Lavercombe v Legal Services Commissioner [2026] QCAT 163 | Case summary

Queensland Civil and Administrative Tribunal|2026-04-08

PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - DISCIPLINARY PROCEEDINGS - QUEENSLAND - PROCEEDINGS IN TRIBUNALS - where the applicant was found to have engaged in unsatisfactory professional conduct by the Legal Practice Committee - where the applicant sought a merits review of the decision - where the Tribunal dismissed the discipline application on review - where the applicant seeks an award of indemnity costs - whether the Tribunal's jurisdiction to awards costs is by virtue of s 462 of the Legal Profession Act 2007 or ss 100 and 102 of the Queensland Civil and Administrative Tribunal Act 2009 - whether the applicant should be awarded costs - whether the applicant should be awarded costs on an indemnity basis

Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225

Ghougassian v Fairfax Community Newspapers Pty Ltd [2015] NSWCA 307

Hafertepen v Network Ten Pty Ltd [2020] FCA 1456

Hamod v State of New South Wales [2002] FCA 424

Health Ombudsman v du Toit [2024] QCA 235

Herron v Attorney-General for NSW (1987) 8 NSWLR 601

J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA Branch) (No 2) [1993] FCA 70

Lavercombe v Legal Services Commissioner [2023] QCAT 58

Lavercombe v Legal Services Commissioner [2024] QCAT 440

Lyons v Dreamstarter Pty Ltd [2011] QCATA 142

Lavercombe v Legal Services Commissioner [2023] QCAT 356

Legal Services Commissioner v Atkins [2009] LPT 10

Legal Services Commissioner v Bone [2014] QCA 179

Legal Services Commissioner v Madden [2008] QCA 301; [2009] 1 Qd R 149

Legal Services Commissioner v Sewell [2023] QCAT 94

Owen v Menzies [2012] QCA 170

Palmer v Parbery [2018] QCA 268

Pennisi v Legal Services Commissioner [2023] QCA 234

Powell v Queensland University of Technology [2017] QCA 200

Tamawood Limited v Paans [2005] QCA 111; [2005] 2 Qd R 101

Zelcliff Pty Ltd v Container Exchange (Qld) Ltd [2022] QSC 239

Mr A Morris KC, instructed by Bartley Cohen Solicitors

Mr D de Jersey KC, instructed by Legal Services Commissioner

[1] The respondent brought proceedings against the applicant by way of a discipline application filed with the Legal Practice Committee of Queensland ("Committee"). The Committee found that the applicant engaged in unsatisfactory professional conduct. The applicant has successfully applied to this Tribunal for a review of the Committee's decision. He now seeks an order for costs for all stages of the proceedings, on an indemnity basis.

[2] Ms Emma Thompson owned a lot in a development called Arila Lodge. Debt recovery proceedings were instituted in the name of its Body Corporate against her, in the District Court. Mr Jason Carlson, of Grace Lawyers, acted on behalf of the Body Corporate, in relation to the litigation.

[3] Ms Barbara Conaghan was also a lot owner in the development. She was a member of the Committee of the Body Corporate and held the positions of secretary and treasurer.

[4] Ms Thompson raised an issue that the District Court proceedings had not been validly commenced, because they were not authorised by a special resolution of the Body Corporate. An extraordinary general meeting ("EGM") of the Body Corporate was called to pass such a resolution, initially to be held on 30 March 2020, but adjourned to 6 April 2020, because of a lack of a quorum.

[5] At about this time, Ms Thompson retained the applicant to act for her in relation to the dispute with the Body Corporate. The applicant made contact with Ms Conaghan. That resulted ultimately in the filing of the discipline application.

[6] The discipline application alleged that the applicant had dealt directly with the client of another solicitor, in breach of r 33 of the Australian Solicitors' Conduct Rules 2012 ("ASCR"). Particulars of the charge identified Ms Conaghan as "a client of the law practice Grace Lawyers in her capacity as secretary of the Body Corporate".[1] The particulars identified the dealings as a telephone call from the applicant to Ms Conaghan, unanswered; and a subsequent conversation between Ms Conaghan and the applicant. The particulars also alleged that "the direct dealing with Ms Conaghan occurred while she was the client of Grace Lawyers and Mr Carlson" (together referred to as "the solicitors"). The discipline application also alleged that the contact did not occur in any of the circumstances which constitute an exception to the operation of r 33.

[7] The Committee found that the applicant dealt directly with a client of another practitioner in breach of the ASCR.[2]

[8] The applicant applied to this Tribunal for a review of the Committee's decision. The applicant and respondent agreed that there should be a separate determination to identify the client of the solicitors at the time of the contact between the applicant and Ms Conaghan.[3]

[9] The hearing of this question came before Boddice J (as his Honour then was). His Honour determined that the assertion in the discipline application that Ms Conaghan was the client of Grace Lawyers was factually incorrect and unsupported by the evidence.[4] He also determined that the client was the Body Corporate (and not Ms Conaghan). The respondent's contention was therefore not established, and was contrary to the evidence. His Honour concluded that there would be no injustice in ordering that the charge be dismissed. However, his Honour entertained submissions as to the orders to be made. As a result, he ordered that the respondent file and serve any application for leave to amend the charge by a specified date, and gave directions for subsequent steps.[5]

[10] That application (more correctly identified as an application to vary the discipline application)[6] came before Williams J. Her Honour granted leave to vary the discipline application. As varied, the application alleged that the applicant dealt directly with the client of another solicitor, being the Body Corporate for Arila Lodge, by contacting it through its agent, Ms Barbara Conaghan.[7] No doubt with reference to the allegation in the charge that the applicant had dealt with another solicitor's client through its agent, the particulars of the varied charge alleged that Ms Conaghan was authorised to instruct the solicitors in the litigation against Ms Thompson.[8] As mentioned, on review the charge was dismissed.

[11] As a consequence of the outcome of the review application, the applicant sought his costs.

[12] The Queensland Civil and Administrative Tribunal Act 2009 (Qld) ("QCAT Act") includes the following provisions relating to costs:

Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party's own costs for the proceeding.

...

Costs against party in interests of justice

(1) The tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party to the proceeding if the tribunal considers the interests of justice require it to make the order.

(2) However, the only costs the tribunal may award under subsection (1) against a party to a proceeding for a minor civil dispute are the costs stated in the rules as costs that may be awarded for minor civil disputes under this section.

(3) In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following -

(a) whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including as mentioned in section 48(1)(a) to (g);

(b) the nature and complexity of the dispute the subject of the proceeding;

(c) the relative strengths of the claims made by each of the parties to the proceeding;

(d) for a proceeding for the review of a reviewable decision -

(i) whether the applicant was afforded natural justice by the decision-maker for the decision; and

(ii) whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits;

(e) the financial circumstances of the parties to the proceeding;

(f) anything else the tribunal considers relevant.

[13] The applicant's right to apply to this Tribunal for a review of the Committee's decision is established by s 469 of the Legal Profession Act 2007 (Qld) ("LP Act"), which is as follows:

Application to tribunal for review of committee's decision

(1) A party dissatisfied with a final decision of the committee about a discipline application may apply, as provided under the QCAT Act, to the tribunal for a review of the decision.

(2) In the proceeding before QCAT for the review -

(a) the committee is not a party; and

(b) the commissioner is a party.

[14] There does not appear to be an express conferral of jurisdiction on the Tribunal to review the Committee's decision. The conferral appears to be implied by s 469.

[15] The following provisions in chapter 1 of the QCAT Act relate to this Tribunal's review jurisdiction:

Division 3 Review jurisdiction

Generally

(1) The tribunal's review jurisdiction is the jurisdiction conferred on the tribunal by an enabling Act to review a decision made or taken to have been made by another entity under that Act.

(2) For this Act, a decision mentioned in subsection (1) is a reviewable decision and the entity that made or is taken to have made the decision is the decision-maker for the reviewable decision.

When review jurisdiction exercised

(1) The tribunal may exercise its review jurisdiction if a person has, under this Act, applied to the tribunal to exercise its review jurisdiction for a reviewable decision.

(2) A person may apply to the tribunal to exercise its review jurisdiction for a reviewable decision, and the tribunal may deal with the application, even if the decision is also the subject of a complaint, preliminary inquiry or investigation under the Ombudsman Act 2001.

Exercising review jurisdiction generally

In exercising its review jurisdiction, the tribunal -

(a) must decide the review in accordance with this Act and the enabling Act under which the reviewable decision being reviewed was made; and

(b) may perform the functions conferred on the tribunal by this Act or the enabling Act under which the reviewable decision being reviewed was made; and

(c) has all the functions of the decision-maker for the reviewable decision being reviewed.

Review involves fresh hearing

(1) The purpose of the review of a reviewable decision is to produce the correct and preferable decision.

(2) The tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.

...

Functions for review jurisdiction

(1) In a proceeding for a review of a reviewable decision, the tribunal may -

(a) confirm or amend the decision; or

(b) set aside the decision and substitute its own decision; or

(c) set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate.

(2) The tribunal's decision under subsection (1)(a) or (b) for a reviewable decision -

(a) is taken to be a decision of the decision-maker for the reviewable decision except for the tribunal's review jurisdiction or an appeal under part 8; and

(b) subject to any contrary order of the tribunal, has effect from when the reviewable decision takes or took effect.

(3) The tribunal may make, to the chief executive of the entity in which the reviewable decision was made, written recommendations about the policies, practices and procedures applying to reviewable decisions of the same kind.

(4) If the tribunal makes written recommendations under subsection (3) and the chief executive is not the decision-maker for the reviewable decision, the tribunal must give a copy of the recommendations to the decision-maker.

(5) In this section -

chief executive includes chief executive officer.

[16] The LP Act contains the following provision relating to costs:

(1) A disciplinary body must make an order requiring a person whom it has found to have engaged in prescribed conduct to pay costs, including costs of the commissioner and the complainant, unless the disciplinary body is satisfied exceptional circumstances exist.

(2) A disciplinary body may make an order requiring a person whom it has found not to have engaged in prescribed conduct to pay costs, including costs of the commissioner and the complainant, if the disciplinary body is satisfied that -

(a) the sole or principal reason why the proceeding was started in the disciplinary body was the person's failure to cooperate with the commissioner or a relevant regulatory authority; or

(b) there is some other reason warranting the making of an order in the particular circumstances.

(3) Without limiting subsection (2), a disciplinary body that makes an order under section 460 may make a further order requiring an Australian legal practitioner, in relation to whom the order under section 460 relates, to pay costs in relation to the order.

(4) A disciplinary body may make an order requiring the commissioner to pay costs, but may do so only if it is satisfied that -

(a) the Australian legal practitioner or law practice employee has not engaged in prescribed conduct; and

(b) the body considers that special circumstances warrant the making of the order.

(5) An order for costs -

(a) may be for a stated amount; or

(b) may be for an unstated amount but must state the basis on which the amount must be decided.

(6) An order for costs may state the terms on which costs must be paid.

(7) The only other circumstances in which the tribunal exercising its jurisdiction in relation to a disciplinary application may award costs are the circumstances stated in the QCAT Act, section 103 or 104.

_Note - _

See the QCAT Act, sections 106 to 109 for provisions about the tribunal awarding costs.

engaged in prescribed conduct means engaged in unsatisfactory professional conduct or professional misconduct, or engaged in misconduct in relation to a relevant practice, as mentioned in section 456(1) or 458(1).

[17] Section 462 of the confers a power on a "disciplinary body" to make an order for costs and regulates the exercise of that power. The expression "disciplinary body" is defined in sch 2 of the LP Act as follows

disciplinary body means either of the following entities to which the commissioner makes a discipline application -

(a) the tribunal;

(b) the committee, other than the committee exercising advisory functions as mentioned in part 7.3, division 4.

[18] It is clear that the expression "disciplinary body" refers to the entity to whom the respondent makes a discipline application,[9] in this case, the Committee. It follows that the Committee's power to make a costs order was regulated by s 462.

[19] Section 100 of the QCAT Act states the usual position as to the costs of a "party to a proceeding", which is that the party must bear its own costs "for the proceeding". The term "proceeding" is defined:

(a) generally - means a proceeding before the tribunal, including an appeal before the appeal tribunal and a proceeding relating to an application for leave to appeal to the appeal tribunal[10]

[20] It is apparent that s 100 relates to the costs of a proceeding before this Tribunal, and states that (generally) each party is to pay its own costs.

[21] The interaction between these provisions is to be understood by reference to s 6 of the QCAT Act. It includes the following:

Relationship between this Act and enabling Acts generally

(1) This Act provides for the tribunal's jurisdiction and related functions, and the practices and procedures for proceedings before the tribunal.

(2) An enabling Act is -

(a) an Act, other than this Act, that confers original, review or appeal jurisdiction on the tribunal; or

(b) subordinate legislation, other than subordinate legislation under this Act, that confers review jurisdiction on the tribunal.

(3) An enabling Act conferring original jurisdiction on the tribunal will generally state the tribunal's functions in the jurisdiction, which may add to, otherwise vary, or exclude functions stated in this Act.

(4) An enabling Act that is an Act conferring review jurisdiction on the tribunal may state the tribunal's functions in the jurisdiction, which may add to, otherwise vary, or exclude functions stated in this Act.

(5) An enabling Act conferring review jurisdiction on the tribunal may also confer jurisdiction on the tribunal to stay a decision made under the enabling Act while the decision is being reviewed under the enabling Act by an entity other than the tribunal.

(6) An enabling Act conferring appeal jurisdiction on the tribunal may state the tribunal's functions in the jurisdiction, which may add to, otherwise vary, or exclude functions stated in this Act.

(7) An enabling Act that is an Act may also include provisions about the following matters, which may add to, otherwise vary, or exclude provisions of this Act about the matters -

(a) requirements about applications, referrals or appeals for jurisdiction conferred by the enabling Act;

_Examples - _

the period within which an application, referral or appeal must be made

documents required to accompany an application, referral or appeal

(b) the conduct of proceedings for jurisdiction conferred by the enabling Act, including practices and procedures, and the tribunal's powers, for the proceedings;

_Examples - _

the availability or non-availability of stays of the operation of a decision the subject of a proceeding

persons who must be notified of a proceeding, a hearing of a proceeding or the tribunal's decision in a proceeding

additional persons who are a party to a proceeding

persons who may be represented in a proceeding without the tribunal's leave

hearings that must be held in private

(c) the enforcement of the tribunal's decisions in a proceeding for jurisdiction conferred by the enabling Act.

[22] The LP Act is an enabling Act. It confers original jurisdiction on the Tribunal.[11] It also confers review jurisdiction on the Tribunal.[12]

[23] Section 6 of the QCAT Act provides that an enabling Act may state functions for the Tribunal, which may add to, vary or exclude the functions stated in the QCAT Act. The word "function" is defined to include power;[13] and no doubt includes the power to award costs. However, s 6 recognises that it will do so separately for original jurisdiction, and for review jurisdiction.[14]

[24] Read with the definition of "disciplinary body", s 462 of the LP Act states the power of the Tribunal to award costs in its original jurisdiction. To that extent, it excludes the power to order costs found in s 102 of the QCAT Act.[15]

[25] However, the LP Act is silent as to the Tribunal's function or power relating to costs, for its review jurisdiction. It follows that ss 100 and 102 of the QCAT Act apply to a review proceeding before the Tribunal.[16]

[26] Accordingly, I conclude that for proceedings commenced in this Tribunal by way of review, s 462 of the LP Act is not the source of the Tribunal's power to order costs, nor does it regulate the making of such an order. Rather, for such proceedings, the power to award costs, and the regulation of that power, are identified by reference to ss 100 and 102 of the QCAT Act.

[27] My attention was drawn to a decision of Williams J, apparently unpublished, which considered that s 462 regulated orders for costs of review proceedings.[17] Boddice J acted on the same basis.[18] His Honour does not appear to have considered whether s 102 of the QCAT Act might apply. Without the benefit of the reasons of Williams J, it is not clear whether her Honour considered the language of the statute, which has just been discussed. It is therefore difficult to know what weight should be given to her Honour's decision. The statutory language appears to me to be relatively clear. Notwithstanding my respect for their Honours' decisions, it seems to me I should not follow them.

[28] While s 100 of the QCAT Act states the usual position for the costs of a proceeding before the Tribunal, it expressly recognises that the QCAT Act might provide otherwise, that is, it might make some provision other than that each party is to pay its own costs. Section 102 provides otherwise, conferring a power to make an order that one party pay the costs of another party to the proceeding, again a reference to a proceeding before this Tribunal, if the Tribunal considers the interests of justice require it to make the order.

[29] The costs sought by the applicant include the costs of the proceedings before the Committee. Section 102, in my view, applies to proceedings in this Tribunal, not proceedings before the Committee. The power of the Committee to award costs is defined by s 462 of the LP Act. By s 19 of the QCAT Act, the Tribunal "has all functions of the decision-maker for the reviewable decision being reviewed". No doubt, that extends to the Committee's power to order costs. Accordingly, in my view, this Tribunal may make an order for costs of the proceedings before the Committee, by virtue of s 462 of the LP Act.

[30] On that basis, it is necessary to give separate consideration of the application for costs of the proceedings before the Committee, and the application for costs of the review in this Tribunal.

[31] For the applicant, it was submitted that he should have the costs of the proceedings before the Committee, and that these costs should be awarded on an indemnity basis.

[32] It was submitted for the applicant, that for the purposes of s 462(4) of the LP Act, there were special circumstances warranting the making of an order for costs. The charge preferred by the respondent before the Committee was misconceived and was bound to fail. The allegation that Ms Conaghan was (as a matter of fact) the client of Grace Lawyers had no evidentiary basis, and the respondent could not properly have concluded the contrary. The respondent was given the opportunity before the Committee to articulate a different case but chose not to do so. As a result of the decision by the respondent not to amend the charge, once the review was determined adversely to her, she sought leave to make an amendment which could (and should) have been made when the matter was before the Committee.[19] The entire costs of the proceedings before the Committee were thrown away, and the costs of the review were necessarily incurred by the applicant. The respondent's decision appears to have been a tactical decision, to receive vindication for her view of the law, and to avoid the risk that the disciplinary application might succeed other than on the basis on which it was originally formulated.[20]

[33] Earlier, the applicant submitted that costs should be ordered in respect of the proceedings before the Committee because the respondent formulated a charge which was wrong in fact, and which the respondent knew to be wrong in fact, containing a false allegation that Ms Conaghan was the client of the solicitors. This error was based on a fundamental misconception, namely, that because Ms Conaghan was one of the persons who conveyed instructions from the Body Corporate to Grace Lawyers, this had the effect, as a matter of law, that Ms Conaghan became the client of those lawyers.[21]

[34] The respondent submitted that none of the contentions advanced by the applicant demonstrated special circumstances for the purposes of s 462(4) of the LP Act.[22] While it was true that the charge was ultimately found to be "wrong in fact", the mere fact that a charge fails, or a particular factual allegation is not sustained, cannot establish special circumstances. No evidence was identified by the applicant to show that the respondent knew the charge to be wrong in fact.[23] Likewise, the submission that the respondent's error was based on a legal misconception, namely, that because Ms Conaghan was one of the persons who conveyed instructions from the Body Corporate to Grace Lawyers, this had the effect, as a matter of law, that Ms Conaghan became their client; such an error does not demonstrate special circumstances. It would be a peculiar result for special circumstances to be found to exist in relation to a legal misconception, when it was not so found by the Committee. The high level of representation chosen by the applicant, and the extent of submissions made on his behalf, undermine the submission that there was a fundamental and obvious error at the heart of the discipline application.[24] No evidence was identified by the applicant to support his submission that the respondent persisted with the charge, knowing it to be factually wrong, and accordingly the submission is without foundation.[25] Since the respondent's case succeeded before the Committee, the applicant does not meet the criteria for an award of indemnity costs.[26] The respondent also relied on her efficient conduct of the proceedings, in opposition to an award of costs on the indemnity basis.[27]

[35] The operation of s 462(4) was considered by Byrne SJA in Legal Services Commissioner v Atkins ("Atkins").[28] His Honour's approach was discussed by the Court of Appeal in Legal Services Commissioner v Bone ("Bone").[29] The following is taken from the judgment of Morrison JA (with whom Fraser and Gotterson JJA agreed):

[55] The question of what might constitute "special circumstances" within the meaning of s 462(4) of the Act, has received some attention. In Legal Services Commissioner v Atkins the Legal Practice Tribunal had to consider a case where six charges were brought and of those one was withdrawn and the others failed. The practitioner sought his costs on an indemnity basis contending that there were special circumstances within s 462(4). There were a variety of arguments advanced to support that contention, but one central theme was that, in one way or the other, the various charges were such that the LSC knew facts indicating that they would fail, that they had no real prospects of success, or were hopeless. On one charge which depended upon cleared funds being made available in a trust account, it was contended that by a particular date the LSC knew that the funds could not have been cleared by the relevant date, and therefore should have conceded that the charge was unmaintainable. Instead the LSC persisted. It was also argued that there was excessive delay between when the charges were file, and the hearing began.

[56] Byrne SJA had this to say about special circumstances:

"[80] The mere fact that a Discipline Application fails, or that a particular factual allegation is not sustained, cannot establish "special circumstances ...". After all, the general rule is that a practitioner found not guilty is not entitled to costs.

[81] But if a charge has no substantial prospect of success, and that ought reasonably to have been appreciated by the Commissioner, such 'special circumstances' do arise. Similarly, a practitioner ought not to be vexed with the trouble and expense of defending an allegation of important fact that the Commissioner, as he ought to have realised if properly advised, had no real prospect of establishing.

[82] When the Application was filed, the Commissioner already had information showing that there was no substantial chance of proving to the requisite standard that cleared funds were available on the date for completion. Moreover, the investigation for which Mr Atkins had been pressing for many months before the Application was brought, would - presumably at little expense to the Commission - have demonstrated that the cleared funds contention was baseless."

[57] Then, under the heading "Absence of Reasonable Likelihood of Success", Byrne SJA made the finding that there were special circumstances in this way:

"[83] In the result, the deceit charges 1, 3 and 5 had a sufficiently substantial prospect of success to have justified their prosecution before the Tribunal. But the cleared funds issue should never have featured in the Application; charge 4 should not have been brought; the withdrawn charge should have been abandoned about three months before it was; and charge 2 should not have been prosecuted beyond the stage where agreed facts inevitably meant that there was no longer a substantial prospect of an adverse finding against Mr Atkins on it.

[84] The circumstances are sufficiently special as to warrant an order for costs."

...

[64] In Atkins costs were awarded on an indemnity basis. The reason for applying that basis of assessment was explained by Byrne SJA as follows: 'The "special circumstances" that warrant the costs order involve the notion that, at various times before the hearing, the Commissioner, appropriately advised, should have recognised that there was no reasonable likelihood of success on the failed charges or the cleared funds allegation. On this basis, there is a proper foundation for the costs to be assessed on an indemnity basis.'

[65] It appears from that passage, in my respectful opinion correctly, that consideration of the basis of assessment of the costs is a separate matter from establishing that special circumstances exist to reverse the general rule. It may be that what constitutes 'special circumstances' in order to enliven the ability to order costs, is the same as the ground or foundation for enlivening the discretion to order costs on an indemnity basis, but that will not necessarily be the case. It should not be assumed that if 'special circumstances' exist so as to enliven the power to order costs, that that automatically means on an indemnity basis. Separate consideration needs to be given to that issue.

[66] In my view Atkins and Baker establish the following propositions:

(a) the mere fact that a charge fails, or a particular factual allegation is not sustained, cannot establish "special circumstances", because of the general rule that a practitioner found not guilty is not entitled to costs;

(b) if a charge has no substantial prospect of success, and that ought reasonably to have been known by the LSC, that may amount to special circumstances;

(c) if the LSC knew or ought to have realised, if properly advised, that a particular allegation of fact had no real prospect of being established, that may amount to special circumstances; and

(d) where charges have a sufficiently substantial prospect of success to justify their prosecution, that will not amount to special circumstances.[30]

[36] In Pennisi v Legal Services Commissioner,[31] Bowskill CJ (with whom Dalton JA and Kelly J agreed) adopted the propositions formulated by Morrison JA, for the purpose of comparing the expression "special circumstances" in s 462(4), with the expression "exceptional circumstances" found in s 462(1). Her Honour also said:

[56] Although in another context, the words "special" and "exceptional" might seem synonymous, it is clearly to be inferred the legislature intended different meanings by choosing different words in s 462(1) and (4). Whilst it is difficult to articulate that difference precisely, the context supports the conclusion that "special" imposes a higher bar - because it appears in the section which confers power to make an order for costs against the Commissioner. Given the protective purpose of the provision, and the rule, reflected in s 462(1), that a practitioner pays the costs of disciplinary proceedings necessitated by their conduct, with something "exceptional" required to displace that, it follows that something even more exceptional - or special - is required before an order would be made against the Commissioner.[32]

[37] It has not been suggested that her Honour's comparison of the two expressions affects the propositions formulated by Morrison JA.

[38] The respondent is correct to point to the statement by Morrison JA to the effect that the failure of a charge or of a particular allegation is not sufficient to establish special circumstances. That, however, is not determinative in the present case.

[39] The charge, as formulated before the Committee, was that the applicant dealt directly with the client of another solicitor, in breach of r 33 of the ASCR. The client was identified as Ms Conaghan. The allegation that Ms Conaghan was the client of Grace Lawyers was central to the charge.

[40] When the matter came before Boddice J, his Honour found that an assertion that Ms Conaghan was the client Grace Lawyers "was factually incorrect and unsupported by the evidence".[33] With respect, his Honour's finding appears to be correct. Indeed, it is difficult to see how a contrary conclusion could be reached. As was pointed out in the applicant's submissions before the Committee[34] and was advanced in cross-examination,[35] Ms Conaghan, in her personal capacity-

(a) was not named or identified as a client by Grace Lawyers;

(b) had not entered into a client agreement with Grace Lawyers;

(c) was not liable for any professional fees payable to Grace Lawyers;

(d) was not a party to any proceeding in which Grace Lawyers were acting;

(e) had no interest in the matters being handled by Grace Lawyers on behalf of the body corporate, except to the extent that, as a lot-owner, she held, through the body corporate, the same interest as every other lot owner.

[41] As Boddice J observed, the respondent's case was that Grace Lawyers was acting for the Body Corporate.[36] The contention of Ms Thompson that the Body Corporate had not properly resolved to engage Grace Lawyers[37] may for present purposes be ignored, as it does not change the case the respondent was advancing. It is trite to say that a Body Corporate and its members are separate legal entities; so that the engagement by a Body Corporate of solicitors to act for it does not have the consequence that the solicitors are engaged to act for the members of the Body Corporate in their personal capacities. The respondent's case was inconsistent with the charge.

[42] Well before the commencement of the proceedings before the Committee, the applicant's solicitors made it clear that the applicant contended that Ms Conaghan was not a client of Grace Lawyers. In his original response to the discipline application,[38] and subsequently,[39] the applicant denied that Ms Conaghan was a client of the solicitors. From a very early stage, the respondent was on notice that this allegation was in issue. In those circumstances, it would be expected that she would give careful consideration to the question whether the allegation had a proper basis.

[43] There is no direct evidence of the respondent's state of mind at any relevant time. She (or, at least, those having conduct of this matter on her behalf) should have given careful consideration to the question whether the allegation that Ms Conaghan was a client of Grace Lawyers had any real prospect of being established. No doubt the respondent placed before the Committee such evidence as was available in support of the charge. There was none that supported the allegation that Ms Conaghan was a client of Grace Lawyers. The respondent should have realised, if properly advised, that there was no real prospect that the allegation would be established. The same is true of the charge that was founded on it.

[44] As previously mentioned, the difficulties with the charge were highlighted by the applicant's submissions for the Committee hearing; the cross-examination of Ms Conaghan; and the oral submissions on behalf of the applicant at the hearing. Nevertheless, the respondent persisted with the charge as framed. That resulted in an erroneous finding against the applicant and put him in a position where he had to accept that finding (a product of the course the respondent chose to take in relation to the discipline application), or go to the trouble and expense of instituting the review proceedings. In my view, these matters are sufficient to constitute special circumstances, so as to enliven the jurisdiction to award costs.

[45] The respondent has submitted that because the Committee found that Ms Conaghan was a client of Grace Lawyers, special circumstances warranting a costs order could not be held to exist. Orally, the respondent submitted that the finding demonstrated that reasonable minds might differ on the question whether the charge had any reasonable prospect of success.[40] The submission relied on the finding itself, rather than any underlying reasoning which led to it. The finding was itself unknown to the respondent until after the hearing before the Committee. As the applicant's submissions in reply pointed out, the finding is not inconsistent with the conclusion that the respondent's allegation was bound to fail.[41] As to the oral submission, whether it is correct depends upon whether the Committee determined the charge as framed; and whether there was a reasonable basis for doing so. As will appear, the Committee did not decide the charge as framed. Nor was there a reasonable basis for concluding that Ms Conaghan was the client of the solicitors. This matter will be the subject of further discussion, but does not answer the applicant's contention that special circumstances are shown in relation to the proceedings before the Committee.

[46] The question whether costs should be awarded on an indemnity basis requires separate consideration;[42] though the matters which constitute special circumstances may also provide a foundation for an order for costs on the indemnity basis. The respondent submitted nothing in the submissions made on behalf of the applicant engaged the considerations identified by Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd:

I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v Weekes [1989] FCA 540; (1989) 92 ALR 131 at 152); evidence of particular misconduct that causes loss of time to the Court and to other parties (French J in Tetijo); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp (supra)); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (eg Messiter v Hutchinson (1987) 10 NSWLR 525; Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 at 724 (Court of Appeal); Crisp v Keng (unreported, Court of Appeal, NSW, Kirby P, Priestley JA, Cripps JA, No 40744/1992, 27 September 1993) ... Other categories of cases are to be found in the reports. Yet others to arise in the future will have different features about them which may justify an order for costs on the indemnity basis. The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis.[43]

[47] The applicant referred to other cases where the question of indemnity costs has been considered. In Palmer v Parbery & Ors ("Palmer v Parbery"),[44] Morrison JA had to deal with an application for indemnity costs following the late withdrawal of a stay application. His Honour said:

Costs are at the discretion of the court: r 681(1) of the Uniform Civil Procedure Rules 1999 (Qld). The ordinary rule is that costs are assessed on the standard basis, and a party who seeks to have indemnity costs awarded must show that there is some "special or unusual feature" which warrants such an order. In Colgate Palmolive Company v Cussons some exploration was made of the sort of circumstances that might justify a finding that there was a sufficient special or unusual feature to warrant making an order for indemnity costs. Some examples proposed by Sheppard J included the commencement of an action in wilful disregard of known facts or clearly established law, the making of allegations which ought never have been made, and the undue prolongation of a case by groundless contentions. However, those were merely examples and the categories of cases where indemnity costs may be awarded are not closed.[45]

[48] His Honour considered that the application for a stay should be regarded as one which, had the relevant parties been properly advised, they would never have made. He considered that this should be taken into account when considering the unexplained abandonment of the application at the last minute.[46] His Honour cited passages from the judgment of Emmett JA in Ghougassian v Fairfax Community Newspapers Pty Ltd,[47] including the following:

Abandonment without explanation, in combination with other factors, may justify an order for indemnity costs. For example, where an action is commenced or continued in circumstances where the moving party, properly advised, ought to have known that there were no prospects of success, indemnity costs may well be appropriate.[48]

[49] Morrison JA considered it unreasonable to bring the stay application, and to persist with it.[49] His Honour concluded:

This is an appropriate case where the discretion should be exercised to order that the costs incurred in respect of the abandoned application for stay should be paid on the indemnity basis. Like Ghougassian, this was a case where the applicant, properly advised, should never have brought the application and it was abandoned at the last minute without any explanation being given for the abandonment. The inference I draw is that it was belatedly realised that there was no prospect of success. In those circumstances the unexplained abandonment warrants the making of the order for indemnity costs.[50]

[50] His Honour appears to have decided the application on the basis that it was unreasonable to bring (and maintain) the stay application, when it had no prospect of success; and the applicant, properly advised, should never have brought it.

[51] The applicant also referred to Zelcliff Pty Ltd v Container Exchange (Qld) Ltd.[51] There Kelly J was dealing with an application for costs on the indemnity basis, after the late discontinuance of an action. His Honour referred to Palmer v Parbery, stating that the decision needed to be considered in the context of its facts. His Honour noted the absence of any written offer by the defendant in the case before him, and the absence of any letter from the defendant outlining the difficulties in the plaintiff's case. In those circumstances, his Honour considered that the defendant was effectively obliged to demonstrate the objective unreasonableness of the plaintiff's conduct of the proceedings. His Honour was not prepared to make an indemnity costs order.

[52] The applicant also referred to Hafertepen v Network Ten Pty Ltd,[52] a decision of Katzman J. Her Honour stated:

Despite the breadth of the Court's discretion, an order for indemnity costs will not be made in the absence of some "special or unusual feature" which would justify a departure from the ordinary course: see, for example, Cirillo v Consolidated Press Property Ltd (formerly known as Citicorp Australia Ltd) (No 2) [2007] FCA 179 at [3] (Finn J). Such an order is normally reserved for cases where the Court wishes to indicate its disapproval of a party's conduct of the litigation: Dal Pont G E, Law of Costs (4th ed, LexisNexis Butterworths, 2018) at [16.46], citing Raja v Rubin [2000] Ch 274 at 289 (Peter Gibson LJ), with whom Clarke LJ and Hirst LJ agreed. It may be made "when the court takes the view that it was unreasonable for the party against whom the order is made to have subjected the innocent party to the expenditure of costs": Hamod v New South Wales [2002] FCAFC 97; 188 ALR 659 at [20] (Gray J, with Carr and Goldberg JJ agreeing at [26]-[27]); Melbourne City Investments Pty Ltd v Treasury Wine Estates Limited (No 2) [2017] FCAFC 116 at [3]- [5] (Jagot, Yates and Murphy JJ). Nevertheless, the order is intended to be compensatory, not punitive: Hamod at [20].[53]

[53] Her Honour found that "Ten's behaviour was unreasonable from the outset",[54] and awarded costs on the indemnity basis. This was not a case of late discontinuance or withdrawal.

[54] The applicant also referred to Hamod v State of New South Wales, where the Court said that indemnity costs are compensatory, made where it was unreasonable for the party against whom the order is made to have subjected the innocent party to the expenditure of costs.[55] Reference was also made by the applicant to J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA Branch) (No 2), where indemnity costs were ordered on the basis that the unsuccessful party persisted in what should have been seen, on a proper consideration, to be a hopeless case.[56]

[55] There is no reason to think that principles stated in cases of late withdrawal do not apply to cases pursued to final determination. Such persistence may more fully demonstrate, or even exacerbate, the unreasonableness of a party's conduct.

[56] The cases show that the categories of cases in which an indemnity costs order will be made are not closed. The bringing, or maintaining, of a proceeding by a party who, properly advised, ought to have known that there is no prospect of success, will often provide a proper basis for such an order. In view of what was said in Atkins, cited with apparent approval in Bone, it may be sufficient to show that the unsuccessful party, properly advised, should have recognised that there was no reasonable likelihood of success. That would be consistent with the view that indemnity costs may be awarded against a party who has conducted litigation unreasonably.

[57] In my view, the allegation that Ms Conaghan was the client of Grace Lawyers ought never to have been made. There has been no suggestion of any evidentiary basis for it; and the case advanced by the respondent that the Body Corporate was the client of Grace Lawyers does not provide any foundation for it. Reference has already been made to occasions when the respondent drew attention to this question, from a letter before the commencement of the discipline application, through to and including the hearing before the Committee. The respondent's persistence with the application, on the basis of the allegations it contained, was unreasonable, and sufficient to justify an indemnity order for costs.

[58] Any efficiency shown by the respondent in the conduct of the proceedings is hardly an answer to the application for indemnity costs.

Costs of review proceedings up to separate determination

[59] The applicant called these costs the appeal costs.[57] However, it was made clear during oral submissions on 31 July 2025 that this expression refers to the costs of the proceedings in this Tribunal up to and including the determination by Boddice J.[58] The applicant sought these costs on the indemnity basis. The applicant relied upon the matters which were said to show that there were special circumstances warranting an order for costs of the hearing before the Committee and some additional matters. They included (with some overlap) that:

(a) the charge was misconceived;

(b) the respondent was given the opportunity before the Committee to articulate a different case, but expressly disavowed an intention to do so;

(c) the applicant had genuinely attempted to enable and help the Committee to make the decision on the merits (invoking s 102(3)(d)(ii) of the QCAT Act);

(d) the respondent persisted with the charge in its original form, notwithstanding the opportunity to amend, which had the consequence that the entire costs of the review application were necessarily incurred by the applicant;

(e) the respondent's decision not to vary the charge appears to have been tactical, seeking to vindicate the respondent's view of the law;

(f) the Committee's reasons for its decision added nothing to the credibility of the case presented by the respondent on the original charge or the separate determination, and the review of the Committee's decision succeeded entirely on a point of law, and did not involve any contentious issue of fact, or exercise of discretion;

(g) the respondent's view on the question of law was plainly wrong;

(h) the respondent is a model litigant, and should she choose to undertake test proceedings, she should be prepared to pay the costs if the proceedings are unsuccessful; and

(i) the cost should be on an indemnity basis, because the respondent persisted with a case which, when properly advised, she would have known was bound to fail.

[60] For the respondent, it was submitted that the applicant's submissions should not be accepted because the Committee found that the applicant had dealt directly with the client of another practitioner. The fact that the charge failed is not itself a special circumstance. There is no foundation for the proposition that the respondent cannot resist paying costs because she is a model litigant and was testing a proposition of law. There is no foundation for the contention that properly advised, the respondent ought to have anticipated the decision reached by Boddice J, particularly since the Committee took a different view.

[61] The costs application for this part of the proceeding is to be determined under ss 100 and 102 of the QCAT Act, the provisions of which have been set out in earlier in these reasons. They have been authoritatively considered by the Court of Appeal in Health Ombudsman v du Toit.[59]

[62] Their Honours stated that, by providing that each party must bear its own costs, s 100 of the QCAT Act "reflects the established difference between court proceedings and proceedings conducted before a tribunal";[60] noting that in courts the usual rule is that costs, though discretionary, follow the event.[61]

[63] The Court confirmed that, under s 100, the usual rule in the Tribunal is that each party must bear its own costs for the proceeding.[62] However, the Court noted that this usual rule is "expressly made subject to s 102".[63] Their Honours observed that the discretion under s 102 is wide.

[64] In part, that observation was based on the use of the expression "interests of justice" in s 102. Reference was made to cases where that expression had been considered, though in different contexts.[64] To those references might be added to the statement by Kirby P in Herron v Attorney-General for NSW, where his Honour said:

Those words "in the interests of justice" are plainly words of the widest possible reference. Indeed, there could scarcely be a wider judicial remit.[65]

[65] The Court also referred to authority to the effect that the word "required" has a wide range of meanings, including "calls for".[66] The Court concluded:

The Tribunal may therefore make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party if the Tribunal considers that the interest of justice calls for such an order.[67]

[66] In determining the proper construction of ss 100 and 102 of the QCAT Act, the Court made reference to the provisions of s 43 of that Act, relating to legal representation in proceedings before the Tribunal, a topic which it considered, as a matter of logic, to be linked with costs.[68] After noting that s 43(1) of the Act identified the main purpose of s 43 as being to have parties represent themselves unless the interests of justice require otherwise, reference was made to s 43(2), which includes a provision that a party may be represented by someone else if the proceeding relates to taking disciplinary action, or reviewing a decision about taking disciplinary action, against a person. The Court observed:

It follows that as the proceedings before QCAT constituted a review of a decision about taking disciplinary action, both parties, pursuant to s 43(2)(ii) of the QCAT Act, were entitled to be represented. This express qualification to the general rule in s 43(1) recognises the serious nature of disciplinary action, which may not only concern matters of public interest and safety, but also has the potential to affect a person's professional standing, reputation and finances.[69]

[67] The Court stated that ss 100 and 102 should be construed in the context that s 43(2) gives to a limited class of persons, including parties involved in a proceeding about taking a disciplinary action, an entitlement to be represented.[70]

The above construction of ss 100 and 102 of the QCAT Act is consistent with that adopted by Judicial Member D J McGill SC in Marzini:

"[36] In my opinion the correct approach to the operations of s 100 and s 102 of the QCAT Act is similar to that formulated by the Hon P Lyons QC in Thompson v Cannon ... : The ultimate question posed by the statutory provisions is whether in a particular case the interests of justice require the Tribunal to make a costs order. That is the effect of the terms of the statute. Because of the use in s 102(1) of the word "require", the default position of no order as to costs should not be too readily departed from. I respectfully agree with the approach of the Hon J B Thomas QC in Lee ... to the comments of Keane JA in Tamawood ...

[37] I do not consider that there is any justification in the words of the statute for any further constraint on the operation of the power to order costs under s 102, although the section directs attention to a number of matters which may in a particular case be usefully considered. The reference to 'any other matter the Tribunal considers relevant' shows that this list is not to be read in a confining sense. One matter which is relevant is that this proceeding is one where there was a right to legal representation."[71]

[69] Two questions arise in relation to the costs of this part of the proceeding. The first is whether it is in the interests of justice to award these costs to the applicant. The second is whether the costs should be awarded on an indemnity basis.

[70] The respondent is correct to say that the mere fact that the charge ultimately failed is not a special circumstance, no doubt relying on the submission for a conclusion that the interests of justice do not require a costs order in favour of the applicant. However, that submission does not meet the main thrust of the applicant's contentions.

[71] Here, there is more than the applicant's success in the review, and in particular on the separate determination, to support a conclusion that the interests of justice require an order for costs in his favour. There is the added factor that the proceedings were such that the parties were entitled to legal representation, notwithstanding the general position under s 43(1) of the QCAT Act. The review may not have raised a point of great complexity, but it did require an understanding of the significance of the allegations made in the discipline application, and the nature of a body corporate. From the applicant's point of view, the review was undoubtedly a matter of some importance. He also faced the difficulty that the Committee had found against him. These matters justified the engagement of legal representatives, a consideration which, on its own, might be sufficient for a conclusion that the interests of justice require that a successful party be awarded costs.[72]

[72] At this stage of the proceedings the respondent persisted with the discipline application in the form it took at the time of the Committee's decision. The matters which led to the conclusion that indemnity cost should be ordered against her for the proceedings before the Committee remain relevant here. However, at this stage, the Committee's decision was known to the respondent. The question is whether her conduct should therefore be regarded differently.

[73] When considering whether to resist the review application, it should have been obvious to the respondent, properly advised, that the discipline application alleged that Ms Conaghan was herself the client of the solicitors. It did not allege that the Body Corporate was the client, and that because of her roles with the Body Corporate, dealings with Ms Conaghan breached r 33 of the ASCR. The respondent should have known that it was the function of the Committee (and the Tribunal on review, exercising the functions of the Committee) to decide the allegations in the discipline application.[73] There was nothing in the Committee's reasons to support the allegation in the discipline application that Ms Conaghan was herself the client of the solicitors. It should have been apparent to the respondent that the findings of the Committee were not based on the allegations in the discipline application.[74] The difficulties with the charge were again raised by the errors alleged in the review application. Accordingly, the respondent should have realised that the findings of the Committee did not support the allegations in the discipline application, and that she had no real prospect of successfully resisting the review application, on the basis of the discipline application as it then stood. Yet she contested the separate determination before Boddice J, no doubt with a view to resisting the review proceedings on the same basis. Properly advised, she should have realised that she had no real prospect of success. This is itself sufficient to establish special circumstances, for the purpose of s 102 of the QCAT Act, for the period up to his Honour's determination.

[74] The fact that the applicant attempted to assist the Committee to come to the correct decision also supports a finding that the interests of justice require a costs order in his favour.

[75] It is not possible to determine that the respondent's decision to persist with the charge as it stood at the time of the Committee hearing was tactical, or that she wished to conduct a test case. These matters do not weigh in determining the interests of justice, for the purposes of s 102. Without fuller submissions from the applicant, the Tribunal is not prepared to rely on the submission that the respondent is a model litigant, in support of his application for costs. It is difficult to see that the characterisation of the issue determined by Boddice J as a question of law assists materially in determining the present costs application. It was a determination of the legal character of the relationship between Ms Conaghan and the solicitors that was critical, but this depended on the factual substratum.

[76] In the circumstances, the Tribunal is satisfied the interests of justice require that the applicant have his costs for this part of the proceedings.

[77] For reasons discussed, the respondent, properly advised, should have realised that her opposition to the review proceedings relying on the allegation that Ms Conaghan was a client of the solicitors, had no prospect of success. Her persistence with it unreasonably caused the applicant to incur costs. These conclusions warrant an order for costs of this part of the proceedings on the indemnity basis.

Costs of application to vary discipline application

[78] The applicant identified several grounds upon which it was submitted that the interests of justice require an order for costs in his favour of this part of the proceeding. The first was that the respondent was seeking an indulgence, and accordingly should pay the costs of doing so. The second was that the respondent was given the opportunity, before the Committee, to vary the application, which could have been done then. This would have saved the cost of the variation application before Williams J. The third was that the variation application succeeded on grounds which were demonstrably erroneous; and the respondent should have disabused her Honour of the errors. One was that her Honour attributed a relevance to the decision of this Tribunal in Legal Services Commissioner v Sewell,[75] which it plainly lacked.[76] The other related to the discussion by her Honour of certain evidence from Ms Conaghan. The fourth was that her Honour said that a timetable could be put in place to have the remaining steps completed expeditiously, when in fact more than 19 months elapsed before the final hearing of the varied application. Finally, it was submitted that the amendment was a futility, as no further evidence was, or was permitted to be, adduced.

[79] The respondent submitted that there were no special circumstances warranting the making of an order in the applicant's favour for these costs. Seeking an indulgence does not constitute special circumstances. The application was successful. The applicant did not appeal against the decision of Williams J, and it was inappropriate to contend that the application for leave to vary the discipline application succeeded on grounds which are demonstrably erroneous. The fact that the charge, as varied, failed, does not constitute special circumstances.

[80] It is convenient to commence with the third of the grounds relied upon by the applicant.

[81] The passage from the reasons of Williams J relied upon by the applicant which refers to Sewell is a recording by her Honour of the submissions of the respondent. The applicant's statement that in paragraph [13] of her reasons, her Honour relied upon a passage from Sewell[77] is simply wrong. Nor is there any sensible basis, by reference to the reasons as a whole, for the submission that her Honour attributed undue relevance to the decision in Sewell. Her Honour first determined that, on a review, the Tribunal had power to grant leave to vary or amend a discipline application.[78] Her Honour then considered whether it was fair and reasonable to do so. It is clear that her Honour gave careful consideration to a range of submissions advanced by the parties, and took into account a number of factors which they raised. Her observation that, both in Sewell and in the case her Honour was considering, the variation was consistent with evidence already before the Tribunal, was not inaccurate. It was, at most, a passing observation and does not demonstrate that she attributed undue relevance to the decision. It does not support a conclusion that her Honour's determination was erroneous; still less that some obligation (the basis of which was not explained) fell on the respondent to disabuse her Honour of her reliance on the case.

[82] The third ground raised by the applicant was also based on some passages from the reasons of Williams J where her Honour referred to evidence given by Ms Conaghan before the Committee.

[83] In the first of these passages her Honour recorded the submission of the respondent, in support of her application for leave, that there was evidence relevant to the extent of Ms Conaghan's authority, identified in certain passages of the Committee's reasons.[79] That appears to be a reference to evidence identified in footnotes 11 to 16 of the Committee's reasons. The applicant submitted that her Honour "apparently relied upon" the submission. He did not identify any passage where this occurred. The parts of her Honour's decision which may relate to this submission will soon be discussed. The applicant submitted that the evidence could not be regarded as evidence of the extent of Ms Conaghan's authority. Although the respondent in her primary submissions in support of the variation stated that she did not propose to call further evidence, the applicant does not appear to have submitted, in support of his objection to the variation, that the evidence before the Committee was insufficient to support the varied charge.[80] His position appears to have been that, if the charge were varied, further evidence "would arguably become necessary".[81] No error has been demonstrated in the way her Honour dealt with the respondent's submission.

[84] The next passage records submissions of the respondent to the effect that the evidence of Ms Conaghan was consistent with the contention that she had authority to instruct the solicitors.[82] It was submitted that this is very different to a conclusion that the evidence was capable of proving the allegations made in the discipline application. While her Honour acted on this submission,[83] the applicant has not sought to demonstrate why her Honour erred in doing so. No error has been demonstrated.

[85] The applicant also relied upon a passage from the reasons of Williams J recording submissions of the respondent that there was an arguable case to be remitted to the Committee.[84] He submitted that her Honour apparently relied upon the respondent's submission (without demonstration of the reliance); but that the applicant's submission to her Honour to the contrary was plainly vindicated by the determination of this Tribunal on 8 May 2025.[85]

[86] This latter submission of the applicant is misconceived. On 29 April 2025, the respondent abandoned reliance on the evidence of Ms Conaghan as demonstrating authority to instruct the solicitors.[86] The determination on 8 May 2025 of the varied discipline application did not consider whether the evidence of Ms Conaghan was sufficient to show an arguable case.

[87] It is worth recording that, until 29 April 2025, the applicant required Ms Conaghan for cross-examination, notwithstanding that the respondent was confined to the evidence before the Committee. This made it difficult to arrange a hearing, and caused considerable delay. Most recently by applications filed on 10 April 2025, the applicant also pursued documents of the Body Corporate, including those of the committee of the Body Corporate, which might be expected to demonstrate any conferral of authority on Ms Conaghan, apparently to point to the absence of any relevant resolution.[87] The applicant's approach appears to have been influenced by evidence not limited to that referred to in the Committee's reasons, but also identified in particulars[88] and perhaps elsewhere.[89] This conduct is not consistent with the view that, until 29 April 2025, there was no arguable case to support the varied discipline application. Still less is it consistent with the view that Williams J was demonstrably in error in permitting the variation; let alone to the extent that the respondent should have disabused her of it.

[88] The applicant also referred to a passage from the reasons of Williams J where her Honour stated that the proposed variations were "founded" on the evidence before the Committee.[90] This was submitted, without demonstration, to be "plainly wrong". Her Honour was considering whether it was reasonable to permit the variation, including whether it would affect the fairness of the proceedings.[91] It is apparent that her Honour was recording that the variations relied on evidence before the Committee, with no additional evidence to be adduced by the respondent. Her Honour's statement is, with respect, correct.

[89] The applicant has failed to demonstrate that the grant of leave to vary the discipline application was the product of erroneous views reached by Williams J.

[90] The applicant contended that her Honour's statement that a timetable could be put in place to have the remaining steps completed expeditiously, in fact was not borne out by subsequent events. The relevance of the submission to the question of costs was not explained. The contention provides no support for the application for costs.

[91] The ground advanced by the applicant that the variation was futile was supported only by a submission that no further evidence would, or could, be called by the respondent. Why that might demonstrate that the variation was a futility was unexplained. The submission is inconsistent with the decision of Williams J, which has not been demonstrated to be erroneous. Nor is it consistent with the manner in which the applicant conducted the proceedings up until 29 April 2025, mentioned earlier.

[92] Some weight should be given to other matters relied upon by the applicant. The respondent was seeking an indulgence. The indulgence could have been obtained, likely with no or little additional cost, if she had sought the variation before the Committee, when she had been given the opportunity to do so. Again, the fact that the parties were entitled to legal representation, and legal representation was justified, is relevant. These considerations support the view that the interests of justice require an order for costs in favour of the applicant. The respondent has not advanced any significant argument to the contrary.

[93] The applicant did not make submissions specifically in support of an order for indemnity costs for this part of the proceeding. It is not clear that the respondent, properly advised, should have concluded that a case based on the variations sought by the respondent before Williams J had no real prospect of success.

[94] Accordingly, it is proposed to make an order that the respondent pay the applicant's costs of this part of the proceedings.

[95] It seems to me that the steps taken from the time of the application to vary the discipline application up until 29 April 2025 might be regarded as a consequence of the respondent's application to vary, so that the same considerations warrant an order for costs for this period in favour of the applicant, on the standard basis.

[96] It will therefore be ordered that the respondent pay the applicant's costs of the review proceedings, after the separate determination, and up to 29 April 2025, on the standard basis.

[97] In essence, the applicant's submission was that the case advanced by the respondent consequent on the variation of the discipline application was bound to fail, which must have been apparent to the respondent from the time when the variations were formulated.[92] It was submitted that the Tribunal's determination of 8 May 2025 determined that the evidence before the Committee did not support the amended charge; and it followed that the respondent, if properly advised, must have known that the application as varied had no reasonable prospect of success. The respondent could not have believed, on reasonable grounds, that the factual material which was available provided a proper basis for making the allegations in the discipline application.

[98] For the respondent, it was submitted that the case raised by the variations was not doomed to fail, as recognised by Williams J.[93] The complexity of the case led to King's Counsel being engaged, and necessitated detailed submissions on the evidence and the law.

[99] In written submissions in reply, the applicant repeated submissions that the varied charge was bound to fail. The respondent must have known that the varied application was doomed to fail at least by 29 April 2025, when she abandoned paragraph 3(b) of the particulars of 18 March 2024.[94] The respondent did not adduce evidence of any circumstance which could engage s 101(2) of the Body Corporate and Community Management Act 1997 (Qld) ("BCCM Act").

[100] The applicant's submissions appear to be directed to the proceedings subsequent to the decision to grant leave to the respondent to vary the discipline application. When dealing with the variation application, I also dealt with the proceedings from then until 29 April 2025. What remains for consideration are the costs of the subsequent part of the proceedings.

[101] It is again relevant that the applicant was entitled to legal representation, and was justified in having it. The applicant's ultimate success must also be relevant.

[102] The applicant submitted that the respondent should have known, subsequent to 29 April 2025, that the application was doomed to fail, and that this supports such an award. A significant aspect of the respondent's case in this period was her reliance on s 101 of the BCCM Act.

[103] Section 101 of the BCCM Act provides as follows:

(1) The procedures and powers of the committee are stated in the regulation module.

(2) Without limiting subsection (1), the committee must put into effect the lawful decisions of the body corporate.

[104] The respondent's argument appeared to be that, where the body corporate has passed a resolution, then the committee of the body corporate must, under s 101(2), do acts which are required to be done to put the resolution into effect. That authorises individual members of the committee to do such acts. Thus, if the Body Corporate had resolved to give instructions to the solicitors, then committee members were authorised to give the instructions. Although the respondent did not seek to prove that any resolution had been passed prior to the applicant's dealings with Ms Conaghan, there was the prospect that such a resolution might be passed subsequently; with the consequence that she had authority at the time of the applicant's communication with her. The respondent's submissions also referred to the possibility of an earlier resolution which was invalid (though there was no evidence of such a resolution).

[105] The respondent's argument that s 101(2) conferred implied authority on Ms Conaghan to give instructions to the solicitors at the time of the applicant's dealings with her is novel. The argument is difficult. No authority has been referred to, to demonstrate that it was wrong. Nevertheless, it is considered that such an argument had no real prospect of success, in the absence of evidence of any "lawful decisions of the body corporate" to give instruction to the solicitors; and had the respondent been properly advised, she would have realised that. It might also be observed that the respondent did not allege any relevant resolution in the discipline application.

[106] The factors which have been referred to are such that the interests of justice require that the respondent be ordered to pay the applicant's costs for this part of the proceeding.

[107] The remaining question is whether, for this part of the proceedings, the award should be on the indemnity basis. The conclusion that the respondent, properly advised, should have realised that the discipline application had no real prospect of success, supports such an award.

[108] Accordingly, the costs for this period should be awarded on the indemnity basis.

The respondent is to pay the applicant his costs of this review from 16 March 2023 up to and including 29 April 2025, assessed on the standard basis as if the matter was before the Supreme Court of Queensland.
The respondent is to pay the applicant his costs of the proceedings before the Legal Practice Committee, and the costs of this review both prior to 16 March 2023 and subsequent to 29 April 2025, assessed on the indemnity basis as if the matter was before the Supreme Court of Queensland.

[1] Hearing Book, Lavercombe v Legal Services Commissioner, (Queensland Civil and Administrative Tribunal, OCR081-22, 31 July 2024) vol 4, 2 ("HB").

[3] Lavercombe v Legal Services Commissioner [2023] QCAT 58, [3].

[4] Lavercombe v Legal Services Commissioner [2023] QCAT 58, [18]-[19].

[6] Legal Profession Act 2007 (Qld), s 455 ("LP Act").

[7] Lavercombe v Legal Services Commissioner [2023] QCAT 356, Annexure A.

[8] Lavercombe v Legal Services Commissioner [2023] QCAT 356, Annexure A.

[10] Queensland Civil and Administrative Tribunal Act 2009 (Qld) sch 3, definition (a) of "proceeding" ("QCAT Act").

[11] LP Act, ss 452-456, together with sch 2 definition of "disciplinary body".

[12] At least by implication: LP Act, s 469.

[13] QCAT Act, sch 3, definition of "function".

[15] Lyons v Dreamstarter Pty Ltd [2011] QCATA 142, [35]-[38].

[16] In Lavercombe v Legal Services Commissioner [2024] QCAT 440 I have attempted to identify differences between proceedings dealt with by this Tribunal to determine a discipline application commenced before it, and in its review jurisdiction, as a result of an application made under s 469 of the LP Act. It seems to me these considerations support the view that the proceedings have a different legal character, and accordingly, that s 462 does not apply. That there is a distinction between proceedings to determine a discipline application, and proceedings to review that determination, appears to be recognised by s 43(2)(b) of the QCAT Act, as well as by s 6. I note also that Boddice J determined an issue raised by the discipline application, sitting without panel members. Williams J appears to have recognised the difference between review proceedings, and proceedings before the original decision maker: Lavercombe v Legal Services Commissioner [2023] QCAT 356, [49](i)(i).

[17] Legal Services Commissioner, 'Respondent's Submissions', Submission in Lavercombe v Legal Services Commissioner, OCR081-22, 11 July 2025, [25] ("Respondent's Submissions on Costs").

[19] James Matthew Lavercombe, 'Applicant's Submissions on Costs', Submission in Lavercombe v Legal Services Commissioner, OCR081-22, 19 June 2025, [22] ("Applicant's Submissions on Costs").

[20] Applicant's Submissions on Costs, [23].

[21] Applicant's Submissions on Costs, [3](a).

[22] Respondent's Submissions on Costs, [7].

[23] Respondent's Submissions on Costs, [16].

[24] Respondent's Submissions on Costs, [17].

[25] Respondent's Submissions on Costs, [18].

Lavercombe v Legal Services Commissioner

At a glance

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Decision date

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Judgment (248 paragraphs)

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Legislation Cited (4)

Cases Cited (5)