Posted on

Lodging a civil complaint with the Legal Services Commissioner limits you to compensation of $25,000 per complaint

First of all, happy new year!

The take-home point of this post is that if you lodge a civil complaint (e.g. a pecuniary loss dispute or a costs dispute) with the Legal Services Commissioner, you limit the amount of compensation you can get in VCAT to $25,000 because of s. 4.3.2(1)(c) of the Legal Profession Act, 2004. That prevents the commencement of proceedings in relation to the subject matter of the complaint until the complaint has been finally determined, or dismissed, by which time it will often be res judicata, at least in those cases where the final determination is by VCAT or the Supreme Court or the Court of Appeal (subject, perhaps, to (i) the operation of s. 4.2.14(2), which is what the Court of Appeal calls the ‘two bites of the cherry’ provision, and (ii) the possibility of adding a Fair Trading Act, 1999 cause of action to a proceeding originally instituted in VCAT under the Legal Profession Act, 2004, discussed below).  In this touchy feely win win alternative dispute resolution Civil Procedure Act, 2010 world, it is apparently anomalous that those who choose to travel to VCAT’s Legal Practice List via the obvious alternative dispute resolution channel (i.e. via a civil complaint to the Commissioner’s dispute resolution jurisdiction) are penalised so severely in comparison with those who proceed immediately to litigation in that List by invoking the parallel jurisdiction of the Fair Trading Act, 1999. Continue reading “Lodging a civil complaint with the Legal Services Commissioner limits you to compensation of $25,000 per complaint”

Posted on

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. Continue reading “60 days for referring pecuniary loss disputes to VCAT extendable”

Posted on

Latest on whether solicitors engage in trade or commerce: part I

Leong v J P Sesto & Co [2009] VCAT 99 is the latest in the on-again off-again saga of whether solicitors engage in trade or commerce, and, whether, if not, it means that VCAT does not have jurisdiction over claims involving them, and if so, which claims. Senior Member Vassie considered the question in the context of an application to set aside a costs agreement. It was heard in October 2008 and decided on 30 January 2009. The NSW Court of Appeal’s decision in Kowalczuk v Accom Finance [2008] NSWCA 343, decided on 10 December 2008 was not referred to (see Part II).

The application was made on the orthodox basis (under the predecessor of the Legal Profession Act, 2004) and supplemented by somewhat half-hearted arguments under the Fair Trading Act, 1999, the state equivalent of the Trade Practices Act, 1974. The law is quite clear that regardless of whether lawyers engaged in their core professional roles of representation and advising are engaged in in trade or commerce (the traditional view is that they are not), some aspects of their businesses are. What this decision says is that in negotiating fees, lawyers are engaging in trade or commerce, and so causes of action which seek relief in relation to costs agreements under the Fair Trading Act, 1999 and which are dependent on conduct in trade or commerce are available to clients. (It might be worth tucking away for future thought whether a lawyer who does not negotiate and seeks to recover fees only on scale or practitioners remuneration order, could be said to be engaging in trade or commerce, but it is unlikely such a costs agreement would be the subject of an application to set it aside.)

The decision also asserts that the Fair Trading Act, 1999‘s definition of ‘services’ requires that the services be in trade or commerce, contrary to an earlier considered decision of the Legal Practice List, which it seems may not have been cited to Senior Member Vassie. No argument on this point is recorded in the decision. Ironically, if this decision is followed, the result may be a narrowing of VCAT’s jurisdiction, because in those causes of action which do not specifically require conduct in trade or commerce, but require ‘services’, VCAT’s previous position was that the services did not have to be in trade or commerce to come within the definition, because though the words ‘trade or commerce’ appeared in the definition, the definition was inclusory, and only ‘included’ certain conduct in trade or commerce, rather than mandating ‘trade or commerce’ as an essential characteristic of activity falling within the meaning of ‘services’. An example of such a jurisdiction is the one to resolve ‘consumer-trader disputes’, a jurisdiction which essentially grants to VCAT common law jurisdiction enhanced by special legislative powers over all disputes arising directly out of the provision of services, regardless of their value. In those instances of lawyers’ conduct which are not engaged in in trade or commerce, Senior Member Vassie’s construction of the Act would deny VCAT jurisdiction where it would otherwise have had jurisdiction by virtue of the expansive construction of the definition of ‘services’. (Note that J P Sesto & Co v Jadewealth Pty Ltd [2009] VCAT 80 is essentially the same judgment in the same case.)

What Senior Member Vassie said was: Continue reading “Latest on whether solicitors engage in trade or commerce: part I”

Posted on

Is interest a form of relief VCAT can grant?

In a long-wnded way, I tentatively suggest that, so long as the applicant has the sense to invoke s. 108 of the Fair Trading Act, 1999, then penalty interest is available under the Supreme Court Act, 1986, just like in the Supreme Court, so long as the dispute is a consumer-trader dispute. That is, a dispute between a purchaser or potential purchaser and a supplier or potential supplier of goods and services, broadly defined. There are some causes of action which come with specific interest provisions too, like the one attached to costs disputes under the Legal Profession Act, 2004.

Continue reading “Is interest a form of relief VCAT can grant?”

Posted on

VCAT’s Vice-Prez confirms lawyers do not engage in trade or commerce

In Walsh v PJCC&A Pty [2008] VCAT 962, beneficiaries of an estate were critical of the testator’s lawyers before death. They became his executors after his death, and appointed the firm they worked for as their solicitors. The beneficiaries sued the firm, and its solicitor-executors for unconscionable conduct and misleading or deceptive conduct. Their beef was the level of fees charged by the firm in the context of the executors having left all of the work of the administration of the estate to the firm as their solicitors, and yet having scooped up the 3% executors commission provided for in the will. Judge Harbison summarily dismissed the whole case principally on the basis that when they engage in professional work, lawyers do not engage in trade or commerce, as required by both causes of action under the Fair Trading Act, 1999. The trade or commerce requirement was a jurisdictional issue, she said, for the applicants to establish at the outset of the case, not something for the respondents to establish the absence of. It was permissible, and quite possible, to determine the question by reference to the particulars of dispute so long as they were articulated sufficiently.

Interestingly, despite numerous strike out applications, a professional negligence claim against solicitors  pleaded as a misleading and deceptive conduct case has survived in Western Australia, though it is not clear that anyone has taken the point that lawyers do not engage in trade or commerce in that case: Alpine Holdings Pty Ltd v Feinauer [2008] WASCA 85.

Continue reading “VCAT’s Vice-Prez confirms lawyers do not engage in trade or commerce”

Posted on

More cases

I only just caught up with the fact that the Court of Appeal has overturned Justice Gillard’s decision in Kabourakis v Medical Board of Victoria [2005] VSC 493, the subject of an earlier post. See [2006] VSC 301.

VCAT’s Vice President Harbison, sitting in the Legal Practice List for the first time I am aware of, has contributed what appears to be a most interesting addition to the authorities about whether solicitors engage in trade and commerce for the purposes of the Fair Trading Act, 1999 (and, by analogy, of the Trade Practices Act, 1974), and whether solicitors may ever be sued under the Fair Trading Act, 1999. As to which, see this earlier post. The decision is Walsh v PJCC&A Pty [2008] VCAT 962 which I will certainly be posting a detailed analysis of.

Then a NSW decision has illustrated again the problem of sloppy regulators failing to consider whether what purports to be a complaint received by them is in fact a complaint as defined by the Act which regulates them (an allegation in both of the cases noted here). This time it was NSW’s Legal Services Commissioner, Steve Mark, getting bashed up by the NSW Administrative Appeals Tribunal’s Legal Services Division in Legal Services Commissioner v SG [2008] NSWADT 48:

’64 As stated, Mr Mark determined that a complaint had been made of deliberate charging of grossly excessive amounts of costs, when no such complaint had been made.

65 Without any further evidence or effort to obtain a valid expert opinion, the LSC instituted the complaint and brought this matter before the Tribunal on the equivocal opinion expressed by Mr McIntyre. Samantha Gulliver investigated the complaint on behalf of Mr Mark, however what, if anything, resulted from such investigation was not placed before the Tribunal. Continue reading “More cases”

Posted on

VCAT rewrites unrepresented man’s misconceived application

Slobodan Catovic did not want to pay his solicitor’s bill. He misconceivedly invoked the Legal Profession Act, 2004 provision which allows clients to apply to set aside costs agreements, but that is not what he wanted to do. Senior Member Howell satisfied himself that Mr Catovic had intended to bring an application under the Fair Trading Act, 1999, and ordered that the application be treated as a small claim under that Act. He even told the Registrar to refund Mr Catovic the difference between the fee on an application to set aside a costs agreement and the paltry fee payable on the institution of a small claim under the Fair Trading Act, 1999. See Catovic v H Solicitors [2008] VCAT 840. On the propriety of the cross-fertilisation of VCAT’s jurisdictions, see also this post.

Posted on

Can lawyers sue and be sued under the Fair Trading Act, 1999?

It is well established in VCAT that when doctors and lawyers engage in professional activities in the course of their retainers, e.g. by giving advice, interviewing witnesses, and representing clients, they do not engage in trade or commerce: see for example Stagliano v Duke [2007] VCAT 1070, which I posted about here. Most Fair Trading Act, 1999 causes of action are available only in respect of conduct in trade or commerce. But is the workaround its consumer and trader dispute jurisdiction? The authorities are at odds with one another. Continue reading “Can lawyers sue and be sued under the Fair Trading Act, 1999?”

Posted on

Sudden eruption of unconscionability amongst solicitors further documented

Updated, 4 January 2008: See the underlined additions below (with thanks for the references to Jason Pizer’s book at p. 246).

Original post: Now two unrepresented folk have managed to convince VCAT’s Legal Practice List’s Member Butcher in a Fair Trading Act, 1999 claim that yet another solicitor has been acting unconscionably towards his clients in relation to fees. The decision in Alexander v HWL [2007] VCAT 2297 (and two earlier decisions posted about here and here and here) suggests two separate schisms between VCAT’s decision makers:

  • The first between those who hold that solicitors engage in trade or commerce when they provide professional services to clients (such as Member Butcher) and those who hold that they do not (such as Senior Member Howell and Deputy President Steel); and
Posted on

Legal Practice List guru to give VCAT seminar

There’s a seminar coming up in exactly a week’s time at the Law Institute at which Alan Hebb is going to speak on disputes in VCAT’s Legal Practice List. He’s a good bloke and has more experience there than anyone else. He was very often briefed as Counsel Assisting the Tribunal, both at the Legal Profession Tribunal and at VCAT. Speaking generally, ‘Counsel Assisting’ are generally cast in the role of prosecutors. It is usually an office associated with disciplinary prosecutions and royal commissions. Though the old Tribunal, and now VCAT have important disciplinary jurisdictions, this was not Alan Hebb’s role.

Until very recently, when the practice was — so I hear — abandoned, Counsel Assisting were briefed by Legal Practitioners Assisting the old Tribunal, and then by Legal Practitioners Assisting VCAT’s Legal Practice List, to take otherwise unrepresented claimants through their evidence and cross-examine lawyers in professional negligence claims under the Legal Practice Act, 1996 and then the Legal Profession Act, 2004. They did not act for the claimants though, and were proscribed by the terms of their brief from giving legal advice. I hear too that the Legal Practitioners Assisting the Legal Practice List are no longer employed in that capacity.

One might think these two developments to be a terrible thing which has quietly slipped under the radar. In the case of the office of Counsel Assisting, I am not so sure, not because of any deficiency in those who held the office, who did a very diligent job fairly in often difficult circumstances, but because of what I perceive, at least in some cases, to be a structural difficulty with the whole concept of ‘counsel assisting’ a civil tribunal hearing a private civil dispute.  I think it comes down to this: if the aim was to even up the playing field between unrepresented claimants and solicitors, perhaps what needs to happen is to simply pay for a barrister to appear for the claimant.  That may be politically impossible, and would amount to an ad hoc form of legal aid. Here’s why I think that, based on years of experience. Continue reading “Legal Practice List guru to give VCAT seminar”

Posted on

2nd edition of Professional Liability in Australia reviewed

I was already a fan of the first edition of Judge Stephen Walmsley SC, Alister Abadee, and Ben Zipser‘s excellent Professional Liability in Australia, published by Thomson, and had been waiting for the new edition with interest. I got myself a copy the other day. It’s good, and there are substantial additions since the first edition, including a lot on expert evidence, a new bit on professional discipline, analysis of the Financial Services Reform Act, 2001, analysis of the cases on the civil liability acts and a good analysis of proportionate liability.

It is a text which delves into all of the legislation which clusters around professional liability these days and grapples with it, a thankless task for an Australian text writer compelled to read and understand all of the states’ and territories’ regimes and then synthesise them. So the availability of compensation in professional discipline regimes is treated properly, as is the effect of professional standards legislation, which caps liability for scheme mebers. The research is wide-ranging and thorough: a VCAT decision is cited. It is written from a practical perspective rather than a theoretical perspective. There is not the over-reliance on English authority which sometimes characterises texts in this area. The writing tends to take positions rather than carrying on at great length about parallel or divergent lines of authorities without suggesting which is to be preferred. One suspects that bad decisions have simply been ignored in the hope that they will be forgotten. If only more text writers would operate in this fashion.

Professional negligence is one of those areas of law in which everyone claims to be a specialist. There are, for example, 387 barristers at the Victorian Bar who claim on their web profile to practise in professional negligence. Then there are undoubtedly many others, like me, who haven’t listed their practice areas using the scheme which allows for searching like that.

Thomson has kindly offered a 10% discount for readers of this blog if you go to their bookshop at 160 William St, Melbourne. Alternatively, the book can be purchased online, for $220 inclusive of postage and handling.

Continue reading “2nd edition of Professional Liability in Australia reviewed”

Posted on

Unconscionability and legal fee estimates, again

The law of unconscionable conduct has been rolled out again as a vehicle to adjust lawyers’ fees in the same way as they might be in a civil costs dispute under the Legal Profession Act, 2004, but in a case to which that Act’s regime did not apply. It has happened once before to my knowledge (see my previous post). In P&R v. Goodwin [2007] VCAT 1199, solicitors sued for their fees, but succeeded in obtaining an order only for the difference between the amount they estimated total legal fees to be at the start of the retainer, and the amount they had already been paid by the client. I do not think VCAT has jurisdiction in relation to disputes between lawyers and clients, because the jurisdiction is predicated on the engaging in of trade or commerce (VCAT has reserved on a test case in that regard). That aside, it is a relatively attractive forum in which to sue for fees. This decision may suggest that it is better to sue in a court, however, unless there is an unusual squeaky cleanliness in following the costs disclosure regime. Continue reading “Unconscionability and legal fee estimates, again”

Posted on

Doctor’s opinion not given in trade or commerce so VCAT had no jurisdiction

In a landmark decision with profound implications for VCAT’s Fair Trading Act, 1958 jurisdiction over lawyer-client disputes about professional negligence and fees, a Deputy President of VCAT has recognised that it did not have jurisdiction to hear a former client’s misleading and deceptive conduct claim brought against ‘a professional’ in the traditional sense of the word, in relation to professional advice. The claim was brought under s. 9 of the Fair Trading Act, 1958 (the state analogue of s. 52 of the Trade Practices Act, 1974), which says:

“(1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive”.

The case is Stagliano v Duke [2007] VCAT 1070. The applicant was injured at work, and made a Workcover claim. His employer’s Workcover insurers had him examined. The doctor wrote a report and sent it to the insurer. That professional opinion was not given in trade or commerce, even though it was given pursuant to a contract with the insurer, and for a fee, Deputy President Steel held, for the following reasons: Continue reading “Doctor’s opinion not given in trade or commerce so VCAT had no jurisdiction”

Posted on

Summary dismissal in a solicitors’ negligence claim at VCAT

Skinner’s Case [2007] VCAT 917, a claim against a leading labour law firm, was for some reason heard in VCAT’s Civil List. A more likely list would have been the Legal Practice List, given that it was a professional negligence claim, albeit one pleaded under the Fair Trading Act, 1999 and the Trade Practices Act, 1974. But Mr Skinner, a self-represented litigant with an enthusiasm for internet research and a copy of Pizer’s Annotated VCAT Act under his arm, came up against the Acting President, Judge Bowman, who turfed his $400,000+ claim out as doomed to fail and as an abuse of process. Yet another failed regretted settlement claim bites the dust. The only pity is that this proceeding was allowed to wallow for 2 years, while repeated directions of the Tribunal requiring witness statements and an intelligible statement of claims against the solicitors were ignored. The solicitors did not claim advocates’ immunity in respect of the suit, despite the availability of such a plea: Biggar v McLeod [1978] 2 NZLR 9; O’Connor-Sraj v Lawrence [2005] VCC 1093. Continue reading “Summary dismissal in a solicitors’ negligence claim at VCAT”

Posted on

The new contract law: a Fair Trading Act claim against Kennard’s Self-Storage

In Kimitsis v Kennards Self Storage [2007] VCAT 668, a man put some things into a Kennard’s self-storage facility. He paid the licence fees for a while, but then fell into arrears, and was uncontactable for two months from the time he put the things into the stroage unit. A written warning went unheeded, but there was a bit of a mix-up with the post. Kennard’s forcibly entered the storage unit and sold the stored things, as it was entitled to do under the contract. But it did so unbeknownst to the man, at what he considered to be an obscene undervalue. The contract said Kennard’s did not take possession of the goods and was not a bailee of them. It did not have a key to the storage unit, and did not know what was inside. Neither warehousemen’s legislation — which required sale of the goods at public auction — nor the law of bailment was accordingly found to apply. Kennard’s was found to have breached an implied contractual duty to sell the goods as well as possible. The result was that Kennard’s was ordered to pay damages. It just so happened that those damages were precisely equivalent to the arrears of licence fees owed by the man. Continue reading “The new contract law: a Fair Trading Act claim against Kennard’s Self-Storage”

Posted on

VCAT’s Civil List engenders “a sea of misunderstanding”

Coggin’s Case [2007] VCAT 266 is an illustration that the merger of the former Legal Profession Tribunal with VCAT is still being worked out. Senior Member Howell described what had been engendered as ‘a sea of misunderstanding’. Unless you are interested in the procedures of VCAT’s Legal Practice List, you will find this post very boring. Continue reading “VCAT’s Civil List engenders “a sea of misunderstanding””

Posted on

Cross-fertilisation of VCAT jurisdiction under separate enabling acts

In Director of Housing v Young [2002] VCAT 227, Deputy President Levine decided that a $14,000 residential tenancy claim of a kind in which VCAT’s jurisdiction was limited to $10,000 could be brought pursuant to the Fair Trading Act, 1999 as what is now described as a “consumer-trader dispute” because the Fair Trading Act, 1999 was enacted after the Residential Tenancies Act, 1997. He also decided that a case brought under one Act in the associated List may plug gaps in that List by invoking jurisdiction in another Act associated with another List and the whole lot may be heard at once by a member of the first List. Continue reading “Cross-fertilisation of VCAT jurisdiction under separate enabling acts”

Posted on

How a case half in and half out of the limitation period is dealt with

The approach of VCAT’s Legal Practice List to a nice limitations point is illustrated by Wells’s Case, [2006] VCAT 2370 (Senior Member Howell, 16 November 2006), also the subject of this post. What must have been a professional negligence action was commenced just 4 days before the 6th anniversary of the Legal Practitioner ceasing to act for the Client. The limitation period was such that only actions arising in the 6 years before the claim would be within time. The Client said the Legal Practitioner negligently failed to do various things. VCAT decided that only the Legal Practitioner’s conduct during the 4 days during the retainer but within the 6 years before the claim could be enquired into. Continue reading “How a case half in and half out of the limitation period is dealt with”

Posted on

Section 108 Fair Trading Act, 1999 and chains of suppliers

Section 108 of the Fair Trading Act, 1999 gives VCAT the power to hear and determine consumer and trader disputes, defined by s. 107 (so far as is relevant to this note) to mean a claim in negligence, nuisance or trespass in relation to a supply of services arising between a purchaser and supplier of services. In Wizardry Kennels v Paul Hamilton [2006] VCAT 2368, Judge Bowman found that he had no jurisdiction to entertain a claim by a purchaser against a person in the chain of supply with whom he did not have a contract. Continue reading “Section 108 Fair Trading Act, 1999 and chains of suppliers”

Posted on

Res judicata: VCAT strikes out case previously decided by Legal Profession Tribunal

Wells’s Case [2006] VCAT 2370 (Senior Member Howell, 16 November 2006)

I have always thought I was the only person in the world who held the view that an unsuccessful claimant in the Legal Profession Tribunal was not allowed, despite s. 133(2) of the Legal Practice Act, 1996 to have a second go in the courts, even though a successful claimant was allowed to do so. I probably wasn’t, since that’s what Senior Member Howell (formerly the Tribunal’s Registrar) decided in VCAT the other day, and he has probably always thought the same way. Continue reading “Res judicata: VCAT strikes out case previously decided by Legal Profession Tribunal”