Carney v Council of the NSW Bar Association [2010] NSWADT 86

Carney v Council of the NSW Bar Association [2010] NSWADT 86

It was fair to award costs to the Applicant because there was no evidence supporting breaches of Rule 35(c) or (d), matters from the substantive reasons considerably strengthened the Applicant's claim and weakened the Bar Council's claim, and the proceedings had complexity. However, the Bar Council should pay only 80% of the Applicant's costs of the balance of the proceedings because the successful Rule 35 applicability point was first raised on the first day of hearing and the Applicant advanced other unsuccessful grounds. The parties should bear their own interlocutory costs before 18 March 2009 because both the Applicant and Mr Adamson contributed to delays while the Bar Council...

Jurisdiction
Australia
Judgment Date
08 April 2010
Procedural Posture
Application for Costs in Legal Services Division Proceedings / Costs Determined on the Papers After the Tribunal Set Aside the Bar Council's Reprimand Decision
Outcome
Costs awarded in part in favour of the Applicant against the Bar Council and Mr Adamson; leave to rely on the Applicant's further affidavit was refused.
Legal Topics
['award of Costs Under Section 88 of the Administrative Decisions Tribunal Act 1997' 'fairness in Costs Orders' 'review of Bar Council Reprimand' 'application to Re Open Proceedings']
['administrative Law' 'legal Profession Disciplinary Proceedings' 'costs'] ['award of Costs Under Section 88 of the Administrative Decisions Tribunal Act 1997' 'fairness in Costs Orders' 'review of Bar Council Reprimand' 'application to Re Open Proceedings']

Case Brief

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Procedural Posture

Application for Costs in Legal Services Division Proceedings / Costs Determined on the Papers After the Tribunal Set Aside the Bar Council's Reprimand Decision

Legal Issues

  1. 1 ['Whether it was fair under section 88 of the Administrative Decisions Tribunal Act 1997 to award costs in favour of the Applicant against the Bar Council.' "Whether the Bar Council should pay all or part of the Applicant's costs given the strength of the parties' claims, the complexity of the proceedings and the timing of the Applicant's successful argument." 'Whether each party should bear their own costs of interlocutory proceedings before 18 March 2009.' "Whether Mr Adamson should pay the Applicant's costs of Mr Adamson's application made on 18 March 2009 to re-open the proceedings." 'Whether the Applicant should be granted leave to rely on an affidavit sworn on 4 December 2009 for the costs application.']

Ratio Decidendi

It was fair to award costs to the Applicant because there was no evidence supporting breaches of Rule 35(c) or (d), matters from the substantive reasons considerably strengthened the Applicant's claim and weakened the Bar Council's claim, and the proceedings had complexity. However, the Bar Council should pay only 80% of the Applicant's costs of the balance of the proceedings because the successful Rule 35 applicability point was first raised on the first day of hearing and the Applicant advanced other unsuccessful grounds. The parties should bear their own interlocutory costs before 18 March 2009 because both the Applicant and Mr Adamson contributed to delays while the Bar Council...

Court Disposition

Costs awarded in part in favour of the Applicant against the Bar Council and Mr Adamson; leave to rely on the Applicant's further affidavit was refused.

Orders

  • ['The Applicant, the Bar Council and Mr Adamson bear their own costs of the interlocutory proceedings which took place prior to 18 March 2009.' "Mr Adamson pay the Applicant's costs of the application made by Mr Adamson on 18 March 2009 to re-open the proceedings." "The Bar Council pay 80% of the Applicant's costs...