60 days for referring pecuniary loss disputes to VCAT extendable

I was reminded when reading Sibonna Nominees v R Legal [2009] VCAT 893 that the 60 day period after the Bureau de Spank gives a punter a ticket under s. 4.3.7 of the Legal Profession Act, 2004 to enter VCAT for adjudication of an unresolved civil complaint of the species ‘pecuniary loss dispute’ is extendable under s. 126(1) of the VCAT Act, 1998 (‘[VCAT], on application by any person or on its own initiative, may extend any time limit fixed by or under an enabling enactment for the commencement of a proceeding.’)  Well, to be honest, which I’m trying to be more and more, ‘reminded’ is a euphemism.  Anyway, sitting there, just behind s. 127 which I have been skirmishing about in VCAT just this week, lay s. 126.  No doubt I should have known about it, but the reason I did not is interesting.  No one does what Sibonna Nominees was doing any more.  These kind of ‘pecuniary loss disputes’ in the old Legal Profession Tribunal were my bread and butter for a while, when I was a solicitor.  Now, punters generally just go under the Fair Trading Act 1999‘s consumer and trader dispute jurisdiction: s. 107ff.

Prosecuting a negligence claim against solicitors in VCAT under the Legal Profession Act, 2004 has the disadvantage of a $25,000 limit per claim per person, whereas the Fair Trading Act, 1999’s jurisdiction is unlimited.  I was wondering why the solicitors in this case bothered to oppose the application to extend time when presumably the Fair Trading Act avenue was always open as an alternative.  Both kinds of dispute end up before the same decision makers in the Legal Practice List, and I would be surprised if VCAT did not consider that the Fair Trading Act, 1999 empowers it to make all of the orders which the Legal Profession Act, 2004 empowers it to make.  Anyone got a theory apart from the risk that the Fair Trading Act, 1999 jurisdiction might be found to require conduct in trade or commerce and the solicitors might be found not to have been so engaged?

It made me wonder whether VCAT would regard its powers under the Legal Profession Act, 2004 as more limited (except in relation to the $25,000 compensation limit) than under the Fair Trading Act, 2004, assuming the powers under the latter Act were available in the circumstances of the particular claim.  I wondered whether content could be given to the ‘any other order the Tribunal thinks fit’ head of power under each (see s. 4.3.17(f) of the Legal Profession Act, 2004) by the concurrent bestowal of overlapping powers on the same tribunal by the VCAT Act, 1998.  If the Fair Trading Act, 1999 could regulate a dispute of a certain kind, if only it were invoked by the claimant, and the Legal Profession Act, 2004 could also apply, and is invoked by the claimant, the latter Act provides to VCAT a power to  make ‘any order it thinks fit’ other than the ones expressly suggested.  Why wouldn’t VCAT inform itself of the parliament’s intentions in relation to that omnibus power by the examples it gave in the Fair Trading Act, 1999 of appropriate orders to make in a class of disputes which includes the one at hand, even though the latter Act has not specifically been invoked?

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