Want of jurisdiction re costs of matrimonial litigation extends to Magistrates’ Court cases

A’s Case [2006] VCAT 111

It is a well established but frequently unknown proposition that by virtue of the inconsistency of the federal scheme for the disputation of the costs of family law litigation proceedings provided for by the Family Law Rules 2004 and the costs disputes procedure under the Legal Practice Act, 1996, the latter yields to the former, with the result that the Legal Practice Act, 1996 does not apply, and neither Professional Standards nor the Tribunal has any jurisdiction.

This decision establishes only that it makes no difference if the Magistrates’ Court hears a family law matter exercising federal jurisdiction, since rule 19.40 establishes that the Family Law Rules extend to the costs of a lawyer conducting a case in a court of summary jurisdiction. The Magistrates’ Court hears matters under Part 7 of the Family Law Act, 1975, which deals with matters concerning children.

(So the applicant lost her claim for $172. One has to wonder whether a filing fee refundable on success might not sharpen the minds of applicants.)

Alan Hebb appeared for the Tribunal; there were no appearances for or by the parties.

Lawyer’s bill in the middle of a case not inconsistent with promise to bill only “when we have completed the work on your behalf”

Buttigieg’s Case [2005] VCAT 2916

The costs agreement in a Workcover matter said “we will only charge you if you are successful” and that was defined to mean “lump sum compensation, … weekly payments of compensation including an increase in the rate, …, payment of medical and like expenses”. But it said “We shall send you a bill for our professional fees when we have completed the work on your behalf.” Buttigieg said since she had not yet received lump sum compensation and her case had not yet been completed, she should not have to pay a bill of $1,100 rendered upon receipt of $7,800 in arrears of weekly payments (i.e. not lump sum compensation). Mr Howell concluded:

“These provisions [of the costs agreement] do not sit easily together, as being successful and completing a matter are different concepts. [“the terms … are equivocal and to a limited extent quite confusing. For example, the costs agreement is a standard form designed to deal with both workplace injuries and motor vehicle injuries, which means that many of its provisions had no relevance whatsoever in Ms Buttigieg’s case. It is possilbe that this dispute might not have arisen if the costs agreement had been tailored to deal with her case.] Doing the best I can to make sense of the costs agreement, I am satisfied that the thrust of the agreement was that no fees would be charged unless compensation of some kind was received by Ms Buttigieg. [She] received about $7,800 in back payments when weekly payments were restored, and [the solicitors] did not render an account to Ms Buttigieg until that had happened. I do not see liability for payment of costs as dependent upon completion of the claim, partly because there are periodic variations or adjustments in many workcover claims and the work in those claims tends never to be completed.”

Mr Howell decided that because of the poorly drafted costs agreement, the solicitors were not entitled to costs “even if the dispute … was frivolous, vexatious, misconceived or lacking in substance” (the touchstone for his discretion).

Alan Hebb was for the Tribunal, I Fehring for the solicitor.