Summary The Legal Profession Act 2004 was repealed on 1 July 2015. But transitional provisions probably give it ongoing life in relation to all disciplinary investigations which commenced prior to that date (see this blog post), even where the resultant disciplinary prosecution post-dates 1 July 2015. This post suggests that such prosecutions in VCAT (of which there are still many) are now subject to VCAT’s usual costs regime under s. 109 where the presumption is that there will be no order as to costs, and there is no favouratism for the Commissioner.
That is a great improvement on the previous situation when costs were in practice always awarded to the Commissioner and never awarded against the Commissioner, with the Commissioner often getting full costs despite being unsuccessful in some respects. The costs of the Commissioner’s employee were allowed on County Court scale D, despite the remuneration under that scale greatly exceeding the wages paid to the employees on top of fees paid to counsel, on whom the Commissioner is extraordinarily reliant. My impression is that the average costs order in a simple matter which is largely uncontested is $10,000, but costs orders of $50,000 and up may attend upon contested matters which take several days to try (take VCAT’s most recent disciplinary decision, for example: $87,000 claimed by the Commissioner against a poor old sole practitioner out in the suburbs).
The previous position prevailed because of a provision in the VCAT Act 1998 which has been amended consequent upon the repeal of the Legal Profession Act 2004 so as no longer refer to that Act.
Mind you I have tried this argument out in VCAT twice already and made no progress with it, though VCAT has provided no reasons as to why it is incorrect.Continue reading “Costs in disciplinary prosecutions under the Legal Profession Act 2004: excellent news for disciplined solicitors?”