Summary The Legal Profession Act 2004 was repealed on 1 July 2015.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.

Murder and madness Violence and the courts’ response was prominent as an issue, because it was an election year in Victoria, and so was racism because of the Minister for Making Refugees Disappear and other senior government people.  I liked John Silverster’s end of year article which celebrated the fact that crimes were down 7% and 3,000 extra police were in training.  A miserable law and order scare campaign ill-executed by state and federal Liberals ultimately bombed spectacularly when Dan Andrews stared it down.  For example, the shadow Attorney-General John Pesutto lost the seat of Hawthorn to a retired school principal who does not drive, John Kennedy (not the Hawks legend of the same name, or the Hawks legend’s Hawks playing son of the same name) and the Liberals held Brighton (Brighton!) by only 865 votes against a late-announced 19 year old Labor candidate who also doesn’t drive and who spent $1,750 on his campaign.  The newly elected Liberal member then surprised many by railing in his maiden speech against duck shooting and expounding environmental concerns more generally.

Europe  The peasants revolted in France, which seemed to take everyone by surprise.  Seems President Macron’s honeymoon period, following his remarkable 2017 election, may be over.  England thought about changing prime ministers but thought better of it, while it agonized over what sort of Brexit it should have, or whether they should vote on the whole thing again.  New Caledonia finally had a referendum about whether to break away from France.  Slightly more than half of those of the eligible voters who voted said ‘Non’, but they get to do it all over again in 2020, and maybe in 2022 too.

Africa  Peaceful protests in 15 of Sudan’s 18 provinces against the kleptocracy of Omar al Bashir persisted in Sudan for 10 days, definitely about high prices and probably about three decades of corruption.  He responded with police and army killings, beatings, tear gas, mass arrests and death squads, calling the protesters from all sectors of society including doctors ‘foreign stooges and infidels’, and throwing the opposition leader into jail for good measure.  The President is a soldier who took power in a military coup, is indicted for genocide in Darfur by the International Criminal Court (the only serving head of state to have been charged with crimes against humanity), and is said to have US$9 billion in London banks.  It sounds like the plot of a Sacha Baron Cohen movie.  Unfortunately not.

Sport The third World Nomad Games in the Kyrgyz Republic were a great success. 

It was not a year of celebrity or otherwise notable deaths. The Grim Reaper must have saved them for a year sparse of spectacular executions by Trump buddies, which this year was not.

Aretha Franklin, the Queen of soul and a civil rights activist, and Stephen Hawking, both of whom lived amongst the stars, probably topped the international list of regular passings. Hawking was a great supporter of British Labor, of universal health care, nuclear disarmament, Al Gore’s presidential campaign, and anti-Brexit. He actively championed action against climate change.

Oh what a year for professional misconduct:

Michael Cohen President Pussygrabber’s lawyer and fixer, Michael Cohen, exposed incidentally by the Mueller investigation as an outright crook, was sentenced to three years in America’s particularly unpleasant slammers for (amongst other things) inexplicably paying off women who allegedly falsely claimed to have had extra-marital relations with the President, a violation of campaign finance laws. One of the women, ‘Stormy Daniels’, sued the President for defamation over one of his tweets ‘A sketch years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know it)!’ She said it insinuated that she had lied about the man whom she sketched having threatened her against going public with her allegations. The President had the suit struck out under a law designed to protect against strategic lawsuits against public participation (SLAPP), the judge ruling that the tweet was ‘rhetorical hyperbole’ protected by the first amendment. Ms Daniels is to pay the President’s legal fees (the claim was for 580 hours at up to US$840 per hour) fixed at nearly US$300,000.

Brett Kavanough The misconduct against Judge Brett Kavanough must not have been established to the satisfaction of the senate committee which confirmed President Pussygrabber’s nomination of the arch-conservative whose appointment imperils Roe v Wade. The hearing was excruciating in its hopelessness (highlights here); senators have no idea how to cross-examine.

If you want to read a real journalist’s wrap of The Year, see The Age here, another from The Age here, 7:30’s, the Saturday Paper’s here, or for a cheerier wrap, see The Guardian’s Brigid Delaney here.  And this New York Times wrap of the year in photojournalism is great. I must acknowledge the heavy debt of what follows to Wikipedia, without which extraordinary resource much of which follows could not have been written by me.

Me, myself I had a lovely year, though I must be getting old: a child from my reader’s course became a QC (congratulations Dr Button QC); a kid below me at school is the Dean of Law at the University of Singapore (Professor Simon Chesterman); a youth I used to have morning tea with in Law School, Professor Carolyn Evans, is already an ex-Dean of the Melbourne Law School; her boyish husband who was admittedly quite good at mooting is the Solicitor General of Australia (Stephen Donahue QC); my body got grumpy.