A costs order under s 198M of the Legal Profession Act 1987 (NSW) is discretionary, not mandatory, even where the s 198N presumption arises. The test for 'without reasonable prospects of success' is whether the claim was 'fairly arguable' — the mere fact that litigation is resolved adversely to a party does not justify a costs order against the practitioner. Full procedural fairness must be afforded, including specific identification of the basis on which the practitioner is said to have contravened s 198J, and reasons must be given for any order made.
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