Summary The Legal Profession Act 2004 was repealed on 1 July 2015.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.
Detail During the lifetime of the Legal Profession Act 2004 the VCAT Act 1998 had a provision (cl. 46D in sch. 1) which disapplied s. 109 of the VCAT Act 1987 (a costs provision providing that prima facie, there should be no orders as to costs in VCAT) and said that in disciplinary prosecutions under the Legal Profession Act 2004 where the practitioner is found guilty of unsatisfactory professional conduct or professional misconduct, the practitioner must be ordered to pay costs unless there are exceptional circumstances, and the Commissioner must not be ordered to pay costs except in special circumstances.
This provision operated in the following way. Sections 39 and 58 of the VCAT Act 1998 explains that Parts 3 and 4 set out the Tribunal’s jurisdiction, functions, and procedure, and Schedule 1 sets out variations for ‘certain types of proceedings’.
Then Schedule 1 set out many variations to the norm provided by the Act depending on which enabling Act’s grant of jurisdiction to VCAT was in play. Variations when VCAT’s Legal Profession Act 2004 jurisdiction was invoked were in Part 13A of Schedule 1.
The Legal Profession Uniform Law Application Act 2014 not only repealed the Legal Profession Act 2004 (the Legal Profession Uniform Law, Schedule 1 to the Legal Profession Uniform Law Application Act 2014 took over), but s. 160 and cl. 105 of schedule 2 amended Part 13A so that it no longer applied to proceedings invoking VCAT’s Legal Profession Act 2004 jurisdiction but instead applied only to proceedings invoking VCAT’s Legal Profession Uniform Law jurisdiction.
I cannot see any transitional provisions which preserve the operation of the old version of cl. 46D. Anyone have a theory as to how the Commissioner could legitimately use cl. 46D to claim costs in disciplinary hearings in which she has invoked VCAT’s Legal Profession Act 2004 jurisdiction?
If not, and costs orders have been made pursuant to the amended cl. 46D provision when it had no operation, those orders are nullities (see The Herald and Weekly Times Pty Ltd v Victoria  VSCA 146 at ) and as a model litigant, one would hope that the Commissioner would repay costs paid under such orders.
In a recent case I did, the Commissioner said s. 14 of the Interpretation of Legislation Act 1984 justified its recourse to the old version of cl. 46D, in a proceeding instituted after 1 July 2015. Here’s a link to the provision so you can make up your own mind about the correctness of this argument which presumably relies on sub-s. (2)(e) (‘Where a provision of an Act is amended, the amendment shall not unless the contrary intention expressly appears affect any right or privilege acquired under that provision.’)
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- “VCAT may make orders of a transitional nature” read down
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