VCAT runs out of patience with serial adjourner

I was drinking beer at The Peacock the other afternoon, and a VCAT member was muttering about the Supreme Court overturning VCAT decisions on the basis that applications for adjournment were not granted when they could have been cured by an order for costs. The suggestion was that the Court may have overlooked the fact that no costs are awardable in certain classes of cases. The other point was that in many lists, like the civil list, members are expected to churn through a case an hour, without the assistance of counsel on which decision makers generally rely on so heavily.

My conversation came back to me while reading HL v Fahey [2007] VCAT 2400, a case about Ms Fahey’s dissatisfaction with a bill for $1,199. Ms Fahey successfully sought 2 adjournments. The first time, she had to go to Norway for a qualifying competition for the Olympics. Her game is dressage. The second time, she simply wrote in sick. The third time, she attached a sick note from a doctor. VCAT told her that administrative adjournments were over and told her to come to the hearing and make her application there, and to be ready to proceed if she failed. She did not turn up, and so an order was made against her. She sought a review, akin to an application to set aside a default judgment. She sent a fax to VCAT at 9.36 a.m. before the 10 a.m. hearing in which she said she was ‘unable to attend today’s review hearing due to extreme illness’, and concluded ‘I will contact you again in the future to arrange a new review date.’ That attempt to direct the Tribunal to adjourn failed, and Senior Member Howell heard the case in her absence, saying: Continue reading “VCAT runs out of patience with serial adjourner”

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”

VCAT does not invoke Fair Trading Act to cure want of Legal Profession Act jurisdiction

In Huang’s Case [2007] VCAT 1692, Senior Member Howell was presented with a case brought by a man who had initiated the Legal Profession Act, 2004‘s lawyer-client costs dispute process by lodging a civil complaint with the Legal Services Commissioner. The scheme of the Act is that the Commissioner tries to settle the dispute, and if she can’t, she gives the punter a ticket to take the dispute to the next level, VCAT’s Legal Practice List: s. 4.3.7. Mr Huang jumped the gun, and didn’t wait to get his ticket before commencing VCAT proceedings.

Senior Member Howell dismissed the dispute for want of jurisdiction. Because of the implied repeal of the (Victorian) Legal Profession Act, 2004 insofar as it relates to many aspects of solicitor-client costs charged in Family Court proceedings by the (Commonwealth) Family Law Act, 1975, there was no discussion of recognising a jurisdiction under s. 108 of the Fair Trading Act, 1999 and using that to establish jurisdiction. Very appropriate too, since it would be logical that the Fair Trading Act, 1999 is no less impliedly repealed in its application to lawyer-client costs disputes which are governed by the Family Law Act, 1975 than the Legal Profession Act, 2004. Continue reading “VCAT does not invoke Fair Trading Act to cure want of Legal Profession Act jurisdiction”

Home Office v Harman: some law about its application to VCAT

This is a workmanlike little post, designed simply to trap into the world of this blog for when I need them next in court the legal principles discussed in Acting President Bowman’s decision in ZGW v Legal Services Board [2007] VCAT 1406, casenoted in the previous post. The parties’ arguments are also reproduced below in part. Continue reading “Home Office v Harman: some law about its application to VCAT”

The obligation not to use documents obtained under compulsion except for the purpose compelled

Update, 21 August 2007: Latest case on the implied undertaking:  Street v Hearne [2007] NSWCA 113.

When a person comes into possession of documents through legal compulsion, they are under an implied obligation not to use them for any purpose but the purpose for which the compulsion operates. Most lawyers know the rule insofar as it applies to discovered documents. But it applies to all manner of compulsion and to information as well as documents, including subpoenaed documents, and documents obtained by the Legal Services Commissioner under s. 4.4.11 (in relation to disciplinary complaints) (or, now, in relation to civil disputes, s. 4.3.5(3)) of the Legal Profession Act, 2004. It is best known as the rule in Home Office v Harman after the House of Lords decision in that case reported at [1983] 1 AC 280.

The latest decision in the saga of Australia’s best-known female criminal lawyer, ZGW v Legal Services Board [2007] VCAT 1406 (see for background my earlier posts here and here and here) is a ruling on an application by the Legal Services Board to be released from the obligation. It is another of Acting President Bowman’s long, honest, and thorough judgments. His Honour is a hard-working judge, and I like the way he sets out with fidelity the parties’ arguments, and then deals with them one by one. It is a diligent, and intellectually honest approach, and goes beyond what could be, and often is, gotten away with in some administrative tribunals. More generally, VCAT is to be commended for having the courage to publish each and every new written decision on the internet.

The case was argued by some heavy-hitters: Joe Santamaria QC for the Board and Gerry Nash QC for the solicitor. Mr Nash prevailed. The tussle was over a police file on the solicitor, and: Continue reading “The obligation not to use documents obtained under compulsion except for the purpose compelled”

The 60 day time limit for instituting VCAT proceedings under the Legal Profession Act

In Ralph Cosentino v MY [2007] VCAT 1319, Member Butcher continued a tradition of statutory interpretation of a little technical provision about when service of statutory notices is effective. That tradition, of the Legal Profession Tribunal and its predecessors, has always troubled me. Though it does not seem to have been cited by counsel,  a recent decision of a Deputy President of VCAT took the opposite approach: Vitesnik v Macedon Ranges SC [2007] VCAT 598. There is a Legal Profession Act, 2004 notice issued by the Legal Services Commissioner within 60 days of receiving which an applicant must start their VCAT case.  Mr Butcher concluded that he would have found that Mr Cosentino did not ‘receive’ it on the day when the Act directed that it was to be ‘taken to have been given to him’. But the question never quite arose, as Mr Butcher used a VCAT Act, 1998 power to excuse the applicant’s use of the wrong originating process and concluded that the proper characterisation of things was that the application, though defective, had been made within time anyway, so that it was appropriate to excuse the procedural defect and recognise the case as having been started within time. Warning: this is a particularly boring decision unless you are a user of VCAT’s Legal Practice List. Continue reading “The 60 day time limit for instituting VCAT proceedings under the Legal Profession Act”

Pizer’s Annotated VCAT Act comes into third edition


My friend Jason Pizer had the launch of the third edition of his book this week, and I went along and enjoyed the company of VCAT’s Acting President John Bowman, Deputy President Marilyn Harbison, and Justice Chris Maxwell, President of the Court of Appeal.  It’s the VCAT equivalent of Williams, the looseleaf ‘Bible’ of civil procedure in the state courts.  Compared with Williams, it is a joy to use. It has the same in-court handling as the ‘Cook Book’. It has serious traction with the members over there. It’s full of intellectual grunt. And it’s about one-tenth of the price of Williams at $130. Continue reading “Pizer’s Annotated VCAT Act comes into third edition”

What does “VCAT’s not a court of pleadings” actually mean?

In Dalton v Silberberg [2007] VCAT 1069, Deputy President Steel laid down the law in relation to the minimum standards for pleadings by unrepresented applicants in VCAT cases other than simple one-hour hearing cases, and struck out the applicant’s points of claim. The decision is also worth reading to ascertain VCAT’s Civil List’s attitude to how much vexation is necessary before dismissal becomes the appropriate course as opposed to the striking out of the statement of the applicant’s claim. The Deputy President adopted what the Supreme Court said in another case about pleadings in Tribunals:

‘a defendant is entitled to expect that a claim will be laid out with a degree of specificity such that, if it is obvious that the claimant seeks to pursue a claim which is untenable, that can be the subject of an application before trial’. Continue reading “What does “VCAT’s not a court of pleadings” actually mean?”

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”

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”

No appearing on behalf of others in VCAT when your practising certificate’s suspended

The Victorian Civil and Administrative Tribunal (Amendment No. 17) Rules 2006 will introduce a new class of people prohibited from representing others in VCAT: lawyers whose practising certificates are suspended or who have been struck off the role of practitioners. No doubt some bright spark had her practising certificate suspended and decided to continue practising by appearing for others in VCAT on the pretext that you don’t have to be a lawyer to do so (in fact, if you are a lawyer, your client has to seek permission to have you represent them: see s. 62 of the VCAT Act, 1998). The new rule 4.24 will say:

“Classes of persons disqualified from being professional advocate

(1) For the purposes of section 62(8) of the Act, a person is disqualified from being a professional advocate if—

(a) the person, being or having been a legal practitioner, has been the subject of disciplinary proceedings under the law of Victoria, another State, a Territory or the Commonwealth and has been found guilty in those proceedings of professional misconduct (by whatever name called) or of another breach of professional standards, whereby the person is not currently permitted to practise”.

Unrepresented woman ordered to pay costs of statute barred case

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

Mrs Wells’s case, also the subject of the previous post, was struck out under s. 75 of the VCAT Act, 1998 for having been brought out of time. Mr Howell found that the case was “lacking in substance” because it was statute barred and ordered her to pay the Legal Practitioner’s costs despite accepting that she genuinely believed that she could bring the claim more than 6 years afer the allegedly negligent omissions, which some might say was not a particularly severe misconception if she was suing in negligence, where the first occurrence of some damage marks the accrual of the cause of action, rather than the date of the allegedly negligent act or omission. Sections 75(1) & (2) of the VCAT Act, 1998 provide: Continue reading “Unrepresented woman ordered to pay costs of statute barred case”

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”

No obligation to obey VCAT order invalid for exceeding jurisdiction

In The Herald & Weekly Times Pty Ltd v Victoria [2006] VSCA 146, the subject of the two previous posts, the Court of Appeal declared that there is no obligation to obey an unlawful order of VCAT before setting it aside. (That is one of the differences between a superior court and a Tribunal, since an order of a Superior Court must be obeyed unless set aside, even if made without jurisdiction.) The newspaper had gone ahead and published the terms of settlement in apparent contravention of the injunction of VCAT’s President Justice Morris that it not do so. Unsurprisingly, it led to a contempt proceeding. The Court of Appeal found there was no contempt because the injunction was a nullity. Continue reading “No obligation to obey VCAT order invalid for exceeding jurisdiction”