Want of jurisdiction re costs of matrimonial litigation extends to Magistrates’ Court cases

A’s Case [2006] VCAT 111

It is a well established but frequently unknown proposition that by virtue of the inconsistency of the federal scheme for the disputation of the costs of family law litigation proceedings provided for by the Family Law Rules 2004 and the costs disputes procedure under the Legal Practice Act, 1996, the latter yields to the former, with the result that the Legal Practice Act, 1996 does not apply, and neither Professional Standards nor the Tribunal has any jurisdiction.

This decision establishes only that it makes no difference if the Magistrates’ Court hears a family law matter exercising federal jurisdiction, since rule 19.40 establishes that the Family Law Rules extend to the costs of a lawyer conducting a case in a court of summary jurisdiction. The Magistrates’ Court hears matters under Part 7 of the Family Law Act, 1975, which deals with matters concerning children.

(So the applicant lost her claim for $172. One has to wonder whether a filing fee refundable on success might not sharpen the minds of applicants.)

Alan Hebb appeared for the Tribunal; there were no appearances for or by the parties.

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