SUPREME COURT OF QUEENSLAND
CITATION:
Legal Services Commissioner v Bone [2014] QCA 179
PARTIES:
LEGAL SERVICES COMMISSIONER
(appellant)
v
PAUL ERNEST BONE
(respondent)FILE NO/S:
Appeal No 10704 of 2013
QCAT No 213 of 2012DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
Queensland Civil and Administrative Tribunal at Brisbane
DELIVERED ON:
1 August 2014
DELIVERED AT:
Brisbane
HEARING DATE:
6 May 2014
JUDGES:
Fraser, Gotterson and Morrison JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDERS:
1. The appeal be allowed.
2. The orders as to costs made by the Tribunal as to charges 3 to 8 be set aside.
3. There be no order as to the costs of charges 3 to 8.
4. There be no order as to the costs of the appeal.
CATCHWORDS:
PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – QUEENSLAND – PROCEEDINGS IN TRIBUNALS – ORDERS AND COSTS – where the appellant commissioner on 14 June 2012 brought an application for referral of disciplinary proceedings in QCAT under s 452 of the Legal Profession Act 2007 (LPA) – where the appellant commissioner particularised eight charges against the respondent practitioner alleging “professional misconduct and/or unsatisfactory professional conduct” arising out of a complaint brought by the beneficiary to a will prepared and administered by the respondent’s legal practice – where on 13 March 2013 the appellant commissioner withdrew charges 4 to 8 – where on 29 August 2013 the appellant commissioner withdrew charge 3 – where the matter was heard in QCAT on 11 September 2013 and reasons for its decision were delivered on 16 October 2013 – where QCAT ordered that the application for disciplinary proceedings referred to in charge 1 and 2 against the respondent be dismissed – where QCAT ordered costs be paid by the applicant commissioner in respect of charge 3 on an indemnity basis after 31 May 2013 and charges 4 to 8 up to the time of their withdrawal on an indemnity basis – whether QCAT erred in finding “special circumstances” existed within the meaning of s 462(4) of the LPA to make an order for costs against the appellant commissioner – whether QCAT erred in making an order for costs on an indemnity basis against the applicant commissioner
Legal Profession Act 2007 (Qld), s 3, s 416, s 433, s 434, s 435, s 439, s 446, s 448, s 450, s 452, s 453, s 455, s 456, s 457, s 459, s 462, s 462(4)(a)
Legal Profession (Solicitors) Rules 2007 (Qld), r 9, r 10, r 28Attorney-General v Bax [1999] 2 Qd R 9; [1998] QCA 89, cited
Attorney-General (Qld) v Francis (2008) 187 A Crim R 124; [2008] QCA 243, considered
Baker v Legal Services Commissioner (No 2) [2006] 2 Qd R 249; [2006] QCA 145, considered
Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 531, considered
Di…
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- Case
- [2014] QCA 179
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether QCAT erred in finding that "special circumstances" existed within the meaning of s 462(4) of the Legal Profession Act 2007 (LPA) to make an order for costs against the Commissioner. Additionally, the Court had to determine if QCAT erred in making an order for costs on an indemnity basis against the Commissioner. The Commissioner argued that QCAT had no jurisdiction to make an order for costs against the Commissioner because there were no "special circumstances" as required by s 462(4) of the LPA.
The Court held that QCAT erred in finding that "special circumstances" existed to justify an order for costs against the Commissioner. The Court found that the Commissioner's decision to withdraw charges 4 to 8, and later charge 3, did not constitute "special circumstances" as envisaged by the legislature. The Court held that the withdrawal of charges did not amount to an abuse of process, nor did it demonstrate a lack of bona fides on the part of the Commissioner. Therefore, the Court held that QCAT erred in making an order for costs on an indemnity basis against the Commissioner in relation to charges 3 to 8.
The Court allowed the appeal and set aside the orders as to costs made by QCAT in relation to charges 3 to 8. The Court made no order as to the costs of charges 3 to 8 and no order as to the costs of the appeal.
Orders
Orders of the court
1. The appeal be allowed.
2. The orders as to costs made by the Tribunal as to charges 3 to 8 be set aside.
3. There be no order as to the costs of charges 3 to 8.
4. There be no order as to the costs of the appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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