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Under s4.3.5 of the Legal Profession Act 2004, the Legal Services Commissioner must attempt to resolve a civil dispute that is the subject of a civil complaint.
The Commissioner has delegated the function of attempting to resolve disputes to the Victorian Bar Inc.
Civil disputes
Any of the following is a civil dispute within the meaning of the Act:
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a. |
A dispute between a barrister and a person who is liable to pay legal costs not exceeding $25,000:
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between a barrister and a person who is charged with those costs or is liable to pay those costs (other than under a court or tribunal order for costs); or |
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between a barrister and a beneficiary under a will or trust in relation to which the barrister has provided legal services in respect of which those costs are charged; |
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b. |
A claim that a person has suffered pecuniary losses as a result of an
act or omission by a barrister in the provision of legal services to the person, other than loss in respect of which a claim lies against the Fidelity Fund;
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c. |
Any other genuine dispute between a person and a barrister arising out of or in
relation to the provision of legal services to the person by the barrister.
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A client may initiate the dispute resolution process by lodging a written request on the Complaint Form, with the Commissioner.
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Time limits
S4.2.7(1) of the Act provides that subject to subsection (2), a complaint must be made within 6 years after the conduct complained about allegedly occurred.
To the extent that a complaint involves a costs dispute, it must be made within 60 days after the legal costs were payable or, if an itemised bill was requested in respect of those costs, within 30 days after the request was complied with: s4.2.7(2) of the Act.
The Commissioner may under s4.2.7(3) accept a disciplinary complaint made outside the period referred to in sub-section (1) if satisfied that-
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there was a reasonable cause for the delay in making the complaint; or
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it is otherwise in the public interest to do so. |
The Commissioner may under s4.2.7(4) accept a complaint referred to in s4.2.7(2) made outside the period referred to in that sub-section (but made within 4 months after the end of that period) if satisfied that-
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there was a reasonable cause for the delay in making the complaint; and |
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legal proceedings have not been commenced for the recovery or review of the legal costs that are the subject of the complaint. |
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Barrister cannot sue for legal costs
A barrister may not commence proceedings to recover legal costs after being notified of the dispute: s4.3.2 of the Act.
Lodgment of unpaid legal costs
A client who makes a request for dispute resolution may be required to lodge with the Commissioner the unpaid amount of legal costs: s4.3.3 of the Act.
The role of the Commissioner and the Tribunal
The Commissioner (or its delegate) must attempt to resolve the dispute: s4.3.5 of the Act.
If settlement is achieved, a written agreement is prepared and signed by the parties. Either party can later enforce the agreement through the Magistrates Court: s4.3.12 of the Act.
If settlement cannot be achieved, the Commissioner must notify the parties.
Either party may, within 60 days of receiving such notification, refer the dispute to the Victorian Civil and Administrative Tribunal for conciliation and if that is unsuccessful the Tribunal will then hear and determine the dispute.
s4.3.15 of the Act.
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