VCAT does not invoke Fair Trading Act to cure want of Legal Profession Act jurisdiction

In Huang’s Case [2007] VCAT 1692, Senior Member Howell was presented with a case brought by a man who had initiated the Legal Profession Act, 2004‘s lawyer-client costs dispute process by lodging a civil complaint with the Legal Services Commissioner. The scheme of the Act is that the Commissioner tries to settle the dispute, and if she can’t, she gives the punter a ticket to take the dispute to the next level, VCAT’s Legal Practice List: s. 4.3.7. Mr Huang jumped the gun, and didn’t wait to get his ticket before commencing VCAT proceedings.

Senior Member Howell dismissed the dispute for want of jurisdiction. Because of the implied repeal of the (Victorian) Legal Profession Act, 2004 insofar as it relates to many aspects of solicitor-client costs charged in Family Court proceedings by the (Commonwealth) Family Law Act, 1975, there was no discussion of recognising a jurisdiction under s. 108 of the Fair Trading Act, 1999 and using that to establish jurisdiction. Very appropriate too, since it would be logical that the Fair Trading Act, 1999 is no less impliedly repealed in its application to lawyer-client costs disputes which are governed by the Family Law Act, 1975 than the Legal Profession Act, 2004.

But then you start to ask yourself whether the Legal Profession Act, 2004 might not have impliedly repealed that part of the Fair Trading Act, 1999 which is inconsistent with it. Like the bit that says you can litigate a professional negligence case against a solicitor worth more than $25,000 in VCAT when the Legal Profession Act, 2004 says you can only litigate such claims up to $25,000 there. (There is one difference of course, between:

  • the clash between the Family Law Act, 1975 and the Legal Profession Act, 2004 on the one hand and
  • the clash between the Fair Trading Act, 1999 and the Legal Profession Act, 2004 on the other,

namely the exclusion from the mix of s. 109 of the Constitution in the latter clash, which is a clash of two state acts.)

[If you find this post cryptic, you might need to read the earlier posts which are linked to.]

See also:

Print Friendly, PDF & Email

Leave a Reply

Your email address will not be published. Required fields are marked *