Legal Services Commissioner’s new decision making powers

The Victorian Legal Services Commissioner has published a report on his new proactive regulation of the profession.  It tells how risk profiles of practices are being constructed with the assistance of academics to target trust audits and audits of firms more generally (a new thing for law practices which are not ILPs).  It also tells about the exercise of the power to make binding decisions, and alerted me to the fact that the Commissioner now publishes redacted versions of costs determinations at this page. The report says:

Making determinations

The Commissioner now has the power to make binding determinations in consumer matters. In costs disputes where the disputing parties have reached a stalemate, and where the disputed amount is below $10,000, the Commissioner now has the power to determine what is fair and reasonable in the circumstances. The Commissioner will generally refer these matters for a costs review; the outcome ow which will often form the basis of a finding of fair and reasonable legal costs. After a costs review has been completed, it is not unusual for the parties to recommence negotiations and reach a settlement themselves on the basis of the review. Where this does not occur and the Commissioner flags what the determination is likely to be, it is not unusual for the parties to resolve their dispute and settle. The power to make determinations has taken some pressure off the Victorian Civil and Administrative Tribunal (VCAT), where we previously had been required to direct disputing parties to obtain a binding decision.

In 2015-16 the Commissioner exercised this new power to make a binding costs determination in eight consumer matters. A notable consequence of this power was that in numerous other matters, when a proposed determination was foreshadowed in writing for the parties’ comment, many matters settled without the need to issue the binding determination. The Commissioner also has the power to make a determination in consumer matters that involve service issues, including the power to order compensation of up to $25,000.

For matters involving unsatisfactory professional conduct, the Commissioner has the power to make a conduct determination involving a range of sanctions, including issuing a reprimand or a caution, ordering compensation be paid to a complainant, ordering an apology be given or work be redone, and issuing a fine of up to $25,000.

Publicising outcomes

As an educative tool, the Commissioner now publishes redacted costs determinations on its website, and also publishes a blog which summarises of the outcomes of each disciplinary matter brought before VCAT.’

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