and ‘grossly disproportionate’ approach. It thereby imposed upon him a substantial additional cost of an emotional and psychological nature. The conduct alleged against the Barrister could, in Mr Murray’s submission, have justified at most a finding of unsatisfactory professional conduct.

32 Mr Mahony sought to counter these arguments by claiming that throughout its investigation of the complaint the Professional Conduct Committee of the Bar Association had accorded procedural fairness to the Barrister, but that the Barrister had chosen to make only one substantial response to matters put to him at different times by the Committee. This response by the Barrister was in a letter dated 28 December 2004. Mr Mahony maintained that ‘it was the failure by the [Barrister] to respond on a number of occasions when invited to do so, so as to clarify his position, which led to Bar Council’s resolution to refer the matter to the Tribunal for a hearing on the merits’. He asserted also that emotional and psychological stress was an inevitable adjunct to disciplinary proceedings, and was not at all ‘special’.

33 Fourthly, Mr Murray pointed out that the proceedings in this case were long and complex. By virtue of the final sentence of section 566(3) of the LP Act, he said, this feature of them could of itself be held sufficient to constitute a ‘special circumstance’, though ‘special circumstances’ might equally be discernible in proceedings that were not long or complex. The Children’s Court and District Court proceedings from which the complaint against the Barrister arose were especially long and complex. The Bar Association’s investigation of the complaint commenced as long ago as mid-2003. While the length of the Tribunal hearing (three days) was not excessive, the period between the filing of its Application in the Tribunal (17 January 2006) and the delivery of our judgment (5 September 2007) was more than 18 months.

34 Mr Mahony agreed that length and/or complexity might be a ‘special circumstance’, but denied that that was the case here. He argued, referring to a chronology of the Tribunal proceedings that was annexed to his submissions, that the Barrister had failed to comply on four occasions with directions made by the Tribunal for affidavit evidence to be filed. Mr Mahony contended that for these reasons the length of the period of time elapsing between the filing of the Application and the commencement of the hearing was ‘the result solely of the [Barrister’s] failure to comply with the directions made’. He added that the Barrister filed and served an affidavit (his second affidavit) on the first day of the hearing (12 February 2007), rendering an adjournment necessary so that it could be read by the Bar Association’s representatives before cross-examination of the Barrister could begin.

35 Mr Mahony argued further that while the proceedings in the Children’s Court and the District Court from which the complaint emanated were undoubtedly complex, the complaint itself ‘was succinctly distilled by the investigative process’. Furthermore, the matters on which the complaint was based formed ‘a small part’ of the substantial quantity of material (much of which was needed to place the complaint into context) that was placed before the Tribunal.

36 Mr Murray’s fifth proposition was that during the investigation of the complaint by the Bar Association, the Barrister made it clear (in his letter dated 28 December 2004) that he would strenuously defend any proceedings taken against him. Mr Murray claimed that in this letter the Barrister also drew to the Bar Association’s attention many matters that we ultimately relied on in dismissing the case against him.

37 In response, Mr Mahony argued that since ‘many disciplinary proceedings are strenuously defended, some successfully and some not’, the Bar Association’s awareness that the Barrister would ‘strenuously defend’ the present proceedings could not be characterised as a ‘special circumstance’. He pointed also that the Professional Conduct Committee had in fact accepted some of the arguments made in the letter of 28 December 2004, while rejecting others.

38 Sixth and finally, Mr Murray drew attention to a number of ways in which the Barrister had suffered financially. From the time when the investigation commenced, the Barrister had been compelled to expend a great deal of time and effort reviewing the relevant material and corresponding with the Bar Association, with the consequence that his professional practice suffered. It was not until September 2005 that he obtained independent legal advice. Because of doing this, he had been compelled to pay an applicable excess on his professional indemnity policy. If no costs order were made, he would be faced also with a loading on future professional indemnity premiums. By contrast, a costs order would occasion no prejudice to the Bar Association, because the amount ordered would be paid out of the Public Purpose Fund.

39 Mr Mahony’s response here was that these matters were all irrelevant, being in no sense unusual or ‘special’ in the context of disciplinary proceedings. He added that there was no evidence to support the Barrister’s claim that if no costs order were made his professional indemnity premiums would be increased.

Analysis and conclusions

40 In this section, we discuss the various matters canvassed in the parties’ submissions in the order in which they are outlined above.

41 The significance of Re Symonds. We agree with Mr Mahony that Re Symonds is readily distinguishable from the present case. But subject to one qualification we do concur with the observations of the Legal Services Tribunal (summarised at [23] above) regarding the care that should be taken before proceedings of this nature are commenced. The qualification relates to the Tribunal’s suggestion that the Law Society has no ‘absolute duty’ to bring such proceedings against a solicitor. Under section 537(2) of the LP Act and indeed its precursor, section 155(2) of the Legal Profession Act 1987, the Law Society (or indeed the Bar Association or the Legal Services Commissioner), if satisfied after investigating a complaint that there is a reasonable likelihood of a finding of professional misconduct against the practitioner concerned, must (not merely may) institute proceedings.

42 Mr Murray’s claim that the Application ‘should never have been brought’. We turn now to what we have called the first and second propositions stated by Mr Murray. He linked them together as grounds for a contention that ‘the present Application should never have been brought’. We interpret this as a submission that the Application not merely was unsuccessful, but also was, and should have been seen to be, clearly lacking in merit. For the reasons set out above at [19], this potentially amounts to ‘special circumstances’ under section 566(3).

43 We do not agree with Mr Murray’s first proposition: viz, that the withdrawal of subparagraph (c) of the Particulars necessarily implied that the allegations made in those subparagraphs ‘had no prospects of success’. But the Bar Association offered no specific reason for having decided after two days of hearing, rather than before the hearing began, that its evidence relating to these allegations was insufficient. Consistently with the view taken of late withdrawal of misconduct proceedings in Re Symonds, we regard this aspect of the proceedings as suggesting that the Association’s case with respect to these allegations was unduly weak.

44 The gist of Mr Murray’s second proposition was his claim that the Bar Association ‘simply misconstrued’ various passages in the transcripts of the relevant Children’s Court and District Court proceedings, with the consequence that it instituted disciplinary proceedings against the Barrister which, on a proper reading of those passages, were manifestly bound to fail.

45 In order to evaluate this claim, we must refer to key paragraphs in our judgment dismissing the Bar Association’s Application (Council of the New South Wales Bar Association v Howen [2007] NSWADT 200).

46 At [102–107], we discussed a section of the transcript of the appeal that DOCS had made to the District Court. It recorded submissions made by the Barrister to the presiding judge, Hogan ADCJ. The Bar Association claimed that in this part of the appeal proceedings, the Barrister made the allegations set out in subparagraph (a) of the Particulars to Grounds 1 and 2–i.e., that the appeal, which had been brought by DOCS on the authorisation of Mr Ward, was ‘an abuse of process brought for collateral reasons not to do with the child the subject of the proceedings ... but with the reputation of an officer about whom adverse findings had been made in the Children’s Court’.

47 Our conclusion on this issue, set out at [103], was to this effect:

In our view, ... the Barrister did not make an allegation that the appeal was an abuse of process, nor that DOCS had brought the appeal for collateral reasons. He was merely indicating that he proposed to ask questions which may or may not lay a foundation for a submission that the appeal was an abuse of process. He was not guilty of any misconduct in giving that indication and, provided that appropriate questions were then asked, there would be no misconduct in asking those questions.

48 We agree with Mr Murray that at this juncture we were rejecting an interpretation of the relevant section of the transcript that the Bar Association had urged upon us. Our conclusion was indeed that in this particular context the Association had ‘misconstrued’ the relevant material.

49 On the other hand, at [108–110], we reached a significantly different conclusion with regard to a later section of the District Court transcript, on which the Bar Association also relied in endeavouring to substantiate the allegations in subparagraphs (a) of the Particulars. At this stage of the appeal proceedings, the Barrister was cross-examining Mr Ward. The questions that he asked included five (set out at [108]) relating to Mr Ward’s authorisation of the appeal. The question last quoted appeared to us to be particularly significant. It was as follows:

The Barrister: This is about using the unlimited resources of public funds to win at all costs for the purposes of simply rescuing the tarnished reputation of an officer about whom adverse findings have been made. Isn’t that right? (our emphasis)

50 Chiefly on the basis of the five questions that we quoted at [108], we held at [109–110] that the Barrister, during this cross-examination, did indeed allege, as claimed in subparagraphs (a) of the Particulars, that the appeal, brought by DOCS on the authorisation of Mr Ward, was ‘an abuse of process brought for collateral reasons...’

51 At [110–123], we went on to discuss whether these allegations against DOCS and Mr Ward, which expressly imputed serious misconduct on their part, were made, as claimed in Grounds 1 and 2, ‘in the absence of a belief, held on reasonable grounds, that available material by which the allegations could be supported provided a proper basis for them’. Our conclusion, summarised at [116], was that ‘there did exist reasonable grounds on which the Barrister could and did believe that material available to him, by which his allegation of a collateral purpose made against DOCS and Mr Ward could be supported, provided a proper basis for this allegation’.

52 We only reached this conclusion, however, after careful consideration of a number of factors (these are set out at [114–115]). As is further illustrated in paragraphs [117–122] of our judgment, the issue was not straightforward and our decision was not an easy one. Furthermore, at least one of the factual matters that we took into account in deciding that a proper basis existed for the Barrister’s allegation against DOCS and Mr Ward was not, as far as we can tell, known to the Bar Association at the time when it instituted proceedings. This was conduct by Mr Ward, observed by the Barrister, suggesting strongly that Ms Coorey’s reputation was a matter of serious concern to Mr Ward (see our judgment at [21–22]).

53 For these reasons, we hold that, despite Mr Murray’s contention, the Bar Association did not, in this part of its case, ‘simply misconstrue’ the relevant material. Furthermore and most significantly, its case, having regard to the evidence available to it at the time of instituting proceedings and to the arguments that it was in a position to advance, could not be characterised as clearly lacking in merit.

54 At [127–131], we dealt with the first of two allegations that, according to subparagraph (b) of the Particulars to Grounds 1 and 2 in the Application, the Barrister made against DOCS and Mr Ward in the District Court proceedings. This was that ‘in the appeal to the District Court’, each of them ‘had shown contempt for the Deputy Chief Magistrate of the Children’s Court’. The statements by the Barrister on which the Bar Association based this part of its case were made in the course of submissions to Hogan ADCJ regarding the calling of Ms Nada Coorey (the DOCS officer referred to in subparagraph (a) of the Particulars) as a witness in the appeal proceedings.

55 At [127], we ruled that the word ‘contempt’ in subparagraph (b) should be taken to mean contempt in the vernacular sense. At [128–129], we referred to certain matters, known at the time to the Barrister that according to his counsel at the hearing, Mr Williams SC, provided a proper basis for his allegation that both DOCS and Mr Ward had shown ‘contempt’ in this sense.

56 At [131], we resolved this issue in the Barrister’s favour, in the following terms:

... while the Barrister’s language at this point might be viewed as extravagant, he had reasonable grounds for believing that there was a proper basis for the gist of the submission that he was making. The conduct of DOCs to which Mr Williams referred showed that it wanted to deny or ignore the clear implications of the Magistrate’s findings regarding Ms Coorey. In this conduct Mr Ward was sufficiently involved to justify the same conclusion regarding him.

57 Again, this was not evidently a case where the Bar Association ‘simply misconstrued’ the relevant material. But we did not find it difficult to conclude, on the basis of evidence that was known to the Association before it filed its Application in the Tribunal, that at the time of alleging that DOCS and Mr Ward had shown ‘contempt’ for the Deputy Chief Magistrate, the evidence available to and relied on by the Barrister provided a proper basis for the allegation.

58 Finally, at [132–139], we dealt with the second of the two allegations that, according to subparagraph (b) of the Particulars to Grounds 1 and 2 in the Application, the Barrister made against DOCS and Mr Ward in the District Court proceedings. Again, the statements by the Barrister on which the Bar Association relied were made in the course of submissions to Hogan ADCJ regarding the calling of Ms Coorey as a witness. As framed in the Particulars, the allegation claimed to have been made by the Barrister was that DOCS and Mr Ward had both ‘lied, in relation to the role of the DOCS officer [Ms Coorey] in the ongoing management of the child’s case’.

59 After referring to relevant parts of the District Court transcript, we concluded as follows at [138]:

... the statement by the Barrister attributing a ‘lie’ to DOCS, when properly interpreted, amounted only to a claim that in so far as the evidence given by Mr Ward included a ‘suggestion’ that Ms Coorey had ‘no ongoing role’, that suggestion should not be accepted.

60 We then said, at [139]:

As we have just pointed out, Mr Ward himself, on two occasions, conceded the untruth of this ‘suggestion’. It follows that at the time when the Barrister made the submission of a ‘lie’ by DOCS, there existed reasonable grounds on which he could and did believe that material available to him, by which this submission could be supported, provided a proper basis for his making the submission.

61 This was, in our opinion, a situation in which the Bar Association interpreted the relevant parts of the Barrister’s submissions to Hogan ADCJ in a manner that exaggerated the seriousness of what he was alleging against both DOCS and Mr Ward. We agree, therefore, with Mr Murray that the Association appeared to have ‘misconstrued’ the relevant material. Had it not done so, it could readily have appreciated that there existed a ‘proper basis’ for the Barrister’s allegations.

62 We may summarise this part of our analysis of the parties’ submissions by saying that the Bar Association’s case in support of one of its allegations, as particularised, against the Barrister could reasonably have been viewed by the Association as having merit, albeit that we did not resolve it in the Association’s favour. On the other hand, due partly (but not wholly) to apparent failures to interpret the relevant parts of the District Court transcript correctly, the other components of the Association’s case lacked merit.

63 Whether the Application was ‘grossly disproportionate’ in alleging professional misconduct and suggesting a ‘striking off’ order. If the Bar Association had succeeded on all matters alleged against the Barrister, the reasoning and decision of the High Court decision in Clyne v New South Wales Bar Association [1960] HCA 40; (1960) 104 CLR 186, on which Mr Mahony placed strong reliance, would have provided a sound basis for arguing that the Barrister had committed professional misconduct and, indeed, for an order removing his name from the roll.

64 Could a finding of professional misconduct have reasonably been made if the Bar Association had succeeded with respect to the allegation for which it had, in our opinion, a reasonably meritorious, albeit unsuccessful, case? If the Barrister had not had a proper evidentiary basis for maintaining, in the course of cross-examining Mr Ward, that DOCS and Mr Ward had instituted the appeal to the District Court ‘simply’ in order to protect Ms Coorey’s reputation, would this conduct on his part have been open to characterisation as ‘disgraceful’ and ‘dishonourable’, so as to constitute professional misconduct at common law? In our opinion, a conclusion to this effect was at least arguable. It follows that we do not accept Mr Murray’s submission that the allegations which the Bar Association could reasonably have expected to establish against the Barrister could have justified at most a finding of unsatisfactory professional conduct.

65 Whether the proceedings were ‘long and complex’. Contrary to the position advanced by Mr Murray, we consider that these proceedings were not ‘long and complex’ in any relevant sense. It is not to the point that they emanated from earlier proceedings in the Children’s Court and the District Court, which clearly did answer this description. In addition, we would, if it were necessary, take account of Mr Mahony’s submission that any undue ‘length’ in these proceedings was primarily attributable to the conduct of the Barrister and/or those representing him.

66 The significance of the Barrister’s statements that he would defend these proceedings ‘strenuously’. On this point, we agree with Mr Mahony that the making of such statements by a legal practitioner against whom disciplinary proceedings are foreshadowed is not at all unusual, and does not carry any weight in a determination, following dismissal of the proceedings, as to whether there are ‘special circumstances’ under section 566(3).

67 Whether the financial implications of the proceedings and of our decision on costs are relevant. Once again, we agree with the position advanced by Mr Mahony. Whether or not the ‘special circumstances’ requirement is a fair or just restriction on costs orders in cases, like this one, where a legal practitioner has successfully defended disciplinary proceedings under the LP Act, it cannot be said that the financial implications to which Mr Murray drew attention are ‘special’ or ‘unusual’. They are likely to be present in any case falling within this category.

Our decision

68 On our reading of section 566(3) of the LP Act, this subsection confers on the Tribunal the power to order that only a specified proportion of the costs of an Australian legal practitioner be paid out of the Public Purpose Fund, provided that the requisite conditions are satisfied. The orders that the subsection authorises are defined as follows: ‘orders requiring payment of an Australian legal practitioner’s costs’. Under two other provisions within section 566 (subsections (2) and (4)), each of which sets out particular circumstances in which costs orders may be made against legal practitioners, it is apparent that such orders may relate to only part of the costs incurred by the party in whose favour the order is made. Nothing in the terminology of subsection (3) appears to us to rule out similarly limited orders in the circumstances to which the subsection is addressed.

69 We view the present case as one in which there are indeed ‘special circumstances’ which ‘warrant’ the making of a partial costs order. While one important component of the case brought by the Bar Association against the Barrister could not be regarded as clearly lacking in merit (see [53] above), our conclusion regarding the remaining components–including the particularised allegations that the Association withdrew after two days of hearing–was that they lacked merit. This should have been realised by the Association before it resolved to institute proceedings. In consequence, the Association brought a distinctly more substantial case against the Barrister than was at all justifiable. For reasons that we have outlined above (see [19] and [41 – 42]), this constitutes ‘special circumstances’ within the meaning of section 566(3) of the LP Act.

70 In deciding what proportion of the Barrister’s costs should be paid under section 566(3), we take account of the fact that all the different components of the Bar Association’s case had a shared factual background, namely, the lengthy and complex proceedings in the Children’s Court and the District Court. A substantial quantity of material relating to these proceedings had to be put before the Tribunal and subjected to careful analysis, irrespective of whether the Association’s case comprised all the matters that it set out in its Application or only those which we have found to have had some merit.

71 Our order is that one-third of the Barrister’s costs of and incidental to these proceedings, as agreed or assessed, are to be paid from the Public Purpose Fund.