Costs Disclosure Obligations Under the Legal Profession Act 2004 (Vic)

The legendary foundation author of Quick on Costs, Roger Quick, has asked me to put this old workmanlike paper on my blog so that he can cite it and link to it in the second edition of that monumental text which he is kindly working on for all our benefits.

What follows does not deal with any developments in the law since 2010, or indeed anything I have learnt since 2010, when I delivered the paper, and so it is out of date, but it might still be of use in some jurisdictions which have not adopted the Legal Profession Uniform Law or by analogy in some cases which are governed by that law.  Sorry about the formatting, which is the product of copying and pasting a Word document into WordPress.

1. Summary

This paper does not deal with contingent, or no-win no-fee retainers.  In relation to all other matters, the take-home points are these: Continue reading “Costs Disclosure Obligations Under the Legal Profession Act 2004 (Vic)”

2019: Not Such a Good Year (Environment, Part II)

The endangered greater glider, nearly a metre long, one of the biggest gliding mammals in the world, lives for 15 years, eats gum leaves, glides for 100 m between, ideally, tall old trees with hollows to bunk down in.

Today is World Environment Day.  It prompted me to tidy up, in a minimal kinda way, and publish this hitherto unfinished and unpublished blog post from the ‘2019, Not Such a Good Year’ series.  Of course, 2020 brought a new perspective on things.  But the environment has kept going to shit, as I will no doubt expand upon in a future post.

After 2.2 million other Australian homes went solar, I eventually got an army of solar panels in 2019, the biggest ever year for solar installations in Australia, and greatly enjoyed harnessing the sun to defeat itself through airconditioning. (Two great long reads about the pernicious cycle of (non-solar powered) airconditioning here and — damn Qatar’s bad — here.)

But other things to bring cheer were mainly predictions, proposals and plans (see this post).

An area bigger than Scotland, more than a Denmark in NSW alone, was burnt, much of it forests, estimated to result in the deaths of billions of birds, mammals and reptiles alone, possibly resulting in several species’ extinctions. Maybe three trillion beetles from just one family, Staphylinidae, were incinerated. Some species of much-loved Christmas beetles may have been extinguished. Some shocking images of the detritus of Mallacoota’s once-cacophany of birds were published by The Age, but I managed to get 80 kg of wild bird seed to my mates in Mallacoota by boat to help feed the many birds he says have returned.

It was in fact an extravagantly bad year for the environment, especially Australia’s bits of it. Japan even recommenced whaling (though only in Japanese waters) after Australia single-handedly had them banned only a couple of years ago by the International Court of Justice from the Southern Ocean.

Continue reading “2019: Not Such a Good Year (Environment, Part II)”

Think twice before agreeing to punt an appeal where you and the other side are unpaid in relation to round one

Update, 19 March 2021: My Sydney colleague, Andrew Bailey, drew my attention to Longjing Pty Ltd v Perpetual Nominees Ltd [2017] NSWSC 1690 at [40]ff, which is to similar effect.

Original post: In Carter v Mehmet [2021] NSWCA 32, the Court granted the respondents’  security for costs application in part because the appellant’s solicitors had much to gain from the appeal’s success and had agreed to do it no win no fee, and so were creditors associated with the proceeding, but the appellant had not proven that the solicitors could not contribute funds in order to provide security.  Since it was not suggested that they could not provide funds to enable the appellant to give security in the order of scores of thousands of dollars (though there was evidence that they would not do so), it could not be said that the appeal would be stultified by virtue of the inability of the appellant and those who stood behind him to provide the security.

If you are a lawyer whose fees are unpaid from round one, consider very carefully whether you agree to do the appeal no win no fee, as opposed to entering into an orthodox retainer in the knowledge that payment may be difficult unless the appeal succeeds.  If you are an impecunious appellant in that situation, think even harder about accepting or proposing such a retainer, since — good as it sounds — it may effectively preclude you from pursuing the appeal.

Continue reading “Think twice before agreeing to punt an appeal where you and the other side are unpaid in relation to round one”

Chaplin v Hicks

Seymour Hicks

Chaplin v Hicks [1911] 2 KB 786 is often cited as the first loss of a chance case. I thought it was more or less a case about a lottery in which the plaintiff missed out on a, say, 10% chance of winning a prize and recovered 10% of the prize monies.  But by reading it I discovered it is actually a case in which the plaintiff missed out on competing by audition with 49 others for twelve three year jobs as an actress.  So about one in four of the 50 would get a job the total average pay for which was £624.  Miss Chaplin recovered £100 at first instance, but how that figure was arrived at was not explained, because this was an appeal from a jury decision in a case presided over by Pickford J. Evidently, £100 is not about a quarter of £624, though.

If anyone can point me to the first instance decision, original newspaper advertisement, or a photo of Miss Chaplin, I would be most grateful. Continue reading “Chaplin v Hicks”

2020: Not Such a Good Year (Deaths)

Takna Jigme Sango

Cars Holden

Americans  A grotesque pathogen the actions of which had at the time already killed 200,000 Americans contracted COVID-19, and described it as ‘a blessing from God’.  Though thoughts and prayers around the world were with the virus, Trump prevailed.  By the end of the year, one in every thousand Americans had died of COVID-19, more than a 9-11’s worth — more than 3,000 — a day some days.  COVID-19 is predicted to kill more Americans than died in the second world war, up to 450,000.  One of its probable victims was Rommel Broom, who was on death row following a failed attempt to kill him by lethal injection in 2015.

Lawyers Arch conservative Antonin Scalia’s progressive opera buddy Ruth Bader Ginsburg‘s end of life ambition to survive the end of the Trump administration so as to prevent her replacement by an ultra-conservative Trump appointee was cruelled by pancreatic cancer.  Truth be told, his incompetence was so great that he didn’t really actually do much, compared to the opportunity he had to do it, but POTUS did manage to stack SCOTUS with three new conservatives.  The third was Catholic cult member Amy Coney Barrett, previously appointed to the Seventh Circuit by Trump, hurriedly confirmed in the last days before the US election.  The composition of the Court is a matter for Congress and there is talk of increasing the number of justices in the Biden term so as to allow Democratic appointments.  But the composition of the Supreme Court is not the only issue, since intermediate appeal judges provide ultimate resolution for most cases, and Trump has appointed 51 of 179 active circuit court judges, mostly white blokes, lifetime appointments, with a mediation age of 48, nearly one-third of the entire bench in four years (c.f. Obama 55 and Bush 62 each over 8 years and I suspect Trump’s appointments were far less meritocratic than even Bush’s). Continue reading “2020: Not Such a Good Year (Deaths)”

What the Gobbo royal commission recommended about regulation of the legal profession

Here is Commissioner McMurdo’s Summary and Recommendations from the Final Report, published yesterday, of the Royal Commission into the Management of Police Informants.

Reproduced below is what it says about regulation of the legal profession.  There will be more complaints about barristers in the future.  Victorian barristers would be well advised to take out the top up insurance available to members of the Victorian Bar which includes a primary layer insurance against defence costs of disciplinary investigations including by the Victorian Legal Services Commissioner. Continue reading “What the Gobbo royal commission recommended about regulation of the legal profession”

The tariff for rudeness: a reprimand

I had to review the penalties for rudeness by lawyers recently, and what I found is that the usual penalty is a reprimand, even for very rude recidivists.  That is not surprising, since a reprimand is a serious professional sanction, not to be equated with a slap over the wrist:  Peeke v Medical Board of Victoria [1994] VicSC 7 at p. 6 (Marks J); Medical Practitioners Board of Victoria v Swieca [2009] VCAT 419 at [52] (a tribunal of three presided over by Deputy President Dwyer). This principle has been reiterated in A Practitioner v The Medical Board of Western Australia [2005] WASC 198 at [62], in LSC v Moore [2010] VCAT 742 at [44] (Member Butcher) and in LSC v Long [2011] VCAT 1164 at [24] (Deputy President Macnamara) and in LSC v Sapountzis [2010] VCAT 1124 (Member Butcher).  Most recently, see VLSC v VH at [27] et seq per Vice President Hampel [2018] VCAT 1498. Continue reading “The tariff for rudeness: a reprimand”

A case under the Uniform Law about a barrister who had no costs agreement and gave no costs disclosure

In Arya v TD [2020] VCAT 923, Member Tang, a former President of the Law Institute now a full-time member of VCAT, had to decide what were the fair and reasonable costs (in the Legal Profession Uniform Law sense of that phrase) of more than 11 hours’ work by a Victorian barrister of 18 years’ call. The work product was a 23 page memo of high quality advice in a field in which the barrister had literally written the book. He had entered into no costs agreement and had given no costs disclosure, in a direct access brief.

Because the case reached VCAT via a costs dispute before the Victorian Legal Services Commissioner, there was an additional layer of fairness and reasonableness to be considered, compared with the same analysis in a taxation: s. 99 of the Application Act associated with the Uniform Law required the Tribunal to fix the costs in an amount which was ‘fair and reasonable in all the circumstances’, an invitation to palm tree justice if ever I heard one.

The barrister’s fee slip was for $10,175 calculated at $595 per hour reduced on a but say basis to $9,900. The fair and reasonable cost of the work was just over one-third of the larger figure, or $3,500, found Member Tang.

Until 2015, solicitors and barristers were entitled in the absence of a valid costs agreement to costs on the relevant court scale or, for non-contentious business, on the Practitioner Remuneration Order. Where there was a void costs agreement that entitlement was capped at the amount which would have been recoverable under the costs agreement. Since the introduction of the Uniform Law, how a lawyer recovers fees in the case of a void costs agreement is not spelt out, but since no one can ever recover fees from persons other than ‘commercial or government clients’ which are not ‘fair and reasonable’, the fees recovered certainly have to meet that criteria.

In those Uniform Law taxations where the Costs Judge has figured that the costs disclosure defaults might have been opportunistically seized upon by clients who had not been materially prejudiced by the defaults in question, Associate Justice Wood has been finding that the fair and reasonable costs may be prima facie calculated by reference to the void costs agreement in question. See, e.g., Johnston v Dimos Lawyers [2019] VSC 462; Bennett v Farrar Gesini Dunn Pty Ltd [2019] VSC 744; Cameron v Thomson Geer [2020] VSC 75.

What this case demonstrates is that, in the case where a client really has been sucked into something they might not have signed up for if they had been given appropriate disclosure in advance, the fair and reasonable costs may be considerably less than the reasonable rate multiplied by the number of hours spent, and significant ‘penalties’ for non-disclosure and inutility may be operative.

By virtue of the direct access relationship between the barrister and the solicitor, the same law should apply in cases involving a solicitor and client.

Continue reading “A case under the Uniform Law about a barrister who had no costs agreement and gave no costs disclosure”

Powers of compulsion and the privilege against penalties

Justice Blue’s clear and thorough reasons in Bell v Deputy Coroner of South Australia [2020] SASC 59 usefully rehearse and summarise the law relating to the privilege against penalties, its application in non-curial settings, and the circumstances in which an intention will be imputed to parliament to abrogate the privilege, including in the situation where express provision is made in relation to the separate and distinct privilege against self incrimination. His Honour found at [135] – [195] that:

  • the Coroner’s Court is a court of record, so it is not a non-curial setting for the purposes of penalty privilege analysis;
  • there is a tension in the dicta of the High Court as to the applicability of the penalty privilege in non-curial settings which did not need to be decided in this case;
  • the will of parliament is an abstract concept and is not ascertained by speculating about what was probably going through parliamentarians’ minds (at [175]);
  • it is wrong to say that where specific exceptions by reference to common law privileges are given by statute to a statutory obligation to comply with a power of compulsion, other statutory privileges should be taken by implication to have been abrogated;
  • rather, it is correct to start from the proposition that common law privileges are not intended to be abrogated otherwise than by clear words or necessary intendment;
  • s. 23 of the Coroners Act 2003 (SA) (reproduced below) did not impliedly abrogate the privilege against penalties: parliament legislated specifically in relation to the privilege against self-incrimination out of an abundance of caution ([183]), and the fact that it did not also do so in relation to the penalty privilege is neither here nor there.

A second set of reasons, including in relation to costs is at [2020] SASC 77.

Continue reading “Powers of compulsion and the privilege against penalties”

All the High Court Cases About Lawyers

Here is my preliminary attempt at consolidating all the High Court cases about lawyers in one place. If I’ve missed any, let me know; it’s a work in progress.

Re Coleman (1905) 2 CLR 834; [1905] HCA 19 The Court gave the following judgment, about a NSW solicitor who had attempted to engage in what sounds like a fraudulent scheme to defeat a client’s creditor and been suspended from practice for 12 months: ‘This is not a case in which special leave to appeal should be granted. Looking at all the circumstances of the case we can see no reason to doubt that the decision of the Supreme Court was substantially correct. That Court was of opinion that the applicant had been guilty of professional misconduct which merited punishment, and we see no reason to differ from them. That being so, it is difficult to see how we can properly interfere with the exercise of the Court’s discretion in inflicting punishment upon one of its own officers. In such cases the nature of the punishment is a matter entirely within the discretion of the Supreme Court itself.’

The decision has been cited only in Re Daley, below.

McLaughlin v Daily Telegraph Newspaper (1906) 4 CLR 548; [1906] HCA 78

Re Daley (1907) 5 CLR 193; [1907] HCA 32 The Court declined to grant to a Sydney solicitor special leave to appeal against his suspension from practice for 18 months for making a fraudulent representation to counsel to induce him to accept a brief for which he went unpaid. The Court, applied Re Coleman, reiterating it was a matter for the Supreme Court of NSW.

The decision has been cited only by Tasmanian cases, as an illustration of the use of the word ‘punishment’ to describe the orders made in disciplinary proceedings.

Continue reading “All the High Court Cases About Lawyers”

Cases applying Barwick’s Case, and related legislative developments

In a recent post, I provided a case note of the High Court’s decision in Barwick v Law Society of NSW (2000) 169 ALR 236. This rather workmanlike post looks at decisions which have applied it, and Barwick-related legislative developments in NSW and elsewhere not replicated in Victoria, which have sought to undo the strictness of Barwick, some but not all of which are now with us in Victoria through the Legal Profession Uniform Law.

But it notes that Melbourne’s legislators have in the main signally not taken up the NSW penchant for passing provisions ever more generous to the State with regard to allowing matters to be prosecuted whether or not they were the subject of a complaint or an investigation which was authorised by the relevant legislation and played by the rules.

Perhaps that is because in relation to these questions the practitioners of Victoria — my clients excluded of course — have been inexplicably more supine than, or the Victorian disciplinary tribunals not as punctilious as, their Sydney counterparts such that the need for the provisions has not impressed itself on the minds of our parliamentarians.

But perhaps it is because Victoria thinks that in the context of the battle between the vast resources of the state and a citizen faced with prosecution in which costs of scores and hundreds of thousands of dollars are regularly ordered, against which the citizen may not obtain any insurance if s/he is a solicitor, the State should be encouraged to play by the book by the prospect of its prosecutions falling over if they don’t. After all, if the first prosecution falls over, they can usually go back and do it again, playing by the book.

Continue reading “Cases applying Barwick’s Case, and related legislative developments”

What can barristers charge for?

As I mentioned in a couple of recent blog posts (here and here), I gave a talk to the Junior Bar Conference in 2017, so what follows is a few years old now. Youngsters were invited to ask questions in advance by some secret process, and one anonymous young thing asked the question ‘What can barristers charge for?’, which I thought to be an odd question indeed. But being an earnest fellow, I answered it. As follows:

Continue reading “What can barristers charge for?”

2019: Not Such a Good Year (Environment, Part I)

Coming up soon is my summary of 2019 from an environmental perspective (awful, worse than ever). It was the world’s second hottest year, Australia’s hottest and driest year ever, the ocean’s hottest year. And Australia’s greenhouse emissions kept on going up. But there was some good-ish news, generally in the form of proposals and predictions, which I should get out of the way first before returning to curmudgeonliness.

1. The distinguished University of Melbourne economist, Professor Ross Garnaut, had Super-Power published by Black Inc. He was Prime Minister Hawke’s economic adviser, and a former Chairman of a bank and a gold miner, so he’s not exactly a communist. As Australia’s ex-Ambassador to China, he knows that country well too. The book is perfectly briefly summarised on the 7am podcast here (or in a less digestible one hour lecture by Prof Garnaut here). He says:

Continue reading “2019: Not Such a Good Year (Environment, Part I)”

2019: Not Such a Good Year (deaths)

I had a good enough 2019. I enjoyed interesting work, went on a trip to Singapore, Bangalore, Mysore, and Mangalore (no kidding), spent a magical Easter in Mallacoota where I have holidayed since I was a schoolboy, and enjoyed an eccentric roadtrip involving a lot of wheat and barley which took in Tittybong, Rainbow, Warne, Brim, Sea Lake and my favourite pub, the Victoria Hotel in Dimboola. Furthermore, it was suddenly insanely cool to play the flute. Jean-Pierre Rampal and James Galway could only marvel at the excessive fame of Time’s entertainer of the year, the classically trained flautist Lizzo who, it is said, also twerks, raps and sings, and is apparently an icon of a year which suddenly saw full figured women come into their own.

But 2019 did not treat well Cardinal Pell, Julian Assange and other journalists, the climate problem, China, forests, or white leftist politics.

Three interviews were notably illustrative. First, Andrew Bolt’s hectoring but nevertheless excruciating interview of Gladys Liu, the Hong Kong born federal member for Chisholm, who professed to have no recollection of her long associations with Chinese Communist Party fronts, and seemed not to want plainly to condemn the building of military bases in the middle of the South China Sea. It was part of an annus horribilis for China’s image abroad.

Second, Emily Maitlis’s interview of the Queen’s child, Prince Andrew, reminiscing about his friendship with the late alleged gigolo Geoffrey Epstein, which got him sacked from royal duties.

Third, the former accountant and former Deputy Prime Minister Barnaby Joyce’s interview of himself in his Christmas message, bizarrely predicting in relation to the climate emergency of which he is an architect that if we don’t respect ‘the higher authority, beyond our comprehension, right up there in the sky,’ ‘then we’re just fools, we’re going to get nailed’. The climate change enthusiast got 55% of the primary vote in his rural seat in this year’s federal election. Presumably his former media adviser and, as of 2019, mother of the 6th Barnababy, was not consulted about the Christmas message.

In response to Mr Joyce’s video, God sent the apocalypse and Prime Minister Morrison secretly went on Hawaiian holiday, (Fiji, where he holidayed in May was presumably no longer an option since he seriously pissed them off in August), before fleeing back to the Canberra bubble when the holiday was outed, sent in the armed forces and reservists to the initial displeasure of the firies, and promptly made a political tv ad celebrating what he had only been dragged reluctantly into by public opinion.

First, though, the deaths of 2019. Australian icons passed on: Bob Hawke, who latterly amassed a wealth of more than $50 million as a China consultant, Tim Fischer, Margaret Fulton, Clive James, Les Murray, Dimmey’s (aged 166), the Uluru climb (35 climber deaths later).

Continue reading “2019: Not Such a Good Year (deaths)”

Lawyers who are ‘law practices’: a distinction between the private and the professional hats?

The other day, the Supreme Court granted an application to dismiss a summons for taxation on the basis that, as a solicitor in sole practice, the applicant was a ‘commercial client’, to whom the costs provisions of the LPUL (including the right to seek taxation as between solicitor and own client) did not apply.

In the course of doing so it rejected an argument that she was not a commercial client because, in seeking representation in her matrimonial dispute, she was not wearing her professional hat; she was just a woman who needed a family lawyer who happened to be a solicitor.

Often enough, I come across lawyers who see distinctions between themselves and their law practices, even though they are sole traders. I have seen individuals purport to retain themselves qua law practice, and think they have to give costs disclosure to themselves. Sole traders sometimes refer in correspondence to ‘our Mr Soandso’, writing in the first person plural. One memorable former practitioner, who worked out of his home and had no staff, called his firm ‘Horak, Frankovich, Rose & Cross, Lawyers and Public Notaries’.

Continue reading “Lawyers who are ‘law practices’: a distinction between the private and the professional hats?”

Barwick v Law Society of NSW: a case note

Sir Garfield’s eldest son Ross convinced the High Court to prohibit his further prosecution in a disciplinary tribunal. Though there had been no procedural unfairness to him, a disciplinary investigation by the Law Society hadn’t followed the rules, such that the Tribunal did not have jurisdiction: Barwick v Law Society of New South Wales [2000] HCA 2; (2000) 169 ALR 236. His counsel was Major-General Paul le Gay Brereton, now a judge of the Supreme Court of NSW. In this companion post, I consider the legislative developments in relation to the provisions in question post-Barwick, in NSW, and the authorities which have applied Barwick.

Continue reading “Barwick v Law Society of NSW: a case note”

This time it’s the NSW bureaux bungling: the Great Delegation Debacle #2

Update, 6 December 2019: The Justice Legislation Amendment Act (No 2) 2019 (NSW) was assented to on 22 November 2019. Clause 1.16 of the Schedule is what you want to look at. The whole scheme the NS Welsh devised is purer than the Victorian one: their proceedings were dismissed, and costs orders made. The validating legislation allows those proceedings to be recommenced within 6 months, but the costs orders made upon dismissal stand.

Original post: Oh dear, I can feel another bit of retrospective cock-up fix-up blowing through parliament, the NSW parliament this time. Imagine how excited the pollies must be to be diverted from the drought to pass retrospective legislation which has to go through pesky scrutiny of bills committees, because the peak body of NSW Lawyers and the regulator of NSW Lawyers couldn’t draft and read a delegation properly.

A retired judge sitting in NCAT has determined that own motion investigations under the LPUL by delegates of NSW’s Legal Services Commissioner, e.g. the Council of the Law Society of NSW, have been procedurally irregular because of the terms of the relevant delegation, robbing NCAT of jurisdiction in two cases which have fallen over and probably revealing past decisions to have been nullities notwithstanding that the point was not taken in them.

The leading decision is Council of the Law Society of NSW v DXW [2019] NSWCATOD 101, a decision of the Hon. Frank Marks, a Principal Member. He said, in a nutshell: to have a valid prosecution, you must have a complaint made to the Commissioner or an own motion investigation commenced by the Commissioner. Here there was no complaint, because the Law Society was not a delegate of the Commissioner’s power to make a complaint to himself, i.e. commence an own motion investigation, but had purported to make a complaint to itself, then investigate it, then decide to prosecute it and then prosecute it, all while the Commissioner apparently went about his other business. No complaint, no jurisdiction, case dismissed.

Council of the Law Society of NSW v Judah [2019] NSWCATOD 135 simply applies DXW and is noteworthy principally because the Tribunal of Deputy President Westgarth and two others awarded costs of the proceeding to the practitioner, finding that the commencement of the ‘proceedings otherwise than in conformity with the provisions of the Uniform Law’ was a ‘special circumstance’ which justified the costs order against the Commissioner.

As to the Great Delegation Debacle #1, see this blogpost. I tell, you, whenever you’re litigating against Legal Services Commissioners, you should always call for and inspect the instruments of delegation by which various actors in the disciplinary process acted. The delegations are sometimes set out in the Commissioners’ annual reports, and the current delegations by the VLSC are here. Sometimes, they get them wrong (watch this space…).

Continue reading “This time it’s the NSW bureaux bungling: the Great Delegation Debacle #2”

The Great Transitional Provisions Debacle #2

The Legal Profession Uniform Law commenced in Victoria and NSW on 1 July 2015. The Legal Profession Act 2004, which created the statutory office of Legal Services Commissioner was repealed at the same time, though transitional provisions gave the Act, and the office, ongoing operation. As explained by my last post, the new statutory office of Victorian Legal Services Commissioner was created. The Legal Services Commissioner was to tidy up part-complete complaints and disputes unless regulations specified a substitute (e.g. the Victorian Legal Services Commissioner). No such regulation was made until just the other day. Michael McGarvie retired. Fiona McLeay was appointed Victorian Legal Services Commissioner in February 2018.

All new complaints were to be made to the Victorian Legal Services Commissioner, or so it seemed. Transitional provisions are found in Schedule 4 of the LPUL. Clause 27 appears to state specifically what is to happen in the case of a complaint first made post-LPUL about pre-LPUL conduct, whether the complaint is characterised as a simple consumer matter, a consumer matter which is a costs dispute, a disciplinary matter, or some combination of those things. It commences:

This clause applies to conduct that– (a) happened or is alleged to have happened before the commencement day; and (b) could have been, but was not, the subject of a complaint (or, if relevant, a request for dispute resolution).

If that condition is satisfied, the investigation may be commenced under the LPUL. Then the LPUL applies ‘with the necessary modifications’, so long as ‘an investigation of the relevant kind could have been commenced under the [Legal Profession Act 2004] in relation to the conduct had the old legislation not been repealed.’ The Victorian Legal Services Commissioner can’t take disciplinary action which is more onerous than the Legal Services Commissioner could have taken under the 2004 Act. Whatever ‘disciplinary action’ means, it is unlikely to refer to action taken in or following an investigation of or attempt to resolve a complaint to the extent that the Commissioner characterises it as a ‘consumer matter’, rather than a ‘disciplinary matter’.

The language is a bit vague because it had to deal with the transition between two different states’ Acts which were repealed and substituted with the LPUL. Perhaps it is that vagueness which has had an unfortunate result. That result is that the Costs Court has made a ruling which the Victorian Legal Services Commissioner interprets as depriving her of LPUL jurisdiction to deal with complaints she characterises as consumer matters where the conduct in question pre-dates 1 July 2015 and perhaps even where the conduct in question post-dates 1 July 2015 but is in relation to a matter in which instructions were first taken before 1 July 2015.

The consequence is that since the Costs Court’s decision, consumers with complaints about their lawyers’ pre-1 July 2015 conduct have been deprived of rights they might reasonably think parliament intended to bestow on them, including the right to have expert, costs-free, extra-curial determination by the Victorian Legal Services Commissioner of costs disputes and negligence claims, the right to have consumer matters ‘investigated’, and the right to go to the Commissioner’s office with disputes where the total fees are up to $100,000 or more, instead of only disputes where the fees are up to $25,000.

The LPUL wrought big changes in this space in Victoria. Previously, the Legal Services Commissioner could only attempt to resolve what were called under the Legal Profession Act 2004 ‘civil complaints’ (the species of which were ‘costs dispute’, ‘pecuniary loss dispute’, and ‘other genuine dispute’). if he failed, the parties had to fund and bring VCAT proceedings themselves, exposing themselves to the risk of an adverse costs order. Under the LPUL, the Victorian Legal Services Commissioner is made into a decision maker, the go to decision maker for disputes about comparatively small amounts of fees ($10,000 or less).

The Commissioner must deal with all complaints properly made: s. 315. She can investigate and deal with complaints which she characterises as costs disputes where the total fees are less than $100,000 or where the fees which are in dispute are $10,000 or less excluding GST. She can make determinations in relation to disputed costs of up to $10,000 plus GST. (It is not the case that her dispute resolution and investigation powers are available only where the total fees are $10,000 or less or the amount of fees in dispute is less than $10,000. All that is limited is her power to make a binding decision. Investigation using her powers of compulsion, and expert free dispute resolution services are still of enormous benefit to punters even if, at the end of those processes, they still have to go off to the Costs Court or VCAT to have their costs dispute determined.)

The purpose of this post is to consider the Costs Court’s decision, Sullivan v Snodgrass, unreported, 23 October 2017 (I can send you a copy), and the Victorian Legal Services Commissioner’s interpretation of it. I conclude that there are arguments to be made against the finding made by the Costs Court, and in any event, the Court’s reasoning can have operation only in relation to post-1 July 2015 complaints about legal costs because the reasoning depends on cl. 18 of the transitional provisions, and that clause only preserves the operation of provisions relating to legal costs. Even while the Costs Court’s decision stands, the Commissioner would appear to have full power under the LPUL to investigate, attempt to resolve, and determine post-1 July 2015 complaints about pre-1 July 2015 conduct except to the extent that the complaint falls within the 2004 Act’s provisions about civil complaints which are costs disputes. Very likely, the Victorian Legal Services Commissioner could circumvent this finding of the Costs Court by characterising a post-1 July 2015 complaint about a matter in which instructions were first given before 1 July 2015 as a disciplinary complaint.

Why the powers that be didn’t fix this problem while they were fixing the Great Transitional Provisions Debacle #1 is a mystery to me.

Continue reading “The Great Transitional Provisions Debacle #2”