VCAT does not have jurisdiction over costs disputes in relation to Family Court cases or to state Magistrates’ Courts exercising the Family Court’s jurisdiction (except to the extent it is exercising jurisdiction under ss 35 or 35B of the Bankruptcy Act, 1966), but does have jurisdiction in relation to costs disputes in relation to Federal Magistrates’ Court proceedings under the Family Law Act, 1975. The principal authority for the proposition that the Legal Profession Tribunal did not have jurisdiction over costs disputes about Family Court cases is B v Home Wilkinson & Lowry (Tribunal reference T0136 of 1999), relying on:
- Silver v The Consumer Claims Tribunal and Budziszewski (1978) FLC 90-514;
- Re P’s Bill of Costs (1982) 8 Fam LR 489.
The reasoning goes like this:
- The Legal Practice Act, 1996 and the Legal Profession Act, 2004 are state legislation;
- The Family Law Act, 1975 and the Family Law Rules, 19 are federal legislation;
- Section 109 of the Commonwealth Constitution says “When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.”
- Section 69J of the Family Law Act, 1975, invests federal jurisdiction in summary courts of each State to hear and determine matters arising under Part VII of the Act, which deals with matters concerning children.
- Judges of the Family Court have power to make rules concerning practices and procedures in both the Family Court and in any courts exercising federal jurisdiction granted by the Family Law Act, 1975: section123(1) Family Law Act, 1975. That power includes “prescribing matters relating to the costs of proceedings (including solicitor and client costs …) and the assessment or taxation of those costs”: s. 123(1)(g).
- The Family Law Rules 2004, made by the judges of the Family Court, provide for payment of costs by clients to lawyers: rule 19.01. The rules extend to the costs of a lawyer conducting a case in a court of summary jurisdiction: rule 19.40.
- Rule 19.23 (“Disputing itemised costs account”) provides that “A person served with an itemised costs account may dispute it by serving on the person entitled to the costs a Notice Disputing Costs Account (Form 15) within 28 days after the account was served.” The rules then set out detailed procedures for the resolution of disputes about costs, starting with attempts to settle, moving to a settlement conference, then to the making of a preliminary assessment, and then to an assessment hearing before a Registrar.
- These procedures are quite different to the procedures set out in the Legal Practice Act, 1996 and the Legal Profession Act, 2004 for the resolution of disputes about costs, with the result that the provisions in the Family Law Rules, 2004, being federal legislation, must prevail over the provisions in the Legal Practice Act 1996, being State legislation
State Magistrates’ Courts
Authority for the extension of the proposition to state Magistrates’ Courts exercising federal jurisdiction is:
- A’s Case [2006] VCAT 111 (see the earlier post here) a decision of Mr Butcher (where VCAT was pretending to be the by then abolished Legal Profession Tribunal under transitional provisions in the Legal Profession Act, 2004); and
- S’s Case [2004] VLPT 2, a decision of Mr Howell.
Federal Magistrates’ Courts
VCAT does have jurisdiction over fee disputes in the Federal Magistrates’ Court, even in relation to matters under the Family Law Act, 1975: B’s Case [2004] VLPT 8, at least until such time as the Court takes up the invitation in ss. 81 and 86 of the Federal Magistrates Act, 1999 to make rules relating to “the fees to be charged by practitioners practising in the Federal Magistrates Court for the work done by them in relation to proceedings in the Federal Magistrates Court and the taxation of their bill of costs, either as between party and party or as between solicitor and client”.
