Legal Services Commissioner v Laylee & Devlin - [2017] QCAT 184

CITATION:

Legal Services Commissioner v Laylee & Devlin [2017] QCAT 184

PARTIES:	Legal Services Commissioner (Applicant)
v
Ms Angela Laylee Mr John Joseph Devlin (Respondents)

APPLICATION NUMBER:

OCR327-12 & OCR329-12

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice DG Thomas, President
Assisted by:
Ms Megan Mahon, Legal panel member
Dr Margaret Steinberg, Lay panel member

DELIVERED ON:

2 June 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

1. There be no order as to costs made against Angela Laylee.

2. The Legal Services Commissioner must pay John Joseph Devlin’s costs to be assessed on the standard basis on the Supreme Court Scale under the Uniform Civil Procedure Rules 1999 (Qld) in the manner that the costs would be assessed were the matter in the Supreme Court of Queensland.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – GENERALLY – where the charges brought by the Commissioner against the respondents were dismissed – where the respondents were found not to have engaged in unsatisfactory professional conduct or professional misconduct – where the respondents submit that the Commissioner should pay the costs of the proceedings – where the Commissioner may be ordered to pay costs where special circumstances exist pursuant to section 462(4) of the Legal Profession Act 2007 (Qld) – whether special circumstances exist and warrant such an order

Legal Profession Act 2007 (Qld) ss 418, 419, 462(4)
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32

Legal Services Commissioner v Atkins [2009] LPT 10
Legal Services Commissioner v Baker [2005] LPT 002
Legal Services Commissioner v Bone [2013] QCAT 550
Legal Services Commissioner v Hansen (No 2) [2008] LPT 10
Legal Services Commissioner v McClelland [2006] LPT 13
Legal Services Commissioner v Sing (No 2) [2007] LPT 005
New South Wales Bar Association v Tedeschi (No 3) [2003] NSWADT 174

REPRESENTATIVES (if any):

This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).

REASONS FOR DECISION

Charges, which were brought against the respondents, were dismissed.
The applicant and the respondents have made submissions regarding costs.
The applicant submits that there should be no order as to costs.[1] The respondents seek an order that the Commissioner pay their costs, awarded on an indemnity basis.[2]
[1]Submissions on behalf of the applicant in relation to costs filed 17 August 2016, paragraph 17.
[2]Submissions on behalf of the respondents in relation to costs filed 15 September 2016, paragraphs 3 & 34.

The submissions

Section 462(4) Legal Profession Act 2007 (Qld) (‘LPA’) provides that the Tribunal may make an order requiring the Commissioner to pay costs. It may do this only if it is satisfied that:
a) the Australian Legal Practitioner has not engaged in prescribed conduct; and
b) special circumstances warrant the making of the order.
The parties agree that, ordinarily, the Commissioner will not be ordered to pay costs only because the charges he pursues are…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Legal Services Commissioner v Laylee & Devlin

Details

AGLC: Legal Services Commissioner v Laylee & Devlin [2017] QCAT 184
Case: [2017] QCAT 184
Decision Date: 2 June 2017

CaseChat Overview and Summary

In the case of Legal Services Commissioner v Laylee & Devlin, the respondents, Angela Laylee and John Joseph Devlin, faced disciplinary charges brought forth by the Legal Services Commissioner. The charges were ultimately dismissed, with the court finding that neither respondent engaged in unsatisfactory professional conduct or professional misconduct. Following the dismissal of the charges, the respondents sought an order that the Commissioner should pay the costs of the proceedings, arguing that special circumstances warranted such an order under section 462(4) of the Legal Profession Act 2007 (Qld). The court was required to determine whether these special circumstances existed.

The central legal issue before the court was whether the special circumstances outlined in the legislation were present to justify an order for the Commissioner to pay the respondents' costs. The court considered the nature of the proceedings, the outcome, and the submissions made by the respondents regarding the appropriateness of the Commissioner bearing the costs. The court examined the evidence and arguments to assess whether the circumstances were indeed special enough to warrant such an order. Ultimately, the court found that while the charges were dismissed, the proceedings did not reach the threshold of special circumstances required to justify an order for the Commissioner to pay the respondents' costs.

The court found that although the charges were dismissed, the proceedings did not possess the special circumstances necessary to order the Commissioner to pay the respondents' costs. The court emphasised that the mere dismissal of charges was not sufficient to constitute special circumstances under the legislation. Consequently, the court dismissed the respondents' application for costs against the Commissioner. However, the court did make a specific order regarding the costs for John Joseph Devlin, directing that the Legal Services Commissioner must pay his costs to be assessed on the standard basis on the Supreme Court Scale under the Uniform Civil Procedure Rules 1999 (Qld), in the manner that the costs would be assessed were the matter in the Supreme Court of Queensland.

The court ordered that there be no order as to costs made against Angela Laylee. However, it did order that the Legal Services Commissioner must pay John Joseph Devlin’s costs to be assessed on the standard basis on the Supreme Court Scale under the Uniform Civil Procedure Rules 1999 (Qld).

Orders

Orders of the court

1. There be no order as to costs made against Angela Laylee.

2. The Legal Services Commissioner must pay John Joseph Devlin’s costs to be assessed on the standard basis on the Supreme Court Scale under the Uniform Civil Procedure Rules 1999 (Qld) in the manner that the costs would be assessed were the matter in the Supreme Court of Queensland.

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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