From the latest newsletter of Queensland’s Legal Services Commissioner, we learn that he is tentatively of the view that incorporated legal practices are required to give itemised bills within 7 days of a ‘consumer’ client’s request. Certain others may be in other situations as well, by virtue of the extended operation of the Australian Consumer Law as a law of the Commonwealth provided for by s. 6 of the Competition and Consumer Act 2010 (Cth) (good luck working out what that provision means in a hurry). I raised this possibility back here, and have been meaning to get around to working out exactly how s. 161A of the Fair Trading Act 1999 (Vic) operates ever since. Section 161A is the Victorian analogue of the Queensland provision s. 55 referred to below. Kudos to the Commissioner for putting out for comment a discussion draft of a future regulatory guide ‘The Application of the Australian Consumer Law to Lawyers’. See also the ACCC’s publication ‘The Professions and the Australian Consumer Law’. The Commissioner’s tentative analysis is reproduced below. What I want to know next is what the consequences are if s. 101 of the Australian Consumer Law is breached.
‘The ACL is ‘generic’ consumer protection legislation. The Legal Profession Act 2007 (LPA) is specialist consumer protection legislation directed solely to the regulation of lawyers and the provision of legal services and related matters. The ACL complements and sits side by side with the LPA, both governing the conduct of lawyers.
The ACL applies as a law of Queensland and as a law of the Commonwealth of Australia. Where remedies are available under the LPA and the ACL it is necessary to think about whether the ACL applies as a law of Queensland or a law of the Commonwealth. The following table summarises the situation for lawyers operating in Queensland:
[a table then asserts that the ACL as a law of Queensland and the Legal Profession Act 2007 (Qld) operate concurrently in relation to sole practices including barristers, and to partnerships, while those Acts operate concurrently with the ACL as a law of the Commonwealth in relation to incorporated legal practices].
…
The ACL includes a number of provisions relating to invoices and bills. The effect of section 100 is that a lawyer must provide his or her client with a proof of transaction. A tax invoice will satisfy this requirement.
The ACL, like the LPA deals with itemised bills. Both laws require a legal practice to issue an itemised bill if the client requests it. However the time allowed for issuing a bill is different.
• Section 332 of the LPA allows for 28 days
• Section 101 of the ACL allows only 7 days.
It is important to note that the LPA applies to all lawyers’ bills. The ACL only applies to bills for clients who fit the definition of “consumer”. [fn: As defined in the ACL, that is, where the amount of the service is less than $40,000 or is for personal, domestic or household purposes.]
The inconsistency in relation to consumer bills is partly resolved by s55 of the Fair Trading Act 1989 (Qld). This confirms that a legal practice has 28 days to provide an itemised bill. However, this applies only to legal practices that are subject to the operation of the ACL as a law of Queensland, and not as a law of the Commonwealth.
For legal practices that are subject to the ACL as a law of the Commonwealth, section 55 of the Fair Trading Act has no effect and the inconsistency remains. Under section 109 of the Australian Constitution, laws of the Commonwealth prevail over laws of the States. This means that incorporated law practices, and others covered by the extended operation of the ACL as a law of the Commonwealth, are required to provide an itemised bill to consumers within 7 days of request.’
