VCAT’s Civil List engenders “a sea of misunderstanding”

Coggin’s Case [2007] VCAT 266 is an illustration that the merger of the former Legal Profession Tribunal with VCAT is still being worked out. Senior Member Howell described what had been engendered as ‘a sea of misunderstanding’. Unless you are interested in the procedures of VCAT’s Legal Practice List, you will find this post very boring. Mr Coggin initiated a pecuniary loss dispute and a disciplinary complaint with the Law Institute, which has been taken over by the Legal Services Commissioner on the enactment of the Legal Profession Act, 2004. He received a letter advising that the dispute could not be resolved and that he could take it to VCAT. He turned up at VCAT’s registry and tried to do so, but was given an inappropriate form, that is, an initiating process for a civil list matter.

Because his dispute was initiated before the commencement of the Legal Profession Act, 2004, VCAT had to pretend to be the Legal Profession Tribunal. So the appropriate thing for the Registry to have done was to accept any referral in writing of the existing dispute without fee. Mr Coggin filled out the form proffered by VCAT’s clerk, without saying how much he was seeking or what his claims were. Senior Member Howell put aside technicalities, and found that there had been a valid written referral, albeit by the vehicle of an inappropriate form, and that instead of initiating a Civil List proceeding as VCAT had understood, he had in fact referred an existing proceding instituted by the initiation at the Law Institute of the pecuniary loss dispute. That finding was based on evidence that that was Mr Coggin’s intention, as well as some notations on the form itself which tended to corroborate that evidence.

Then a grindingly slow timetable was set down: Mr Coggin was to give some details of his claim within 3 months after some inspections of files — an order apparently made only because ‘The reality is that the referral will go
nowhere at VCAT unless VCAT receives particulars of the compensation claim made by Mr. Coggin in his [dispute]’ — and the respondent solicitor was to give a defence within 6 weeks after that.

The Tribunal noted from what Mr Coggin was able to explain about his intentions at the hearing that Mr Coggin’s two separate claims each seemed to greatly exceeded the Legal Profession Tribunal’s $15,000 limit on its power to order compensation (though there was no monetary limit on its jurisdiction). Though the two claims were made by one pecuniary loss dispute resolution request, Senior Member Howell indicated that VCAT would treat that document as having initiated two disputes, so that the limit of VCAT’s powers was, in total, $30,000. One wonders whether Mr Coggin would in fact have been better served by his application having been characterised as a consumer-trader dispute under the Fair Trading Act, 1999, where VCAT’s jurisdiction is unlimited. That would depend on the outcome of a case presently reserved by Senior Member Howell in relation to whether solicitors engage, when they represent clients, in trade or commerce, and hence whether those provisions of that Act apply to them.

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