Legal Services Commissioner v Mould

CITATION: Legal Services Commissioner v Mould [2016] QCAT 32

PARTIES:	LEGAL SERVICES COMMISSIONER (Applicant)
v
JOHN-PAUL MOULD (Respondent)

APPLICATION NUMBER: OCR358-12

MATTER TYPE: Occupational Regulation Matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Carmody

DELIVERED ON: 2 February 2016

DELIVERED AT: Brisbane

ORDERS MADE:

THE TRIBUNAL ORDERS THAT:

1. 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.

CATCHWORDS:

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 [2014] 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

1. 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.

2. 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.

3. 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. 

4. 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. 

5. “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.

6. 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. 

7. 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.