[3] As to charge 1, the Tribunal found that the conduct of Mr Reeve amounted to unsatisfactory professional conduct.

[4] As to charge 2, the Tribunal found that the charge was not made out.[2]

[5] Pursuant to section 462(1) of the Legal Profession Act 2007 (Qld) ('LPA') the Tribunal must make an order requiring a person who it has found to have engaged in prescribed conduct to pay costs unless the Tribunal is satisfied exceptional circumstances exist.

[6] The Commissioner submits that there were no exceptional circumstances in this case which would warrant a departure from the usual rule that the Commissioner is entitled to his full costs in the matter.[3]

[7] The Commissioner also notes the requirement of section 462(4) LPA, which allows the Tribunal to make an order requiring the Commissioner to pay the respondents costs, but only if the Tribunal is satisfied that the practitioner has not engaged in the prescribed conduct and in addition, the Tribunal considers that special circumstances warrant the making of the order.[4]

[8] Referring to the case of Legal Services Commissioner v Atkins[5] the Commissioner submits that the mere fact a discipline application fails, or a particular factual allegation is not sustained, cannot establish "special circumstances", the general rule being that the practitioner found not guilty is not entitled to costs.[6]

[9] Whilst the Respondent concedes that success as to one of the charges is not alone sufficient to warrant exceptional circumstances,[7] the Respondent points to the fact that, in this case, the Commissioner withdrew the original charge 2 and replaced it with a revised charge 2. This charge was then not made out at the hearing. Moreover, during the proceedings "the applicant sought a compensation order, but it seems to have now abandoned the issue by failing to file any submissions on the point as required by the order made 17 July 2016".[8]

[10] The Respondent submits that the Applicant's withdrawal and apparent abandonment of compensation ought not the be taken in isolation, but must be considered in light of the lack of merit of the substituted charge 2 which, in the Respondent's submission, "had not only no substantial prospect of success, but no prospect of success at all".[9]

[11] The Respondent submits that exceptional circumstances include where charges are brought which have no substantial prospects of success and that ought reasonably to have been appreciated by the Commissioner.[10] The Respondent does not seek an order for costs in his favour saying:

"but for the finding in respect of charge 1, it would have been submitted on the same basis that there were 'special circumstances' under s 462(4) for which this Tribunal may make an order requiring the Commissioner to pay costs in respect to charge 2".[11]

[12] The Respondent also refers to the fact that the Commissioner advised the Respondent's client that she need not make or give a statement, and that she would suffer no penalty for not doing so. Whilst the Respondent concedes there is no property in a witness, the respondent says that the result of this communication was a lack of co-operation from his client when he would otherwise have expected this corroboration to have been forthcoming and compelling.[12]

[13] The Respondent also refers to an offer to settle which was an offer "to consent to discontinuance of the claim with no order as to costs".[13]

[14] The Respondent further submits that the purpose of a costs order is not to penalise a party, and to make such an order in the face of a "draw" of outcomes arising out of the two charges would be the regretful effect, especially when charge 1 was a "victimless" offence.[14]

[15] The Respondent submits that, given the exceptional circumstances, there should be no order as to costs, with each party bearing its own costs.[15]

[16] In the event the Tribunal rejects this submission, the Respondent submits that the Tribunal can fix an amount for costs under section 462(5) of the LPA. However, the Respondent appears to concede that the Tribunal would require evidence as to what amount may be fair and just in the absence of agreement between the parties and so if costs are not fixed the respondent accepts the appropriate scale would be the Supreme Court scale and the appropriate basis would be the standard basis.[16]

[17] As to orders with respect to costs in disciplinary proceedings, each case turns upon its own facts. There is no hard and fast rule.

[18] The Tribunal must make an order requiring the practitioner found to have engaged in prescribed conduct to pay costs unless the Tribunal is satisfied exceptional circumstances exist.[17]

[19] The criterion adopted in section 462(1) is whether the practitioner has been found to have engaged in prescribed conduct.[18]

[20] The words used in section 462(1) LPA allow little discretion to the Tribunal. The wording is not designed to confer or preserve any broad discretion over costs commonly found in statutory provisions conferring power to award costs.[19]

[21] The fact that a practitioner succeeds on some charges but fails on others does not amount to exceptional circumstances.[20]

[22] Whether "exceptional circumstances" exist depends upon the facts of each case.

[23] As to when "exceptional circumstances" might arise, Fryberg J[21] referred to the passage from R v Kelly (Edward)[22] where Lord Bingham of Cornhill CJ had to construe the term in a statutory context and said:

"we must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered."

[24] When the charge against the practitioner is dismissed, section 462(4) LPA provides that the Tribunal may make an order requiring the Commissioner to pay costs but may only do so if it satisfied that the practitioner has not engaged in prescribed conduct and in addition the Tribunal considers that special circumstances warrant the making of the order.

[25] The statutory provision assumes that ordinarily, notwithstanding the success of the respondent, the Commissioner will not be ordered to pay costs. This no doubt recognises with the public interest which motivates the Commissioner in approaching the Tribunal.[23]

[26] In this context, "special circumstances" means just that. They must be special.[24]

[27] The mere fact that a disciplinary application fails, or that a particular factual allegation is not sustained, cannot alone establish "special circumstances". The general rule is that the practitioner found not guilty is not entitled to costs.[25]

[28] However, if a charge has no substantial prospects of success, and that conclusion reasonably ought to have been appreciated by the Commissioner, "special circumstances" may arise.[26]

[29] In this case, the Commissioner was successful as to the first charge, but the second charge was not made out. The fact that this occurred is not sufficient to mean that exceptional circumstances for the purpose of section 462(1) LPA existed. Unlike those encountered in the case of Legal Services Commissioner v Scott[27], the circumstances were not, as Fryberg J described "an extraordinary event in proceedings in the Tribunal".

[30] The charges as reflected in amended charge 2 were not such that they had "not only no substantial prospect of success, but no prospect of success at all as is submitted by the respondent". The charge was not made out because of the evidence.

[31] The Respondent referred to the claim for compensation. Mistakenly, the Respondent suggests the claim for compensation is brought by the Applicant and also that the claim had been withdrawn. That is not correct. The claim for compensation arises under section 464 LPA and is made by a complainant. The Applicant has no role in the compensation claim and it has no relevance to the question of costs in the disciplinary proceedings.

[32] The Respondent refers to the fact that the Applicant advised the Respondent's client, without first seeking the Respondent's consent, that the client need not make or give a statement to assist the Respondent and that the client would suffer no penalty for not doing so. This is an odd submission. The Respondent accepts that there is no property in a witness. Moreover, what the Applicant told the client appears to be correct, namely that the client did not need to make or give a statement and that the client would suffer no penalty for not doing so. The submission regarding the communication with a witness has no relevance to the question of costs.

[33] The Respondent also refers to an offer to settle. Again, this submission has no bearing on the question of costs. Even if the offer to settle might have application to the costs regime under LPA, the circumstances mean that the offer is of no relevance. The offer to settle was to consent to discontinuance with no order as to costs. That offer related to the entire proceedings. As it transpired, the Applicant was successful with respect to charge 1. The outcome for the Applicant was more favourable than the offer which was made. Again, the letter has no relevance to the question of costs.

[34] The Respondent suggests that the Tribunal endeavour to assess costs, but at the same time concedes that such a process would require evidence, of which none is available.

[35] In the circumstances, the Tribunal finds that there are no exceptional circumstances for the purpose of section 462(1) LPA.

[36] Therefore, the Tribunal orders that the Respondent pay the Applicant's costs assessed on a 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.

[1] Legal Services Commissioner v Reeve [2016] QCAT 209.

[2] Legal Services Commissioner v Reeve [2016] QCAT 209 at [91] and [99].

[3] Submissions on costs on behalf of the applicant filed 11 August 2016, paragraph 7.

[6] Submissions on costs on behalf of the applicant filed 11 August 2016, paragraph 15.

[7] Paragraph 2, submissions of the respondent in relation to costs filed 19 September 2016.

[8] Submissions on behalf of the respondent in relation to costs filed 19 September 2016, paragraph 3.

[13] Attached to the submissions on behalf of the respondent, filed 19 September 2016, letter to the applicant dated 14 October 2015.

[14] Submissions on behalf of the respondent in relation to costs filed 19 September 2016, paragraph 12.

[16] Submissions on behalf of the respondent in relation to costs filed 19 September 2016, paragraph 14.

[17] Legal Profession Act 2007 (Qld) s 462(1).

[18] Baker v Legal Services Commissioner [2006] QCA 145; (2006) 2 Qd R 249 at [56]; Legal Profession Act 2007 (Qld) s 462(8) - "engaged in prescribed conduct" means engaged in unsatisfactory professional conduct or professional misconduct.

[19] Baker v Legal Service Commissioner [2006] QCA 145; (2006) 2 Qd R 249 at [56].

[20] Legal Service Commissioner v Bone [2014] QCA 179 at [58]; Baker v Legal Services Commissioner [2006] QCA 145; (2006) 2 Qd R 249.

[21] Legal Services Commissioner v Scott (No 2) [2009] LPT 009 at [19].

[22] [1999] UKHL 4; [2000] 1 QB 198 at 208.

[23] Legal Services Commissioner v Sing (No 2) (2007) LPT 005.

[24] Legal Services Commissioner v Sing (No 2) (2007) LPT 005.

[25] Legal Services Commissioner v Atkins [2009] LPT 10 at [80]; see also Legal Services Commissioner v Bone [2014] QCA 179 at [59]; where the decision is "if success on some charges is not enough to create 'exceptional circumstances' for the purpose of s 462(1), it is difficult to see why that would create 'special circumstances' for the purpose of s 462(4) LPA".

[26] Legal Services Commissioner v Atkins [2009] LPT 10 at [81].