Victorian Civil & Administrative Tribunal Act 1998 s.109; finding that no jurisdiction to hear application; application by respondent for costs of responding to application; no power under s.109(2) to award costs in the absence of jurisdiction.

Duncan v Simon Parsons & Co (Legal Practice) [2009] VCAT 830

1. The principal registrar is to amend the records of the Tribunal to show the name of the respondent as Simon Parsons & Co, instead of Simon Parson.
2. The Tribunal finds that it does not have jurisdiction to hear and determine the application.
3. The Tribunal finds that it does not have power to hear and determine an application that the applicant pay the respondent's costs.

1. This application purports to be an application by Mrs. Duncan made pursuant to s.4.3.15 of the Legal Profession Act 2004. Mrs. Duncan contended that the subject matter of the application is a "civil dispute" as defined by s.4.2.2(2)(b) of the Act, namely "a claim that a person has suffered pecuniary losses as a result of an act or omission by a law practice ... in the provision of legal services to the person".
2. It was contended on behalf of the respondent Simon Parsons & Co, a firm of solicitors, that the Tribunal does not have jurisdiction to hear and determine the application under s.4.3.15 because Simon Parsons & Co did not provide legal services to Mrs. Duncan.
3. There may have been pecuniary loss, but there is an issue as to whether pecuniary loss was suffered by Mrs. Duncan, or by her late husband, or by a company controlled by her late husband. I will not determine that issue, as there are other reasons why the Tribunal does not have jurisdiction.
4. The late Mr. Duncan conducted a business. A Mr. Stewart claimed to have an interest in the business, a claim rejected by Mr. Duncan. In January 2002, Mr. Stewart took cash and cheques totalling $12,905.00 from the business. The cash and the cheques were paid into the trust account of Simon Parsons & Co.
5. Mr. Stewart commenced proceedings in the County Court against Mr. Duncan, effectively claiming an interest in the business. Simon Parsons & Co acted for Mr. Stewart during the County Court proceedings, although Mr. Stewart engaged another solicitor prior to the conclusion of the proceedings. In answer to an interrogatory in the County Court proceedings, Mr. Stewart admitted that he removed $12,905.00 from the business and paid it to Simon Parsons & Co. Mrs. Duncan informed me that the County Court proceedings were dismissed. She was unable to tell me whether any order was made by the County Court concerning the $12,905.00 removed by Mr. Stewart.
6. In an attempt to recover the $12,905.00, Mrs. Duncan lodged a complaint about Simon Parsons & Co with the Legal Services Commissioner. Mrs. Duncan stated this morning that she was informed verbally by a member of the staff of the Commissioner that she should make an application to VCAT. Mrs. Duncan then lodged the present application.
7. It is common ground that Simon Parsons & Co provided legal services to Mr. Stewart, not to Mrs. Duncan or her late husband or a company conducting the business. Consequently, the dispute between Mrs. Duncan and Simon Parsons & Co is not a civil dispute as defined by s.4.2.2(2)(b) of the Legal Profession Act, and cannot be the subject matter of an application brought pursuant to s.4.3.15 of the Act. The result is that VCAT does not have power to hear and determine her application pursuant to the Legal Profession Act.
8. Furthermore, every application lodged pursuant to s.4.3.15 must be accompanied by a written notice from the Commissioner, effectively authorising the client and the legal practitioner involved in a civil dispute to make an application to the Tribunal to have the dispute determined: see s.4.3.15(3). Mrs. Duncan has not received such a notice, and therefore did not lodge a notice with her application. That is another reason why VCAT does not have power to hear her application under the Legal Profession Act.
9. I considered whether the Tribunal could treat the application lodged by Mrs. Duncan as an application to VCAT to hear and determine a consumer and trader dispute pursuant to s.108 of the Fair Trading Act 1999. However, a consumer and trader dispute is defined by s.107 of that Act as "a dispute or claim between a purchaser ... of goods or services and a supplier ... of goods and services in relation to the supply ... of goods or services". Simon Parsons & Co supplied services to Mr. Stewart, not Mrs. Duncan, so VCAT could not treat her application as an application made pursuant to s.108 of the Fair Trading Act.
10. I find that VCAT does not have jurisdiction to hear and determine the application lodged by Mrs. Duncan.

1. Simon Parsons & Co sought an order that Mrs. Duncan pay its costs of responding to the application. The submission made by Simon Parsons & Co as to costs involved three steps.
2. The first step in its submission was that its objection to jurisdiction was in substance, although not in form, an application made pursuant to s.75 of the Victorian Civil & Administrative Tribunal Act 1998. That section provides for the summary dismissal of unjustified proceedings.
3. The second step in its submission was that the finding that the Tribunal does not have jurisdiction was made pursuant to s.75(1).
4. The third step was that, having made a finding pursuant s.75(1), the Tribunal has power to award costs under s.75(2). That sub-section provides that the Tribunal "may order the applicant to pay to another party an amount to compensate that party for any costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding".
5. The submission is without foundation, because my finding as to jurisdiction was not made pursuant to s.75(1).
6. When making a finding as to jurisdiction, a court or tribunal does not need the support of a statutory provision authorising it to make such a finding. All courts and tribunals have power to determine whether they have jurisdiction: Re Boulton; ex parte Construction, Forestry, Mining & Engineering Union (1998) 73 ALJR 129 @ [21]. As Kirby J said in that paragraph, "Every court or tribunal in this country must, where objection is taken to its jurisdiction, determine that objection as a preliminary question".
7. I cannot make an order for costs under s.75(2), because I did not summarily dismiss the application under s.75(1).
8. Furthermore, the VCAT Act does not have a section akin to s.55 of the County Court Act 1958, which provides that "Whenever an action or matter is commenced over which the court has no jurisdiction, the judge ... shall have power to award costs in the same manner, to the same extent, and recoverable in the same manner as if the court had jurisdiction ...".
9. Section 109(2) of the VCAT Act states that "the Tribunal may order that a party pay all or a specified part of the costs of another party in a proceeding". The power granted by the sub-section is widely drawn, but not wide enough to enable the Tribunal to proceed to hear an application for costs in a matter where it has no jurisdiction. After all, if the legislature intended the Tribunal to hear an application for costs, despite the absence of jurisdiction, it could have included in s.109 a provision similar to s.55 of the County Court Act.
10. I acknowledge that in Nazligul v AMP Investments Pty Ltd [1999] VCAT 1597 the Tribunal, having found itself without jurisdiction, proceeded to award costs on the basis that "having jurisdiction sufficient to consider the jurisdictional issues it must follow that I have power to award costs with respect to the matter". I take a different view.
11. My view is that, having found that an application is not within its jurisdiction, the Tribunal is without jurisdiction (in the absence of a provision akin to s.55 of the County Court Act) to hear and determine an application that the applicant pay the respondent's costs.
12. I conclude that no order can be made as to costs.