Council of the New South Wales Bar Association v Rollinson (Costs)

1. [1]

   HER HONOUR: On 16 August 2021 the Court granted an application by the plaintiff (“the Bar Council”) to impose an injunction upon the defendant, Michael Rollinson, pursuant to s 447(3) of the Legal Profession Uniform Law 2014 (NSW) (“the Uniform Law”), preventing him from practising as a barrister in the absence of a practising certificate, together with other ancillary orders: Council of the New South Wales Bar Association v Rollinson [2021] NSWSC 1090. Setting aside timetabling, the orders were as follows:

2. [2]

   The Bar Council sought its costs of the proceedings, although that aspect of the matter was stood over to be dealt with on the papers, once the parties had an opportunity to file any evidence, and written submissions relevant to the issue.

3. [3]

   In its submissions of 18 August 2021 the Bar Council argues that, as the designated local regulatory authority charged with the responsibility of ensuring that the Objectives in s 9 of the Uniform Law are carried out, it was obliged to bring proceedings because of the defendant’s disregard for his obligations under the Uniform Law. It incurred considerable costs in bringing the proceedings before the Court, and should be granted a costs order in its favour, for the whole of the proceedings, notwithstanding the submitting appearance filed on 10 August 2021 by the defendant.

4. [4]

   In terms of a chronology of events and costs incurred, the plaintiff notes that it was obliged to:

   1. (1)

      retain solicitors and counsel to act in the matter;

   2. (2)

      prepare and file affidavit evidence and relevant exhibits;

   3. (3)

      appear in the Common Law Duty Judge’s List on 6 August 2021 to seek initial orders, and on 13 August 2021 before the Duty Registrar;

   4. (4)

      prepare and file written submissions; and

   5. (5)

      appear before the Court at the final hearing of the Summons on 16 August 2021.

5. [5]

   The plaintiff submits that, as the successful party to the litigation, and noting that ordinarily costs follow the event, it is entitled to the whole of its costs. Although the defendant filed a submitting appearance, that is to be distinguished from consenting to the orders sought by the plaintiff. It is contended that it was necessary despite the submitting appearance for the plaintiff to bring proceedings, prosecute those proceedings, and to seek the judgment of the Court, because of the persistent conduct of the defendant in disregard of his professional obligations. On that basis the plaintiff submits that the defendant should bear the costs.

6. [6]

   The Court was referred to the decisions of Dyer v Chrysanthou (No 3) (Costs) [2021] FCA 642; Lithgow State Mine Railway Ltd v City of Greater Lithgow Mining Museum Inc (No 3) [2020] NSWSC 35; and Kisimul Holdings Pty Ltd v Clear Position Pty Ltd (No 2) [2014] NSWCA 317.

7. [7]

   The defendant, in an email received by the Court on 30 August 2021, submitted that:

Determination

1. [8]

   As the plaintiff points out, there is no rule of law that a party that files a submitting appearance will not incur an adverse costs order for costs after the date upon which the submitting appearance was filed. As Thawley J explained in Dyer v Chrysanthou (No 3), at [5]:

2. [9]

   Similar statements have been made in the State context. In Lithgow State Mine Railway Darke J said, at [4] – [7]:

3. [10]

   The fact that the defendant filed a submitting appearance, four days after the plaintiff filed its Summons, is thus only one of the factors to which the Court must give attention.

4. [11]

   There are other features which, in my view, are of greater significance.

5. [12]

   The first is that it was necessary for the plaintiff to commence proceedings at all, in circumstances where the defendant should have well understood that he was not entitled to practice as, or hold himself out to be, a barrister in the absence of a valid practising certificate, and should have complied with his obligations under the Uniform Law to that end.

6. [13]

   The second is that, even if the defendant had been under some misapprehension in that regard, he received early and prompt advice, on 2 July 2021, from the Bar’s Certification Officer, warning him that he would contravene the Uniform Law if he practiced as a barrister, or held himself out to be such before a valid practising certificate issued to him.

7. [14]

   The third significant feature is that, by letter of 23 July 2021, the defendant gave an undertaking to the Bar Association’s Director of Professional Conduct that he would not engage in practice as a barrister, or represent that he was entitled to do so, until his practising certificate was renewed. It was the defendant’s apparent breach of that undertaking, in continuing to act as Counsel in a matter reserved before the Court of Appeal, that caused the plaintiff to commence these proceedings.

8. [15]

   That would not have been necessary had the defendant complied with his undertaking to the Bar.

9. [16]

   Once the action was commenced, although the defendant filed a submitting appearance, he did not consent to the orders sought, and it was thus necessary for the plaintiff to adduce evidence, and make submissions in support of its application. That process involved it in expense.

10. [17]

    As the designated local regulatory authority charged with statutory responsibilities under the Uniform Law, the plaintiff plays an important role in ensuring compliance with the legislation, and in protecting the public from persons purporting to practice law without an entitlement to do so. In this instance, it was only necessary for the plaintiff to take the action it did in this Court in fulfilment of its statutory role because of the defendant’s persistent disregard for his obligations under the Uniform Law, obligations of which he was clearly aware.

11. [18]

    Had the defendant complied with his undertaking of 23 July 2021 to the Bar, these proceedings would not have been brought and the Bar Council would not have incurred costs.

12. [19]

    In those circumstances, the plaintiff should not be deprived of its costs for the whole of the proceedings, notwithstanding the submitting appearance filed on 10 August 2021.

13. [20]

    The order that the Court makes is:

    1. (1)

       The defendant is to pay the plaintiff’s costs of these proceedings, as agreed or assessed.