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- Unreported Judgment
Legal Services Commissioner v Mould QCAT 32
Legal Services Commissioner v Mould  QCAT 32
LEGAL SERVICES COMMISSIONER
Occupational Regulation Matters
On the papers
2 February 2016
THE TRIBUNAL ORDERS THAT:
OCCUPATIONAL REGULATION – LEGAL PROFESSION – DISCIPLINE – COSTS – where the respondent was found to have committed certain prescribed conduct – where there was some delay and inefficiency in prosecuting the matter by the Legal Services Commissioner – where ‘exceptional circumstances’ are required for the Tribunal to refuse to order costs in favour of the Legal Services Commissioner – whether exceptional circumstances existed – whether the applicant should be entitled to its costs.
Legal Profession Act 2007 (Qld), s 462
Legal Services Commissioner v Bone  QCA 179
APPEARANCES and REPRESENTATION (if any):
The claim for costs was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
REASONS FOR DECISION
- On 16 October 2015 the Tribunal found that the applicant had committed four instances of unsatisfactory professional conduct as a result of conduct taking place in the course of legal practice. The Tribunal reserved the issue of costs for further submissions from the parties.
- The applicant submits that the applicant should be granted its cots of and incidental to the disciplinary proceedings, to be assessed on the standard basis in accordance with the applicant Supreme Court Scale.
- The respondent submits that no order as to costs should be made by the Tribunal or, if such an order is made, it should be limited to the costs on which the applicant was found to have committed unsatisfactory professional conduct.
- Section 462(1) of the Legal Profession Act 2007 (Qld) provides that:
A disciplinary body must make an order requiring a person… found to have engaged in prescribed conduct to pay costs… unless the disciplinary body is satisfied exceptional circumstances exist.
- “Prescribed conduct” is defined under s 462(8) to include having engaged in unsatisfactory professional conduct or professional misconduct. The Tribunal must order costs in favour of the applicant unless exceptional circumstances exist.
- The Tribunal observes that s 462(1) requires the Tribunal merely to make an order for costs. It is conceivable that it does not require ‘exceptional circumstances’ for the Tribunal to refuse costs in respect of each specific portion of the proceedings. As this was not argued in the proceedings, and nothing turns on the matter here, no finding is made in respect of this point.
- The Tribunal has considered the arguments advanced by the parties. The Tribunal observes there were substantial amendments made in respect of several of the charges, and some of the charges were withdrawn prior to the commencement of the proceedings.
- The amendments and withdrawals were not so significant so as to modify the nature or basis of the proceedings. Such practices are commonplace in legal practice, and regulatory authorities should be encouraged to modify or withdraw charges which, on receiving information from the opposing parties, become inefficacious or untenable. The charges withdrawn or amended by the Commissioner were not of such a nature that, at the time of the charges being laid, they had no reasonable prospects of success.
- Furthermore, the Tribunal does not consider that there was no reasonable likelihood of establishing Charges 1 and 6. Both charges turned on nuanced and complex points of law possessing novel or unusual properties. To the extent Charge 1 was the reason for the oral hearing, that factor alone cannot establish ‘exceptional circumstances’, in the sense described in Bone. An unsuccessful application at an oral hearing is eminently unexceptional.
- The proceedings brought by the applicant against the respondent were not inappropriate. The charges were not so numerous or uncertain as to be oppressive or prejudicial. Many of the objections of the respondent to the material filed by the applicant were unfounded. Ultimately, the respondent was found to have engaged in prescribed conduct in respect of four of the charges. These facts cannot give rise to ‘exceptional circumstances’.
- Although the Tribunal acknowledges that the applicant filed more material than was required, it was not so manifestly inappropriate as to constitute ‘exceptional circumstances’ justifying a departure from the standard orders.
- The respondent refers to the personal and punitive consequences of the proceedings in respect of his reputational interests, financial situation, and professional affairs. Such factors are an unexceptional and inevitable corollary of professional disciplinary proceedings, judicial accountability and transparency, and the (unfortunate) rising costs of access to justice.
- The applicant has failed to establish ‘exceptional circumstances’ on any of the grounds advanced in his submissions.
- Costs should be awarded to the applicant on the standard basis assessed in accordance with the Supreme Court Scale.
- It is the decision of the Tribunal that:
- The respondent pay the applicant its costs of and incidental to the disciplinary application in OCR358-12 in an amount to be assessed in accordance with the Supreme Court Scale.
 Legal Services Commissioner v Bone  QCA 179.
- Published Case Name:
Legal Services Commissioner v John-Paul Mould
- Shortened Case Name:
Legal Services Commissioner v Mould
 QCAT 32
02 Feb 2016