Res judicata: VCAT strikes out case previously decided by Legal Profession Tribunal

Wells’s Case [2006] VCAT 2370 (Senior Member Howell, 16 November 2006)

I have always thought I was the only person in the world who held the view that an unsuccessful claimant in the Legal Profession Tribunal was not allowed, despite s. 133(2) of the Legal Practice Act, 1996 to have a second go in the courts, even though a successful claimant was allowed to do so. I probably wasn’t, since that’s what Senior Member Howell (formerly the Tribunal’s Registrar) decided in VCAT the other day, and he has probably always thought the same way. The issue never seemed to require a decision. The section said:

“A compensation order [made by the Legal Profession Tribunal] does not affect the right of client to recover damages for pecuniary loss, but a court in making an award of damages must take the compensation order into account.”

The equivalent provisions in the Legal Profession Act, 2004 is s. 4.2.14(2).

So the pecuniary loss dispute regime under the Legal Practice Act, 1996 was not a true “two bites at the cherry system” after all. When Mr Howell said “Determination of the issues in the original proceeding brought the litigation between [the Client] and [the Legal Practitioner] to an end”, he must be taken to have been alluding to the proposition that the Client’s claims became res judicata. To attempt to agitate them again was an abuse of process, he said, and the second proceeding was struck out with costs under s. 75 of the VCAT Act, 1998. The way in which the second proceeding came before VCAT was as a claim under the Fair Trading Act, 1999.

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