Legal Services Commissioner v Bone

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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 2012

DIVISION:

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 made

ORDERS:

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 28

Attorney-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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Details
Case
[2014] QCA 179
Decision Date

CaseChat Overview and Summary

The Legal Services Commissioner brought proceedings against a lawyer, Bone, in the Queensland Civil and Administrative Tribunal (QCAT). The Commissioner alleged that Bone had engaged in professional misconduct and/or unsatisfactory professional conduct in relation to a will he had prepared and administered. The Commissioner initially brought eight charges against Bone, but later withdrew four, and subsequently withdrew a fifth charge, leaving two charges to be considered. QCAT dismissed the remaining charges and ordered the Commissioner to pay costs on an indemnity basis in relation to the withdrawn charges. The Commissioner appealed to the Queensland Court of Appeal against the costs orders made by QCAT.

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

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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