Council of the New South Wales Bar Association v Berwick (No. 3) [2018] NSWCATOD 95

Council of the New South Wales Bar Association v Berwick (No. 3) [2018] NSWCATOD 95

Special circumstances warranted issue-based costs orders because the relative strength of the parties' positions varied by issue: Mr Rahman had a relatively strong case on the issue of losses of $25,349.16 caused by Dr Berwick's unsatisfactory professional conduct and entitlement to a $25,000 compensation order, while Dr Berwick had relatively strong positions on the $33,000 repayment claim, the $25,000 cap issue, and Mr Rahman's claim for costs of the Council's proceedings. Mr Rahman was not a party to the Council's proceedings and could not recover costs of those proceedings under s 60. The settlement offers were not treated as relevant because they required Mr Rahman to release other...

Jurisdiction
Australia
Judgment Date
18 June 2018
Procedural Posture
Costs Applications in Occupational Division Proceedings Concerning Compensation Under the Legal Profession Act 2004 (nsw) / Heard on the Papers
Outcome
Issue-based costs orders made for both Mr Rahman and Dr Berwick; hearing of the costs applications dispensed with.
Legal Topics
['special Circumstances Warranting Costs' "relative Strength of Parties' Cases" 'no Tenable Basis in Fact or Law' 'compensation Cap' 'settlement Offers Requiring Releases' 'standing of Non Party to Seek Costs']
['costs' 'legal Profession Disciplinary Proceedings' 'compensation Under the Legal Profession Act 2004 (nsw)'] ['special Circumstances Warranting Costs' "relative Strength of Parties' Cases" 'no Tenable Basis in Fact or Law' 'compensation Cap' 'settlement Offers Requiring Releases' 'standing of Non Party to Seek Costs']

Case Brief

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Procedural Posture

Costs Applications in Occupational Division Proceedings Concerning Compensation Under the Legal Profession Act 2004 (nsw) / Heard on the Papers

Legal Issues

  1. 1 ['Whether special circumstances warranted costs orders under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW).' 'Whether Mr Rahman was entitled to costs of the proceedings brought by the Council of the New South Wales Bar Association.' 'Whether Mr Rahman should recover costs of issues on which he succeeded in his compensation claims.' "Whether Dr Berwick should recover costs of issues on which Mr Rahman's claims had no tenable basis in fact or law or were relatively weak." 'Whether the compensation that could be awarded was capped at $25,000 for all matters the subject of the complaint.' "Whether Dr Berwick's settlement offers should be considered in deciding costs."]

Ratio Decidendi

Special circumstances warranted issue-based costs orders because the relative strength of the parties' positions varied by issue: Mr Rahman had a relatively strong case on the issue of losses of $25,349.16 caused by Dr Berwick's unsatisfactory professional conduct and entitlement to a $25,000 compensation order, while Dr Berwick had relatively strong positions on the $33,000 repayment claim, the $25,000 cap issue, and Mr Rahman's claim for costs of the Council's proceedings. Mr Rahman was not a party to the Council's proceedings and could not recover costs of those proceedings under s 60. The settlement offers were not treated as relevant because they required Mr Rahman to release other...

Court Disposition

Issue-based costs orders made for both Mr Rahman and Dr Berwick; hearing of the costs applications dispensed with.

Orders

  • ['Pursuant to s 50(1)(c) of the Civil and Administrative Tribunal Act 2013 the Tribunal dispenses with a hearing of the costs applications of the applicant Fahmid Rahman and the respondent Dr John Patrick Berwick.' "Order that the respondent pay the applicant the applicant's costs of the issues: (a) whether the...