1. Respondent's application pursuant to S.77 of the Victorian Civil and Administrative Tribunal Act 1998 dismissed.
2. Question of ancillary orders reserved.
3. Liberty to apply.

For the Applicant: Mr Richard Antill of Counsel, instructed by Kliger Partners.

For the Respondent: Mr Andrew Phillips of Counsel, instructed by Oakley Thompson & Co.

1. In this matter, the Respondent, Oakley Thompson & Co ("OTC"), being a firm of solicitors, is submitting that, pursuant to s.77 of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act") the claim against it by Cedric Rupert Naylor ("Naylor") should be struck out on the basis that the proceeding would be more appropriately dealt with by some other body. This application is resisted by Naylor.
2. Any findings of fact are made solely for the purposes of this jurisdictional argument. Considerable documentary material was filed, but the facts have not been tested in cross-examination. Many are not contentious. These are not intended to be findings in relation to the merits of any dispute between Naylor and OTC. However, bearing in mind that caveat, I will give a brief outline of the general factual background so that the submissions and ruling can be seen in context and can be better understood.
3. Naylor engaged OTC as his solicitors. That firm was initially engaged in relation to Supreme Court proceedings in which Naylor was the defendant and which were issued in 2001. In July, 2001, Naylor entered into a costs agreement with OTC. That firm was also engaged by Naylor in relation to Supreme Court proceedings in which he was the Plaintiff, and which were issued in 2002. The details of these proceedings need not concern us. Suffice to say that they were complex and that a deceased estate seems to have been at the core of the dispute.
4. It should also be said for the sake of completeness that both proceedings issued out of the Supreme Court were settled at trial on 21st July 2005. It has been alleged on behalf of OTC, and would certainly seem to be the case, that both the proceedings and the settlement were complex, with Deeds of Variation made to the original Deed of Settlement, and with, at least until recently, ongoing disputes between the parties to the Deed of Settlement as to the final accounts of the estate.
5. Pursuant to s.103(1) of the Legal Practice Act ("the LPA"), Naylor has issued an application out of this Tribunal seeking, in essence, that the costs agreement be cancelled, and in so doing relies upon various sections of the Fair Trading Act 1999 in addition to the provisions of the LPA. He alleges that he was induced to enter into the costs agreement by reason of misrepresentation on the part of OTC as to the quantum of such costs and alleges that there has been misconduct on the part of OTC. This application was issued out of VCAT on 3rd November 2006.
6. In the meantime, on 6th October 2006 OTC issued out of the Commercial List of the County Court of Victoria a writ seeking from Naylor a sum in excess of $122,000.00 in respect of legal services provided and disbursements incurred, together with interest. On 10th November 2006 His Honour Judge Anderson ordered, inter alia, that a stay application by Naylor be adjourned to a date to be fixed upon OTC undertaking that it would make application to this Tribunal pursuant to s.77 of the VCAT Act that Naylor's application be struck out and referred to the County Court.
7. Mr Andrew Phillips of Counsel appeared on behalf of OTC. Mr Richard Antill of Counsel appeared on behalf of Naylor. No oral evidence was adduced, and the matter proceeded by way of submissions with references to some documents. As it was OTC's submission and it was endeavouring to satisfy me that the proceeding should be so struck out, the submissions of Mr Phillips were received before those of Mr Antill. After setting out the key provisions of s.103 of the LPA, I shall give a brief summary of the submissions before moving on to a ruling.
8. The provisions of s.103 of the LPA which received considerable attention are as follows:-

"(1) On application by a client, the Tribunal ... may order that a costs agreement be cancelled if satisfied -

(a) that the client was induced to enter into the agreement by the fraud or misrepresentation of the legal practitioner or firm; or

(b) that the legal practitioner or firm has been guilty of misconduct or unsatisfactory conduct in relation to the provision of legal services to which the agreement relates; or

(2) The Tribunal may adjourn the hearing of an application under this section pending the completion of any investigation or charge in relation to the conduct of the legal practitioner or firm."

1. The submissions of Mr Phillips on behalf of OTC could be summarised as follows.
2. OTC provided legal services to Naylor in a complex matter which resulted in a complicated settlement.
3. Consideration must be given to the transitional provisions contained in Schedule 2 of the Legal Profession Act 2004 ("the 2004 Act"). Clause 1.2(2) provides that, if a provision of the LPA continues to apply by force of the Schedule, any other provisions of the LPA necessary to give effect to that continued provision also continue to apply. Clause 3.1 of the same Schedule effectively provides that Part 4 of the LPA continues to apply to a matter if the client (here Naylor) first instructed the law practice (OTC) in the matter before the commencement day. The commencement day is 12th December 2005. Thus, Part 4 of the LPA applies only if the work in question was commenced by way of retainer when the LPA was in force and before that day.
4. In the present case, the retainer was terminated in August, 2006.
5. Pursuant to the provisions of Clauses 8.1 and following, of Schedule 2 of the 2004 Act, as at the commencement day the Legal Profession Tribunal was abolished and VCAT was substituted for it. Clause 6.1 provides that, after the commencement day, a dispute is to continue to be dealt with in accordance with the LPA as if, inter alia, a reference to the Legal Profession Tribunal were a reference to VCAT. In summary, this Tribunal must deal with the matter under Part 5 of the LPA as if the matter were proceeding before the Legal Profession Tribunal and pursuant to the provisions of the LPA. Thus, the jurisdiction to set aside a costs agreement is necessarily dependent upon the consideration of a complaint under Part 5. Were it otherwise, the legal practitioner would be left without the benefits of the established procedures.
6. Pursuant to Clause 6.1, unless a complaint was made before the commencement date, matters of dispute and discipline are to be dealt with under the 2004 Act. In the present case, the application is based essentially upon allegations of misconduct or unsatisfactory conduct. These are, in summary, allegations either of failing to comply with the LPA and the appropriate regulations, or of negligence. "Misconduct" and "unsatisfactory conduct" are terms which are defined in the LPA. They are defined in Division 2 of Part 5.
7. It has been presumed that s.103(2) gives to the Tribunal a discretion - see Alessi v Moses (Legal Practice) [2006] VCAT 1714. (Whilst in oral submissions Mr Phillips gave this as the appropriate reference for Alessi v Moses, there are a number of decisions involving those parties. This particular one does not seem to relate to the submission being advanced by him. Alessi v Moses [2005] VLPT 18 seems to be the decision in question). Because it has been assumed for some time that s.103(2) is discretionary does not make it so. Part 5 of the LPA establishes elaborate procedures for dealing with complaints against practitioners where there are allegations of misconduct or unsatisfactory conduct.
8. The jurisdiction of the Tribunal to cancel a costs agreement on the basis of misconduct or unsatisfactory conduct is necessarily dependent upon the consideration of a complaint in accordance with the procedures set out in Part 5. If that were not the case, the practitioner concerned would be left without the benefit of the procedures established in Part 5. This argument is supported by the fact that the definitions of the relevant terms involved are found in s.137 of the LPA, it being in Part 5, and commencing with the words "In this Part", as opposed to "In this Act". Under the LPA, a practitioner the subject of a complaint of misconduct or unsatisfactory conduct has the right to have the matter heard by a Full Tribunal. If there is a discrete jurisdiction dealing with misconduct and unsatisfactory conduct pursuant to s.103(1)(b), this necessarily means that the practitioner involved would be denied the procedural protection set out in Part 5, including the investigative phase relating to whether the matter has substance. Various sections of the LPA between ss.141 and 151 deal with investigations and such things as the dismissal of unjustified complaints.
9. Further, if s.103 has an operation which is discrete, the same could be argued for ss.159, 160 and 166. The result would be that a finding under s.103(1)(b) of misconduct or unsatisfactory conduct could result in the imposition of penalties pursuant to ss.159, 160 and 166. This would occur without the benefit of the procedural protections set out in Part 5 of the LPA.
10. In summary, before the Tribunal can consider whether to cancel a costs agreement pursuant to s.103 because of misconduct or unsatisfactory conduct, the procedures set out in Part 5 must be followed and a finding of misconduct or unsatisfactory conduct made. Section 103(1)(b) in fact means that the legal practitioner must have been found guilty of misconduct or unsatisfactory conduct in relation to the provision of the legal services to which the costs agreement relates. The word "found" should be read into s.103(1)(b). The inquiry of the Tribunal pursuant to s.103 should be as to whether the previous relevant finding of misconduct or unsatisfactory conduct is sufficient to warrant the setting aside of the costs agreement. In the 2004 Act, at s.3.4.32, the wording employed is "found guilty", which indicates an awareness on the part of the legislature concerning the tension which existed between the sections in the LPA, and the legislature has chosen to expressly deal with this.
11. To interpret s.103(1)(b) of the LPA in the way that has been submitted does it no unnecessary violence. The fact that, in Alessi, an application for an adjournment pursuant to s.103(2) in order that Part 5 processes be complied with failed, does not mean that such approach was correct. It was erroneous, and this Tribunal is not bound by it and should not follow it. In relation to the use of the word "may" in s.103(2), such word can, depending upon the statutory circumstances, mean "must". In s.103(2), "may" should be read as being both permissive and directory.
12. In relation to the treatment of disciplinary complaints in the 2004 Act, Chapter 4 is a code. As, in the present case, no disciplinary complaint was made prior to the commencement date, any complaint of this nature, if and when it is made, must be dealt with according to the provisions of the 2004 Act. The terminology in Chapter 4 is different in that it refers to "unsatisfactory professional conduct" and "professional misconduct". The investigative process is structurally different from that in the LPA, although it retains many of the features of Part 5 of the LPA.
13. This raises the question of what happens in relation to a provision such as s.103(1)(b) of the LPA which refers to a concept which no longer exists, namely misconduct or unsatisfactory conduct, and where the mechanism for dealing with matters expressed in those terms no longer exists. It is quite possible that there now exists a lacuna in the transitional provisions to the effect that there is no body able to consider whether or not a practitioner has been guilty of misconduct or unsatisfactory conduct. The effect of this is to strip s.103(1)(b) of the LPA of its jurisdictional basis.
14. The general transitional provision contained in Clause 1.2(2) of Schedule 2 of the 2004 Act does not assist in saving Part 5 of the LPA. This is because Schedule 2 contains specific provisions as to how disciplinary complaints are now to be dealt with. Part 6 of Schedule 2 makes it clear that, if a complaint was not made prior to the commencement date, when made it must now be dealt with pursuant to Chapter 4 of the 2004 Act. This is a specific provision dealing with the question of professional misconduct. Clause 1.2(2) is a general provision which must give way to the specific. Given the nature of the legislation and the difficulties associated with the transitional provisions, it is not surprising that such a lacuna might develop.
15. Similarly, Clause 8.5 of Schedule 2 does not assist. That clause cannot be used to solve or bypass a jurisdictional difficulty.
16. Even if Part 5 is saved, a problem still exists. There is no complaint in place and the question of whether or not there has been misconduct or unsatisfactory conduct still must be determined pursuant to the processes set out in Part 5 of the LPA. Until that happens, jurisdiction pursuant to s.103 does not exist.
17. If the above submissions are correct, the next question relates to the disposition of the matter pursuant to s.77 of the VCAT Act. If there is a lacuna as submitted, or if there is no finding as to misconduct or unsatisfactory conduct, the only grounds then remaining pursuant to s.103 are those in ss.103(1)(a) and (c). The former of these relates to fraud or misrepresentation. Any allegation of fraud should be withdrawn. In relation to misrepresentation (or fraud), the remedies available pursuant to s.103(1)(a) are equally available pursuant to the provisions of the Trade Practices Act 1974. OTC is a corporation. A similar situation prevails in relation to s.103(1)(c) which deals with costs agreements that are not fair or reasonable. Accordingly, Naylor has available to him the powers to cancel agreements invested in state and federal courts pursuant to the Trade Practices Act. Thus, there would be no loss of amenity to Naylor in terms of available remedies if this matter were transferred to the County Court.
18. It is apparent that the issues which Naylor wishes to ventilate before this Tribunal are very substantial and complex. It is very much the sort of case that should go to the County Court. It is outside the nature of the cases with which this Tribunal deals. It will involve consideration of all the issues involved in the principal matter which was settled. Effectively they will have to be litigated. There will be numerous issues involving complicated areas of law. In addition, one of the complexities of the matter is that it would involve the interpretation of High Court authority.
19. If the matter is not transferred elsewhere, the issue remains concerning there being no finding in relation to misconduct or unprofessional conduct.
20. There is also on foot the proceeding in the County Court in which OTC is seeking to recover from Naylor part of its costs pursuant to the costs agreement which Naylor is trying to set aside in this proceeding. If OTC had sought to issue its claim against Naylor out of VCAT, a jurisdictional problem might arise. There would then have to be reliance upon the Fair Trading Act 1999.
21. Alternatively, if jurisdiction exists, and if the Tribunal finds that the proceeding should not be referred elsewhere pursuant to s.77 of the VCAT Act, it should be adjourned pending a finding of guilt or innocence in relation to any complaint of misconduct or unsatisfactory conduct. If no such complaint was then pursued, OTC should have the right to come back and apply to strike out that part of the application which deals with s.103(1)(b) of the LPA.

1. The submissions of Mr Antill on behalf of Naylor could be summarised as follows.
2. Section 103 of the LPA applies to the situation pursuant to the transitional provisions. Essentially OTC, in support of its submission that antecedent findings of misconduct or unsatisfactory conduct are required, is asserting that a number of decisions of the Legal Profession Tribunal and of this Tribunal are wrongly decided, or that decisions were made where no jurisdiction to make such decisions existed. In answer to that it is submitted that s.103 of the LPA is clearly intended to give to the client certain rights. It is for the benefit of the client, and gives to the client the right to apply to cancel a costs agreement. The only sanction available pursuant to the section is the cancelling of that agreement. The cancellation of a costs agreement is the most severe sanction which a practitioner can face pursuant to s.103. The Tribunal, having cancelled a costs agreement on the basis of misconduct or unsatisfactory conduct within the meaning of s.103(1)(b), cannot then impose a penalty pursuant to ss.159 and 160 of the LPA.
3. In Alessi, allegations of misconduct and unsatisfactory conduct were made, and substantiated to the satisfaction of the Tribunal, but no penalty pursuant to ss.159 or 160 of the LPA was imposed. It is incorrect to say that the interpretation of s.103 in the way that has been adopted deprives the practitioner of the benefit of the procedures set out in Part 5 of the LPA before a penalty is imposed.
4. Further, once a complaint is made pursuant to Part 5 of the LPA, it is then out of the hands of the client. The relevant regulatory body investigates the complaint and makes the appropriate determinations. It is beyond the power of the client to then pursue the complaint "to the nth degree". However, in relation to s.103, because the client is trying to cancel a costs agreement, it is important that he or she can pursue the allegations without intervention on the part of the investigative body. To say that there is no violence to interpret s.103 in the manner contended for by OTC is incorrect. That interpretation reduces the number of avenues available to the client seeking to cancel a costs agreement.
5. Another effect of the interpretation urged on behalf of OTC is that it would force the client to make a complaint concerning conduct. In the present case, Naylor has elected not to press a complaint pursuant to Part 5 of the LPA. If the interpretation urged by OTC is correct, Naylor would be forced to make the complaint in order to ventilate the allegations which he seeks to make pursuant to s.103.
6. Under the 2004 Act, there is different wording. However, when the alteration to the wording was made in the 2004 Act, no alteration was made to the LPA. It is clear that the provisions of the LPA would continue to apply, and the legislature made no attempt to alter the wording of the LPA in this regard. The end result is that there should be no requirement for an antecedent finding in relation to misconduct or unprofessional conduct. Various previous decisions of the Legal Profession Tribunal and of VCAT support this position.
7. If that submission is unsuccessful, the appropriate course is not to strike out the matter, but to adjourn it in order to allow a complaint to be made and to be dealt with according to the appropriate investigative procedures. Given the transitional provisions, such complaint may have to be dealt with pursuant to Chapter 4 of the 2004 Act. However, whether the complaint is made pursuant to the LPA or the 2004 Act is irrelevant for the purposes of this application.
8. In relation to the merits of any application pursuant to s.77 of the VCAT Act, should jurisdiction exist, there are a number of reasons why the Tribunal should not accede to such application. The Tribunal does have jurisdiction to cancel a costs agreement pursuant to s.103 of the LPA. The County Court does not. It is not clear that the jurisdiction of the County Court pursuant to the Trade Practices Act and relating to unconscionable conduct would be of sufficient breadth to embrace an application such as this. All of the jurisdiction to cancel a costs agreement is not picked up in this way. However, this Tribunal could hear the claim which OTC has issued in the County Court, such claim being pursuant to the Fair Trading Act. Indeed, s.103(3) of the LPA gives to the Tribunal the power to make such costs order as it thinks fit if it cancels a costs agreement.
9. If the matter were referred to the County Court, that would deny Naylor the opportunity of exercising his right pursuant to s.103 of the LPA.
10. This Tribunal has the expertise and resources to deal with the application, and is a specialist forum in dealing with disputes between legal practitioners and clients. Previous members of the Legal Profession Tribunal are now members of the Legal Practice List at VCAT. Furthermore, the more complex a matter such as this, the more important that it be heard by a specialist tribunal and by a member experienced in dealing with disputes between practitioners and clients. In relation to both the LPA and the 2004 Act, it is the clear intention of the legislature that the Tribunal be the only forum to deal with applications to cancel costs agreements.
11. Whilst the County Court proceeding was issued before the application pursuant to s.103 was issued out of this Tribunal, that application and the application to stay the County Court proceeding were both made at a very early stage and before any further steps were taken in the County Court proceeding. A County Court writ was issued on 6th October 2006, the VCAT application on 3rd November 2006, and the application to stay the County Court proceeding was heard on 10th November 2006. There would be very little work or costs thrown away as a result of a permanent stay of the County Court proceeding.
12. The application to stay the County Court proceeding was adjourned to enable OTC to make this application pursuant to s.77. If it is dismissed, the application for a stay will inevitably succeed, and accordingly there is no danger of inconsistent findings.
13. The proceeding in the County Court was commenced prior to those amendments to the County Court Act 1958 which established that its jurisdiction was unlimited. If Naylor is successful and the costs agreement is cancelled, the total amount of costs in dispute will significantly exceed $200,000.00, and that would exceed the old jurisdictional limit of the County Court. Accordingly, there is a prospect that, if the matter was referred to the County Court, it may be necessary to make an application to uplift it to the Supreme Court. In contrast, the monetary jurisdiction of this Tribunal is unlimited, and no difficulties would be created in that regard.
14. In response to an argument advanced on behalf of OTC, the application of Naylor in fact makes no reference to fraud. There is a reference to misrepresentation and a reliance upon s.103(1)(a) in relation to that. However, there is no allegation of fraud.

1. The reply of Mr Phillips on behalf of OTC could be summarised as follows.
2. A proper interpretation of s.103 of the LPA governs Naylor's rights. His rights are enlivened only if there is an antecedent finding of misconduct or unsatisfactory conduct in the proper way under Part 5. In relation to the inter-relationship of s.103 and ss.159 and 160, a finding of misconduct pursuant to s.103 would create an issue estoppel. If there was then a complaint, OTC would be bound by that finding. If that were not so, there would be a risk of inconsistent findings. OTC would be stuck with a finding of misconduct without having had the benefit of the procedural protections. The alternative is the risk of an inconsistent finding. Such a subsequent complaint need not even be brought by Naylor, but, in accordance with the Act, could be brought by any other person.
3. The argument that s.103 puts the power to pursue a complaint of misconduct in the hands of the client begs the question as to what is the meaning of s.103. Furthermore, the relevant provisions of the Trade Practices Act are very wide and would give to the County Court jurisdiction to deal with a matter such as this which relates to a costs agreement. The present complaint is not a straight lawyer/client dispute because investigation of it involves ventilation of the substantial proceeding. There is also a risk that, in this proceeding, OTC could be exposed to the ventilation of issues effectively selected by Naylor, and still be subject to another proceeding in another Court in relation to some remaining issues. That is another reason why, because of the limited jurisdiction of this Tribunal, the matter should be transferred.

1. Whilst this application is brought by OTC pursuant to s.77 of the VCAT Act, a question which normally involves argument concerning which is the natural forum based upon connecting factors, to use the words of Gillard J in Ewins v BHP Billiton Limited [2005] VSC 4, the arguments advanced in the present case extend to issues of basic jurisdiction. I am not suggesting that there was any unfair element of surprise in this development. I have previously ruled that, if no jurisdiction exists, a matter should be dismissed for such want of jurisdiction and no power then exists to refer it elsewhere pursuant to s.77 of the VCAT Act - see Wurzel v Ryan & Raniga [2003] VCAT 469. I remain of the opinion that this approach is correct. However, given the arguments advanced by each side in the present case, I am prepared to treat this application as being essentially one firstly seeking a dismissal of a substantial part of the proceeding pursuant to s.75 of the Act (save for possible allegations pursuant to s.103(1)(a) and (c)). What then remains is, presumably, an application for a striking out and referral of the remainder of the application. If jurisdiction in relation to s.103(1)(b) is established, the striking out and referral of the entire proceeding is sought.
2. Turning firstly to the issue of jurisdiction, a principal argument advanced by Mr Phillips on behalf of OTC is that the operation of s.103(1)(b) of the LPA is predicated upon a finding of misconduct or unsatisfactory conduct on the part of the practitioner. In other words, his submission is that, until such time as a complaint has been lodged and the investigative processes and the like set out in Part 5 of the LPA have been conducted, and a finding of guilt established, an application based on s.103(1)(b) cannot be entertained. There is a want of jurisdiction. As I understand his argument, if that be correct, and if, as in the present case, no such complaint has been made or investigative procedures followed, problems then exist as to the lodging of and dealing with a complaint pursuant to the 2004 Act. Indeed, there is now no body able to consider whether or not a practitioner has been guilty of the "old" offences of misconduct or unsatisfactory conduct. A lacuna in the legislation may exist.
3. However, it seems to me that an essential ingredient of this submission is that, until such time as the Tribunal has entertained and ruled upon a complaint of misconduct or unsatisfactory conduct in accordance with Part 5 of the LPA, there is no jurisdiction to entertain a complaint pursuant to s.103(1)(b) of the LPA. That part of the application, so the submission goes, should be dismissed because jurisdiction has not been established.
4. I am not of that view, and I prefer the submissions of Mr Antill. The contrasting wording of s.103(1)(b) of the LPA and s.3.4.32 of the 2004 Act is instructive. In s.103(1)(b) of the LPA, the relevant wording is "... has been guilty of misconduct or unsatisfactory conduct in relation to the provision of legal services to which the agreement relates". In s.3.4.32 of the 2004 Act, the wording is "... has been found guilty of unsatisfactory professional conduct or professional misconduct in relation to the provision of legal services to which the agreement relates". (My underlining). Mr Phillips argued that this important difference in wording reveals an acknowledgement on the part of the legislature of the potential tension existing between s.103(1)(b) of the LPA and the relevant sections in Part 5 of that Act. That may be so. However, the fact that the legislature did not include the word "found" in s.103(1)(b) of the LPA, but saw fit to include it in s.3.4.32 of the 2004 Act, seems to me to militate against an argument that the word "found" should be read into s.103(1)(b). Indeed, its presence in the later Act underlines the fact that the word has not been inserted in the relevant section of the earlier Act. That is in addition to other arguments that may be advanced concerning the reading into Acts of Parliament of words not included by the legislature. There is no suggestion that the wording of s.103(1)(b) contains a mistake. Nor is it part of the judicial function to fill in gaps, if there be any, with missing words - see Lindner v Wright (1976) 14 ALR 105. As was said by Lord Mersey in Thompson v Goold & Co. [1910] AC 409, "... it is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do". This is an oft quoted statement recently cited by Callaway JA in Commissioner of State Revenue v Australian Football League [2006] VSCA 24. No clear necessity exists in the present case. Whatever may be the situation in relation to the 2004 Act, the LPA did not require a finding of guilt by the Legal Profession Tribunal in relation to misconduct or unsatisfactory conduct before a client could seek to cancel a costs agreement on those grounds.
5. Apart from any arguments based directly upon the principles of statutory interpretation, I am not satisfied that the argument of Mr Phillips concerning issue estoppel is correct. It is to be recalled that his submission was that, if the Tribunal found misconduct or unsatisfactory conduct for the purposes of s.103(1)(b), this would create an issue estoppel in relation to any complaint subsequently brought against the same practitioner. As argued by Mr Antill, the prosecution of a claim pursuant to s.103(1)(b) is a matter for the client. The client is the applicant. By way of contrast, pursuant to Part 5 of the LPA, and particularly ss.151 and 157, the party bringing the charge of misconduct or unsatisfactory conduct is the Legal Ombudsman, an RPA or the Board. There does not seem to be the required identity of parties for the purposes of issue estoppel.
6. Be that as it may, the principal difficulty faced by OTC seems to me to be one of statutory interpretation. As conceded by Mr Phillips as part of his argument, I am required to read into s.103(1)(b) an important word that is simply not there. That is something which I am reluctant to do.
7. Nor am I satisfied that not so to do would in some way prejudice OTC. No complaint has been lodged against it. No investigation pursuant to Part 5 of the LPA has been conducted into it. I agree with Mr Antill that, if a finding was made to cancel a costs agreement on the basis of misconduct or unsatisfactory conduct, no penalty pursuant to Part 5 could be imposed. The procedures pursuant to that Part are specified. They might traverse different or additional grounds compared with those covered in an argument concerning the cancelling of a costs agreement and involving the same general circumstances. If a charge is laid, arguments might be advanced that the standard of proof required is different from any requirement pursuant to s.103. As already stated, the parties would be different.
8. In summary, I am not persuaded by the argument that there needs to be antecedent findings of guilt in relation to misconduct or unsatisfactory conduct. I am reinforced in this view by the various decisions of the Legal Profession Tribunal and of VCAT to which I have been referred. Whilst I am not bound by such decisions, arguably the principles of comity between co-ordinate divisions of the same jurisdiction would lead to the conclusion that I should follow such decisions unless I am convinced that they are wrong. Far from being convinced that they are erroneous, I am satisfied that they are correct.
9. In Alessi v Moses [2005] VLPT 18, Senior Member Howell, as he now is, dealt with an application pursuant to s.103 of the LPA in which the grounds relied upon included various allegations of misconduct or unsatisfactory conduct. It is clear that Senior Member Howell proceeded to hear and determine the application, including the allegations of misconduct or unsatisfactory conduct, without there being any antecedent finding establishing guilt in relation to those allegations. Indeed, it is evident from paragraph 5.02 of his lengthy judgment that Senior Member Howell had specifically refused to adjourn the matter in order that such a complaint, dealing with the same allegations, could be dealt with. He gave a number of reasons for refusing the adjournment, including that the Applicants had no control over the investigation of the complaint, which was a matter for the relevant professional body. In his written submissions, Mr Antill also referred to a number of cases in which the Legal Profession Tribunal and VCAT dealt with applications pursuant to s.103 of the LPA in circumstances where misconduct or unprofessional conduct was alleged but no complaint pursuant to Part 5 had been determined. These cases include the recent decision of Member Butcher in McVeigh v Moses [2007] VCAT 342.
10. In summary, I am of the view that the Tribunal does possess the jurisdiction to hear an application pursuant to s.103(1)(b) of the LPA where reliance is placed upon allegations of misconduct or unsatisfactory conduct without there having been a previous finding of guilt in relation to such allegations pursuant to Part 5 of the Act.
11. In my opinion, and partly as a result of the above finding, the submission of Mr Phillips in relation to a lacuna in the legislation also fails. Firstly, I have found that no complaint pursuant to Part 5 of the Act need be laid and determined prior to the hearing of an application pursuant to s.103(1)(b). Any difficulty which might arise pursuant to the transitional provisions, or because of the change in terminology in relation to misconduct or unsatisfactory conduct in the context of a disciplinary hearing, is therefore removed. Secondly, I do not accept the proposition that, because of the transitional provisions and the altered definitions, no body possesses the jurisdiction to determine whether or not a practitioner has been guilty of misconduct or unsatisfactory conduct within the meaning of Part 5 if no complaint was made before the commencement day. There may be force in this submission in relation to a disciplinary complaint. However, applications pursuant to s.103, that section being within Part 4 of the LPA, are specifically governed by Clause 3.1(1) of Schedule 2 of the 2004 Act. The factor that determines whether the LPA or the 2004 Act applies is the date when the client first instructed the law practice. In the present case, there is no argument but that it was before the commencement day. Therefore Part 4 of the LPA applies and, in particular, s.103(1)(b). That specifically refers to the concept of a legal practitioner or firm being guilty of misconduct or unsatisfactory conduct. The jurisdiction of the Tribunal to investigate and determine such matters in the context of an application to cancel a costs agreement has thus been preserved. Whatever may be the situation in relation to a disciplinary hearing, there is no lacuna.
12. In addition, I do not accept the submission of Mr Phillips that, in s.103(2) of the LPA, the word "may" is, in essence, mandatory or directive. It has not been treated in this way in previous hearings before the Legal Profession Tribunal or VCAT, and correctly so. It would have been relatively simple for the legislature to have used a word such as "shall" or "must". It chose to use the word "may" as indeed it did in, for example, s.103(3) in relation to the ordering of costs. Section 103(3) is clearly a discretionary provision. This does not assist Mr Phillips' principal submission concerning jurisdiction.
13. Subject to any further argument concerning an adjournment, and in a situation where no complaint has even been laid, I find it difficult to see why this matter should be adjourned pending completion of an investigation or charge. However, at this stage, it is jurisdiction and s.77 of the VCAT Act with which I am dealing.
14. Having determined that the application is properly before me in relation to all relevant provisions contained in s.103(1) and upon which reliance is placed, I now turn to the application pursuant to s.77 of the VCAT Act. In my opinion, the submissions on behalf of Naylor are again to be preferred. I am not persuaded by arguments based upon complexity, or by the fact that matters relating to the original substantial litigation and its settlement will have to be revisited. This Tribunal is the first port of call for matters concerning the regulation of the legal profession and complaints in relation to the costs charged by its members. The jurisdiction to hear applications to cancel costs agreements resides here. If that involves revisiting what occurred in the original or principal litigation, so be it. Where there are disputes about costs and the provision of legal services, the revisiting of what occurred in the very piece of litigation for which the client engaged the legal practitioner will often be necessary. The fact that there may be some complexity or that examination of High Court authority may be required is equally unpersuasive. This Tribunal, as was the Legal Profession Tribunal, is an expert body with members well equipped to deal with matters such as this.
15. The fact that Naylor arguably could pursue a claim in the County Court pursuant to the Fair Trading Act or the Trade Practices Act is not to the point. He has opted to bring an application to cancel the costs agreement with OTC, and the jurisdiction to entertain that application resides here. It is potentially futile to attempt to refer a matter to a Court or Tribunal which may find that it does not possess the required jurisdiction and is obliged to refer the matter back. As stated, that Naylor may be able to issue proceedings pursuant to other legislation in the County Court is not to the point. This Tribunal possesses the necessary jurisdiction in relation to costs agreements and is equipped to hear the matter.
16. As previously stated, in the County Court OTC has a proceeding on foot in which it seeks to recover legal costs from Naylor, and in relation to which Naylor's application for a stay has been adjourned by His Honour Judge Anderson pending the outcome of this application. Without in any way prejudging what His Honour might do upon the resumption of this adjourned application, the arrangement entered into seems to have been that OTC's County Court proceeding would be stayed pending the outcome of its application here pursuant to s.77. That application having failed, and the VCAT proceeding remaining on foot, presumably Naylor's stay application can be revived. Of course, whether or not a stay would then be granted is entirely a question for His Honour. However, whether or not a stay be granted, I accept that the County Court proceeding is at a very early stage and that the filing of an Amended Statement of Claim is foreshadowed. Even if it were jurisdictionally possible to refer a matter such as this to the County Court, having first struck it out, it would be a course which I would be reluctant to pursue given that Naylor has opted to pursue an application out of this Tribunal and that the County Court proceeding has, understandably, progressed a very small distance indeed.
17. It seems to me that the course of action adopted by OTC in bringing an application pursuant to s.77 of the VCAT Act is in part misconceived. What it appears to have been seeking is a dismissal of a substantial part of Naylor's application pursuant to s.75 of the VCAT Act on the grounds of a want of jurisdiction. It then seems to be seeking a referral of whatever remains, be it all or part of the proceeding, to the County Court, or inviting Naylor to bring some sort of action there pursuant to other legislation. Alternatively again, it seems to be seeking an adjournment in order to enable Naylor to lodge a complaint which would result in an investigative process and a determination, whilst at the same time saying that there is a lacuna in the legislation which would prevent this. Even if its application was treated in this way and not as an application pursuant to s.77 in the strict sense, OTC fails. This Tribunal possesses the jurisdiction to deal with an application to cancel a costs agreement. If it does so cancel it, pursuant to s.103(3) it may then make such order as it thinks fit in relation to the payment of legal costs the subject of the cancelled agreement, and in so doing it may take into account the seriousness of the conduct of the legal practitioner involved. Thus, it possesses the jurisdiction to deal with the entire question of the costs dispute between Naylor and OTC, particularly when it is remembered that this Tribunal is also the first port of call for matters involving the Fair Trading Act. VCAT seems to me to be the logical place for this dispute to be heard. Again, this Tribunal appears appropriate if consideration is given to the factors listed by Warren J (as she then was) in Rogan & Ors v Rushton (Qld) Pty Ltd & Ors [2002] VSC 375, namely:-

"... the governing law of any agreement in dispute, secondly, the connection between the alleged conduct and the jurisdiction, and, thirdly, the cost and convenience for the parties as to the forum selected ..."

To again refer to the words of Gillard J in Ewins, it is the natural forum based upon connecting factors. It is the forum intended by the legislature to deal with a matter such as this, and it possesses the necessary jurisdiction.

1. In summary, OTC's application is dismissed. I shall hear the parties on the question of any ancillary orders that may be required, and shall reserve liberty to apply.