Lavercombe v LSC [2023]-[2026]: Six years, five decisions and a tiered costs order

Key Takeaways

• A 27-minute phone call in April 2020 produced six years of litigation and five QCAT decisions before Mr Lavercombe cleared the rule 33 breach alleged against him.
• In Lavercombe v Legal Services Commission [2023] QCAT 58, Judge Boddice held the original allegation that Ms Conaghan was the client of Grace Lawyers was 'factually incorrect and unsupported by the evidence'. Particulars in disciplinary proceedings bind the regulator.
• The Commissioner was granted leave in [2023] QCAT 356 to run an amended agency theory under s 101(2) of the Body Corporate and Community Management Act 1997 (Qld), but the theory failed on the evidence in Lavercombe v LSC (No 2) [2025] QCAT 226.
• In Lavercombe v LSC (No 3) [2026] QCAT 163, Judge Lyons ordered tiered costs: indemnity costs for the Committee proceedings and for the review to 16 March 2023 and from 29 April 2025, but only standard costs for the middle window while the amended agency case was live.
• A committee position does not, without more, make an officer the corporate client's agent for receiving legal communications under rule 33 of the ASCR.

1. 1.The call that started it
2. 2.The five decisions
3. 3.The costs order
4. 4.What went wrong for the Commissioner
5. 5.The good for practitioners
6. 6.The bad and the not so good
7. 7.Practical takeaways
8. 8.Final thought

A 27-minute phone call in April 2020 has taken six years and five tribunal decisions to resolve. Brisbane solicitor Mr James Lavercombe of JML Rose has cleared the rule 33 breach alleged against him and secured a mixed costs order that is partly indemnity and partly standard. It is a rare practitioner win and a careful study in why particulars matter, why agency cannot be assumed and why costs in regulatory work are seldom a blunt instrument.

The call that started it

In April 2020 Mr Lavercombe, acting for a party adverse to the body corporate for Arila Lodge at Toowong (CTS 14237) in a debt dispute, telephoned Barbara Conaghan. Ms Conaghan was a lot owner and at the time held secretary and treasurer positions on the committee. Grace Lawyers acted for the body corporate. The call ran for roughly 27 minutes. The Legal Services Commissioner alleged a breach of rule 33 of the Australian Solicitors' Conduct Rules (ie., the no contact rule) (ASCR). Five tribunal decisions followed.

The five decisions

1. Legal Practice Committee. The LPC found Mr Lavercombe had dealt directly with the client of another practitioner, in breach of rule 33 of the ASCR and that the conduct amounted to unsatisfactory professional conduct. Mr Lavercombe applied to QCAT to review the decision.
2. Lavercombe v Legal Services Commission [2023] QCAT 58 (Judge Boddice, 2 March 2023). The particulars pleaded that Ms Conaghan was the client of Grace Lawyers. Judge Boddice found that assertion "factually incorrect and unsupported by the evidence" at [19]. The client was the body corporate, a separate legal person. The original charge failed at the factual foundation.
3. Lavercombe v Legal Services Commissioner [2023] QCAT 356 (Judge Williams, 19 September 2023). Rather than accept defeat, the Commissioner applied for leave to vary the discipline application to plead a new theory: that Mr Lavercombe had indirectly contacted the body corporate through its agent Ms Conaghan, with authority said to arise under s 101(2) of the Body Corporate and Community Management Act 1997 (Qld) and the scheme by laws. Judge Williams granted leave. On its own, this decision was a setback for the practitioner.
4. Lavercombe v Legal Services Commissioner [2024] QCAT 440 (Judge Lyons, 4 September 2024). A procedural ruling confirming the judicial member could sit alone under s 599 of the Legal Profession Act 2007 (Qld).
5. Lavercombe v Legal Services Commissioner (No 2) [2025] QCAT 226 (Judge Lyons, 8 May 2025). The amended charge was dismissed. At [29] Judge Lyons held that the Commissioner "has not established Ms Conaghan was authorised to give instructions, and accordingly, was sufficiently representative of the Body Corporate to invoke the operation of rule 33". The evidence showed Ms Conaghan had been contacted in her capacity as a lot owner preparing to vote at an upcoming general meeting. A committee role did not, without more, make her the corporate client's agent for the purposes of receiving legal communications.
6. Lavercombe v Legal Services Commissioner (No 3) [2026] QCAT 163 (Judge Lyons, 8 April 2026). The costs decision. Importantly it is not a blanket indemnity order. It is a tiered order and the tiering matters.

The costs order

The Tribunal awarded costs on two bases.

Indemnity basis for the proceedings before the Legal Practice Committee and for the review proceedings up to 16 March 2023 and from 29 April 2025 onwards. At [57] Judge Lyons observed that the original 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".

Standard basis, applied as in the Supreme Court, for the review proceedings between 16 March 2023 and 29 April 2025. That middle window captures the period during which the Commissioner pursued the amended agency theory. The Tribunal ultimately rejected that theory but did not treat it as so hopeless as to warrant indemnity costs across the board.

In particular, Lyons J considered:

[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] 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. 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. 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.

The message is subtle. Bringing a charge on a factual premise with no evidentiary basis attracted the stronger sanction. Running the revised agency theory was not so obviously doomed as to attract indemnity consequences in the middle window.

What went wrong for the Commissioner

The pleadings problem. Particulars in disciplinary proceedings fix the case the respondent must meet. The original application pleaded a factual claim the evidence could not support.

The agency problem. When the theory shifted to indirect contact via an agent, the Commissioner needed evidence of actual or ostensible authority in Ms Conaghan to receive communications for the body corporate. A committee position does not automatically carry that authority. The BCCM Act regime and the scheme's by laws matter. Judge Lyons was not persuaded on the evidence.

The advice problem. The indemnity tiers tell the real story. A properly advised regulator should have appreciated the original factual premise was unsupported before filing and should have recognised by 29 April 2025 that the amended case had run its course. The Queensland Law Society guidance statement, quoted by Judge Lyons in No 2 at [14], is consistent: a solicitor acting for a body corporate will not be regarded as acting for individual lot owners.

The good for practitioners

Three doctrinal points are usefully confirmed. A corporation is a separate legal person from its officers and members for rule 33 purposes. Particulars bind the regulator and cannot be stretched at hearing. Indemnity costs are live against the Commissioner where a stage of the case should never have been run. The bench was also meaningful. Judge Boddice and Judge Williams were sitting Supreme Court judges at the time. Judge Lyons was a retired Supreme Court judge.

The bad and the not so good

Round two was a loss. Judge Williams granted the Commissioner leave to plead a new theory on the same underlying facts. Practitioners who assume a regulator will be denied a second bite at the cherry should expect disappointment.

The costs order is not a pure indemnity vindication either. The middle window attracted only standard costs. Indemnity costs remain exceptional. The Tribunal calibrated carefully by reference to when the hopelessness of each pleaded case should have been apparent to a properly advised regulator.

Practical takeaways

1. Press the particulars early. If the regulator's particulars do not support the charge as pleaded, raise it in writing and put the regulator to its election. Letting a defective pleading run risks a mid stream amendment that resets the clock.
2. Force the agency question. In any no contact matter involving a corporate or institutional client, test who the client is, what instrument confers authority and whether the person contacted actually held that authority. Evidence, not assumption.
3. Keep a contemporaneous record. The lot owner characterisation held up because file notes and surrounding material pulled in the same direction.
4. Think in tiers when you think about costs. Do not assume an acquittal buys indemnity across the entire matter. Identify each stage, pair each stage with the evidence available to the regulator at that point and frame the costs application stage by stage.
5. For doctors and other regulated professionals, the logic travels. A corporate or institutional complainant is not the individual in the chair. Particulars should say who the client is and the evidence should match.

Final thought

Six years on, a Brisbane solicitor has been vindicated. The vindication is real but not unqualified. Regulators are entitled to make their case, but they are expected to plead it on evidence and to stop when the evidence is not there.

This article is for general information purposes only and does not constitute legal advice. You should seek professional advice tailored to your specific circumstances before acting on any information in this article. Liability limited by a scheme approved under Professional Standards Legislation.