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The charges differed in character. Charge 1 alleged that Williamson falsely witnessed a complainant’s signature on a transfer document when the document had not been signed in her presence. The Tribunal’s primary decision required it to assess evidence from both sides, expert evidence, and the credibility and reliability of several witnesses. It concluded the Commissioner had not proved that charge to the requisite standard: [2]. Charge 3 alleged acting without instructions, but could not be maintained if Charge 1 failed, so it was dismissed consequentially: [3].

Charge 2 concerned Williamson allowing signatures on the document to be incorrectly dated. The primary Tribunal accepted that she had allowed the incorrect dating, but found, in the particular and isolated circumstances, that the conduct did not amount to unsatisfactory professional conduct: [4]-[5]. The costs decision emphasises that dismissal of this charge followed a judgment about the professional characterisation of largely undisputed conduct, rather than a finding that the factual allegation had no basis.

The costs application rested on two connected propositions advanced for Williamson. First, she argued that the Commissioner should have known the prosecution was untenable, referring to material said to undermine the complainant’s reliability, handwriting evidence, disclosure and investigation decisions: [17]-[22]. Second, she argued that delay in investigating and prosecuting the matter caused hardship and additional costs. The Tribunal set out the chronology from the complaint in January 2010 to the filing of the discipline application in April 2015: [35]-[49].

The Tribunal refused the application. It accepted that the matter proceeded slowly, including an unexplained period of about seven months between the file reaching the prosecution team in September 2014 and the decision to prosecute on 22 April 2015: [48]. But it found that the delays solely attributable to the Commissioner were not so egregious or exceptional as to amount to special circumstances. It also found no adequate evidence identifying what costs, if any, were unnecessarily incurred because of those delays: [50]-[56].

Why the court decided this way

The statutory test had two stages. Section 462(4) permits a disciplinary body to order the Commissioner to pay costs only if it is satisfied that the practitioner did not engage in prescribed conduct and that special circumstances warrant an order: [7]-[10]. The Tribunal accepted the first requirement because all charges had been dismissed: [9]. The dispute concerned the second requirement and, if it were met, whether the Tribunal should exercise its discretion.

The respondent had to establish special circumstances as the moving party: [11]. And establishing those circumstances would not automatically result in costs. Section 462(4) says the body “may” make an order, unlike s 462(1), which the Tribunal noted uses mandatory language in its own circumstances: [12]. The statutory gateway and the later discretionary decision are therefore distinct questions.

The Tribunal applied propositions drawn from Legal Services Commissioner v Bone. As set out at [15], the mere failure of a charge or factual allegation does not establish special circumstances. A charge with no substantial prospect of success, where the Commissioner ought reasonably to have known that, may qualify. So may a particular allegation known, or reasonably understood by a properly advised Commissioner, to have no real prospect of proof. Conversely, where charges have a sufficiently substantial prospect of success to justify prosecution, that does not amount to special circumstances.

The Tribunal concluded that this prosecution fell on the latter side of that distinction. Charge 1 was not simply unsupported. The Commissioner had evidence from the complainant and expert Mr Heath, whose opinion initially supported the Commissioner’s version: [25]-[26]. The Tribunal’s eventual assessment that the probative value of Mr Heath’s evidence had been significantly eroded depended on its evaluation of other witnesses and their credibility: [27]-[28]. A case being open to challenge did not make it hopeless. The respondent’s counsel acknowledged that a “no case” submission could not have been made at the hearing: [29].

Charge 2 presented a different issue. The material fact that Williamson had allowed the document to bear an incorrect date was not genuinely disputed. The question was whether that conduct, in its particular circumstances, warranted the professional characterisation alleged. The Tribunal considered that the question required referral to the Tribunal for determination: [30]. It therefore rejected the proposition that the charges lacked a substantial prospect of success or that particular allegations had no real prospect of being established: [31], [57].

The delay argument also failed. The chronology showed a slow process with correspondence, disagreement about which documents should go to the handwriting expert, and arrangements for retrieving documents from another law firm: [41]-[45]. The Tribunal acknowledged that some delay was attributable to the Commissioner and described the pace as “pedestrian”: [50]-[51]. But it did not regard the delays solely caused by the Commissioner as sufficiently exceptional to meet the special-circumstances threshold: [51].

There was a separate evidentiary problem with the request for additional costs. At the hearing, the respondent’s argument narrowed towards costs said to have been caused by delay: [32]-[33]. The Tribunal found no material identifying the portion of the overall costs attributable to that delay. The schedule attached to Williamson’s affidavit totalled $368,694.82, but did not show which costs, if any, were unnecessarily occasioned by the Commissioner’s delay: [54]-[55]. Thus, even on the assumption that delay might qualify as special circumstances, the Tribunal saw neither a persuasive reason to exercise the discretion nor a proper evidentiary basis for doing so: [52], [56].

Before and after state of the law

The decision presents s 462(4) as operating within an existing body of authority, rather than as creating a new test. It draws on Bone, which had canvassed earlier decisions including Legal Services Commissioner v Atkins, Baker v Legal Services Commissioner (No 2), Legal Services Commissioner v Sing (No 2), and Legal Services Commissioner v Scott (No 2): [13]-[15]. Williamson applies Bone’s summary of the principles to the facts before it.

The key clarification is practical: losing a disciplinary case is not, by itself, enough to obtain costs under s 462(4). The applicant must establish special circumstances, such as a prosecution that had no substantial prospect of success and should reasonably have been recognised as such, or a particular factual allegation with no real prospect of proof: [15]. Even then, the Tribunal must separately decide whether to exercise its discretion: [12].

The decision also distinguishes two questions sometimes liable to be conflated. Whether special circumstances exist is separate from the basis on which costs are assessed, such as an indemnity or standard basis. The Tribunal cited Bone for the proposition that special circumstances do not automatically mean costs are assessed on an indemnity basis: [14]. It also noted that costs under s 462(4) can be partial, drawing on Bone and Legal Services Commissioner v McQuaid, whereas costs under s 462(1) had been construed as all costs of the proceeding: [16].

This judgment does not purport to alter those principles. Its contribution in this dispute is an application: contested evidence and an adverse outcome did not show that the case was hopeless; slow progress did not, on the findings made, cross the special-circumstances threshold; and the evidence did not quantify additional costs caused by the delay.

Key passages with plain-English translation

At [12], the Tribunal says that demonstrating special circumstances “does not automatically yield a costs order”. In plain English, satisfying the threshold only gives the Tribunal power to consider an order. It does not decide the outcome of the costs application.

At [15], the Tribunal sets out the propositions from Bone. The important distinction is between a charge that fails after adjudication and a charge that had no substantial prospect of success and should reasonably have been recognised as such. The first is not enough by itself. The second may amount to special circumstances. The judgment does not say that every unsuccessful charge, or every investigative error, meets that standard.

At [31], the Tribunal explains why the Commissioner’s case was not treated as hopeless. The parties had sharply opposed versions, and the Commissioner had evidence supporting its position. The Tribunal’s task was to assess that evidence and decide which version had been proved to the required standard. In plain English, a case can be genuinely contestable without being so weak that prosecuting it itself establishes special circumstances.

At [51], the Tribunal accepts that the matter proceeded at a “pedestrian pace” but rejects the claim that the Commissioner-caused delays were sufficiently egregious or exceptional. The finding is tied to the chronology and the Tribunal’s assessment of who caused the periods of delay. It should not be read as a general rule that delay can never qualify.

At [54]-[56], the Tribunal turns from whether delay occurred to whether it justified a costs order. It found no evidence showing which costs were incurred unnecessarily because of the Commissioner’s delay. In plain English, a substantial overall bill did not, without a link to the alleged delay, establish the claimed additional costs.

Finally, [59]-[60] bring the reasoning together: the case required adjudication of opposing positions; dismissal alone did not establish special circumstances; and the application was refused.

What fact patterns trigger this precedent

The decision is relevant to costs applications made after disciplinary charges against a legal practitioner have been dismissed, where the application relies on s 462(4) of the Legal Profession Act 2007 (Qld). It is particularly pertinent where the argument is that the regulator should have discontinued because the prosecution was weak, or because particular allegations could not realistically be proved.

The reasoning indicates that the evidence supporting a charge and the work required to resolve disputes may matter. Here, the Commissioner had evidence supporting Charge 1, and the Tribunal needed to make credibility findings and assess expert evidence: [25]-[28]. Charge 2 involved an accepted factual act but a dispute about whether it amounted to unsatisfactory professional conduct: [30]. Those circumstances informed the finding that the charges warranted adjudication.

The decision also addresses applications based on investigative or pre-proceeding delay. It shows the importance, in the Tribunal’s analysis, of identifying which periods were caused by the Commissioner, whether delay was exceptional, and whether identifiable costs resulted from it: [50]-[55]. Williamson’s counsel ultimately framed the claim as one for extra costs attributable to delay, but the Tribunal found that the evidence did not isolate those costs.

The decision does not establish that delay can never amount to special circumstances. The Tribunal expressly left that legal question undecided, proceeding on an assumption for the purpose of its analysis: [34], [52]. Nor does it determine how a different record, showing a hopeless charge or documented additional costs caused by delay, would be treated.

How later courts have treated it

The supplied judgment does not discuss any later judicial treatment of Williamson (No 2), and the material provided does not establish whether later courts have followed, distinguished, or otherwise considered it. It would therefore be unsafe to state how later courts have treated the decision based only on this text.

Within this judgment, the relevant earlier authority is Bone. The Tribunal expressly uses Bone’s propositions as the framework for deciding the costs application: [13]-[15], [57], [59]. McQuaid is cited for the proposition that “costs” under s 462(4) may cover only part of the overall costs: [16]. The other authorities identified at [13] are described as decisions canvassed in Bone; the judgment does not separately analyse their facts.

The decision’s own account should therefore be distinguished from a later-court history. It establishes how Justice Daubney applied the cited authorities to Williamson’s costs application, but the provided text supplies no basis for claims about subsequent reception.

Still-open questions

The Tribunal did not decide whether pre-proceeding delay solely caused by the Commissioner can, as a matter of law, constitute special circumstances under s 462(4). It assumed that possibility without deciding it: [34], [52]. The question remains open on the face of this judgment.

The reasons also leave unanswered what degree, duration, or character of delay might be sufficiently egregious or exceptional in another case. The Tribunal’s conclusion depended on this chronology, including periods of correspondence and document retrieval involving both sides, and its finding that some delay was not solely the Commissioner’s responsibility: [41]-[51].

A further practical question is what evidentiary material would establish that particular legal costs were caused by delay. Here, the respondent’s schedule recorded an overall total but did not identify what part was unnecessarily incurred because of the delay: [55]. The decision does not prescribe a method for proving that causal link.

Finally, the decision does not determine whether any part of Williamson’s claimed personal time could have been recoverable. The Tribunal expressly said it was unnecessary to consider that question in light of Bell Lawyers Pty Ltd v Pentelow: [55] n 31. That issue should not be treated as decided by this judgment.

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.

[14] Morrison JA observed that the question whether "special circumstances" exist for the purposes of s 462(4) is quite separate from a consideration of the basis of assessment for costs which are awarded (i.e. whether on the indemnity or standard basis). His Honour said that 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".[10]

[15] Importantly for present purposes, Morrison JA said:[11]

[31] This was not, therefore, a case in which it could be said that there was no substantial prospect of success. Nor could it have been said that particular allegations of fact had no real prospect of being established. It was certainly a case in which the parties' positions were diametrically opposed. But that does not mean it was a case which ought not have been pursued by the applicant to have the Tribunal perform its necessary function of evaluating the competing versions of events and rendering a decision. The applicant had evidence to support the charges. It took the advice of counsel as early as 2011, whose advice was that there were reasonable prospects of the Tribunal being satisfied to the requisite standard that the alleged misconduct had occurred. That advice included consideration of the complainant's evidence, which counsel noted was independently corroborated (at least potentially) by, inter alia, the handwriting expert.

[32] Further, in his reply submissions at the costs hearing, counsel for the respondent significantly modified the respondent's argument. He conceded[25] that there "was probably no time at which [the applicant] could sit back and say 'we cannot proceed because of the evidence that is there', but had there been an efficient approach to the matter - and there was not - then there might well have been that form of approach taken by the applicant" which would have reduced the burden on the respondent. Counsel agreed that there had been a basis for the applicant to proceed with the hearing[26] and that it was "a hearing that had to be had".[27]

[33] Counsel for the respondent highlighted the respondent's argument about the delay in investigating and prosecuting the matter, and the difficulties in getting material before the handwriting expert. Yet counsel for the respondent agreed that, even on his argument, if disclosure and the referral of documents to the handwriting expert had happened in a more expeditious timeframe, and the respondent had then prevailed at the primary hearing, there would have been no costs argument because he would have been unable to point to "special circumstances".[28] He ultimately agreed that the best that could really be sought by the respondent was an order for extra costs which may have been incurred by the respondent because of what were contended to be unreasonable delays in the applicant's pursuit of the matter.[29]

[34] Even on this iteration of the respondent's argument, the necessary starting point is for the respondent to persuade the Tribunal that the applicant caused pre-proceeding delay which was so extraordinary as to qualify as "special circumstances" for the purposes of the ensuing discipline application (assuming, without deciding, that such a delay may give rise to a finding of "special circumstances" for the purposes of s 462(4)).

[35] The initiating complaint was received by the applicant on 11 January 2010. The applicant sought, and obtained, further information from the complainant's agent in mid-February 2010. Then on 22 February 2010, the applicant referred the matter to the QLS for investigation.[30] The QLS returned the file, together with its investigation report, on 22 November 2010. The QLS Professional Conduct Committee ("QLS Committee") recommended that the complaint be dismissed. At that stage, the QLS Committee only had the benefit of Mr Heath's first report, which was admittedly inconclusive in relation to the impugned signature. It might be parenthetically noted, however, that even within the QLS investigation unit there were opposing views as to whether there was sufficient evidence in the material to sustain the complaint, and those diametrically opposed viewpoints fundamentally reflected the contrasting cases which were ultimately presented to the Tribunal for resolution.

[36] On 30 November 2010, the applicant gave the respondent a copy of the QLS investigation report together with a request for further information. It followed up on that request and also, on 7 February 2011, wrote to the respondent putting the "post-dating issue" to her.

[37] At the end of March 2011, the applicant received a lengthy and detailed submission prepared by a barrister on behalf of the respondent. This submission argued that there was no reasonable likelihood of a disciplinary body finding the applicant had falsely witnessed the subject document and also addressed the concern that the later dating of the document (i.e. the conduct which became the subject of Charge 2) constituted either professional misconduct or unsatisfactory professional conduct.

[38] The applicant then, on 4 May 2011, briefed counsel to advise. Further information was requested by counsel and supplied by the applicant. The material with which counsel was briefed included the QLS documentation (including the dissenting reports of the QLS investigators), and the respondent's barrister's submission (and ancillary documentation). Counsel's advice was not received by the applicant until October 2011. The advice was that disciplinary charges should proceed against the applicant, and draft charges were provided to the applicant by counsel.

[39] The applicant published those draft charges to the respondent on 10 November 2011.

[40] It seems that the parties (or at least their legal representatives) conferred on 25 November 2011, because on 30 November 2011 the respondent's then solicitors wrote to the applicant referring to that conference and asking to be provided with an updated statement from the complainant (the complainant had changed her version concerning the dates of her presence in Brisbane.)

[41] The next correspondence between the parties was on 16 April 2012, when the applicant sent the respondent's then solicitor an email concerning the provision of the complainant's further statement and the fact that the original of the impugned transfer document had been located and would be sent to Mr Heath. There then followed a series of emails between the legal representatives expressing opposing views about the further documents to be provided to Mr Heath. On 2 May 2012, the respondent's solicitors formally wrote to the applicant stating their position as to the documents which should be provided to Mr Heath.

[42] Over the subsequent months of 2012, there was a series of emails and correspondence between the legal representatives concerning the documents to be provided to Mr Heath. On 24 September 2012, the respondent's solicitors wrote complaining that they still had not been provided with the complainant's further statement. The counterpoint, expressed by the applicant in correspondence, was that the applicant was waiting to be advised as to what documents the respondent wanted submitted to Mr Heath for examination. It is clear from emails sent in November 2012 that the situation remained unresolved.

[43] On 4 January 2013, the respondent's solicitors wrote to the applicant. Amongst other things, they identified a number of contracts (the originals of which were held by another law firm) as documents which needed to be supplied to Mr Heath for examination. By that time, the applicant had provided a draft of the complainant's further statement, and the respondent's solicitors also identified further issues which they said needed to be addressed by the complainant.

[44] From February 2013, there was a series of correspondence between the parties dealing with the obtaining of the documents from the other firm, who should pay that firm for retrieving the documents, the settling of the final brief of documents to be examined by Mr Heath, and the logistics of that examination. That correspondence went backwards and forwards until November 2013. Mr Heath finally, it seems, examined the original impugned transfer in late November 2013, and his addendum report is dated 17 December 2013. It was sent to the respondent's solicitors under cover of an email dated 13 January 2014.

[45] There was then, in March and April 2014, some further correspondence between the parties in which the applicant confirmed it had no objection to Mr Heath examining documents requested by the respondent. It does not appear, however, that the respondent advanced this any further.

[46] The applicant's Principal Legal Officer, Mr Edwards, then drafted an Investigation Report for the applicant. A draft of that report was sent to the respondent's solicitors on about 4 August 2014, with a request that any submissions be provided by the respondent by 26 August 2014. The respondent herself provided submissions in a letter dated 1 September 2014.

[47] The Investigation Report was then finalised by Mr Edwards on 3 September 2014.

[48] It seems that the process within the applicant's office at the time was for such an investigation report to be referred to the applicant's prosecution team for another review of the material and an appraisal as to whether the investigator's recommendation should be acted on. On the evidence before this Tribunal, the file was sent to the prosecution team in September 2014, and the applicant then made the decision to prosecute on 22 April 2015. There is no explanation whatsoever in the material for that delay of some seven months.

[49] This discipline application was then filed on 24 April 2015.

[50] It can be seen from the foregoing that, whilst there was undoubtedly some delay in progressing the matter on the part of the applicant (including the unexplained delay between September 2014 and April 2015), there were also significant periods of time during which neither party advanced the matter with any degree of alacrity. In particular, it simply cannot be said that any delay in the referral of documents to Mr Heath was caused solely by the applicant. The parties engaged in protracted correspondence over that issue, and related topics. There was also a not insignificant period during which arrangements had to be settled for the retrieval of documents from the other law firm.

[51] The matter certainly proceeded at a pedestrian pace. But it does not seem to this Tribunal that such delays as were occasioned solely by the conduct of the applicant were so egregious or exceptional as to warrant characterisation as "special circumstances".

[52] Even if the Tribunal is wrong about that, and it be considered that such delay solely caused by the applicant constitutes a "special circumstance" for s 462(4), it does not automatically follow that there will be an order for costs in the respondent's favour. It is still for the respondent to persuade the Tribunal to exercise the discretion which has been enlivened.

[53] On the respondent's initial argument, it is not at all clear why the discretion ought be exercised in her favour as a consequence of the delay. As already noted, the parties were from the outset advancing diametrically opposed positions, the determination of which called for an independent adjudication by the Tribunal. The respondent, by her advisers, advanced strongly worded submissions in an attempt to persuade the applicant to change its position. The applicant had regard to, and took advice on, those submissions, and was not persuaded to alter its own position. That does not mean that the applicant acted wrongly or inappropriately. It means it thought it had a sufficient case to put to the Tribunal. At the hearing of this costs argument, counsel for the respondent effectively accepted that to be the case.

[54] Nor is it apparent why the discretion would be exercised in favour of the respondent on the position ultimately adopted by her counsel at the hearing, i.e. that she should have an order for the extra costs occasioned by reason of the applicant's delay. There is simply no material before this Tribunal from which it can be found or inferred that the respondent did, in fact, incur any such extra costs. The only relevant evidence from the respondent in this regard was an affidavit by her filed in support of this costs application. In that affidavit, she described at some length the emotional hardship she had suffered through the course of the investigation and the discipline application. She also referred at some length to the financial hardship she had suffered by reason of the diminution in her confidence and capacity to practice. She described a significant loss of income over the years, which she attributed to the effects of having been subject to this investigation and disciplinary proceeding.

[55] So far as costs are concerned, however, the respondent's affidavit is limited. She annexes to the affidavit a schedule which she said outlined the "actual outlays expended and unpaid legal fees invoices". She said it also included a "modest estimate of my time and fees and outlays". The schedule lists legal fees and expenses from April 2010 to the time of the Tribunal's primary decision, and totals $368,694.82. Of that, $220,000 is said to be for the respondent for the "hours taken ... to defend complaint".[31] Of the balance of the fees and expenses, only some $30,000 related to the five years before the discipline application was filed. There is, with respect, simply nothing in the respondent's affidavit, or otherwise in the material, from which it can be discerned as to what part, if any, of those costs were unnecessarily occasioned by the applicant's delay.

[56] In short, even if this were a case of "special circumstance", there is neither a persuasive reason to exercise the costs discretion in the respondent's favour nor any proper evidentiary basis for the exercise of that discretion.

[57] Reverting, then, to the relevant propositions summarised in Bone, for the reasons set out at length above the Tribunal finds:

• (a) this was not a case in which the charges brought by the applicant had no substantial prospect of success, and that ought reasonably to have been known by the applicant; and

• (b) this was not a case in which a particular allegation of fact had no real prospect of being established.

[58] As it emerged at the costs hearing, the respondent's real complaint concerned the extra costs she said she had incurred as a consequence of what she contended to be delay by the applicant in pursuing the matter. For the reasons set out above, the Tribunal does not accept that to be the case. Moreover, insofar as the respondent seeks to suggest that a more expeditious pursuit of the matter might have resulted in the applicant making an earlier determination not to pursue the proceeding, the Tribunal simply cannot accept that as a realistic assessment of the situation. As noted above, the versions were, from the outset, diametrically opposed. The respondent, by her advisers, made submissions to the applicant in the strongest and most persuasive possible terms. The applicant, however, had sufficient evidence to warrant pursuit of its position.

[59] This therefore comes down to being a case in which, the parties having adopted diametrically opposed positions, the Tribunal was called on to perform its adjudicative function. The charges were dismissed but, as settled by Bone, that fact in and of itself does not constitute "special circumstances" because of the general rule that a practitioner found not guilty is not entitled to costs.

[60] Accordingly, the respondent's application for costs is refused.