How claims are determined - Victorian Legal Services Board + Commissioner

How compensation claims are determined

Investigation

After we receive your claim for compensation, we will assess it to see if we are able to accept it. If we can accept the claim, we will start an investigation. We may need to ask you for more information.

We may refer your claim to specialist investigators at the Law Institute of Victoria to investigate on our behalf, so you might be contacted by either the Board or Law Institute staff during the investigation. The Board will make the final decision about your claim.

The investigation will look for evidence of dishonest or fraudulent dealings with your trust money or property by a lawyer, an employee of a law practice or an approved barrister’s clerk.

Determining claims

The Uniform Law and associated Rules set out how we investigate and determine claims. They also state what may be excluded from the scheme, and under what circumstances we may disallow or reduce a claim even though a default has occurred.

We are committed to assessing all claims against the Fidelity Fund independently and on their individual merit. Under the Uniform Law, all claims must be determined independently at arm’s length from the legal profession. As a statutory entity, our Board is independent of all professional associations. We therefore meet this requirement. Further, both our Board and our Fidelity Fund Claims Advisory Committee include members who are not lawyers.

How long will it take?

Investigations usually take a several months to complete. Claims are often finalised within 6 to 12 months. If it looks like your claim will take longer, we will let you know how long we think it will take.

What claims are not accepted?

By law, we cannot accept some claims for compensation. The following types of claims are not covered by the fund:

  • money entrusted to a law firm for investments (unless the money was entrusted to the law firm for providing legal services, and held in an interest-bearing account until the completion of those legal services);
  • investments where an Australian Financial Services Licence was required to provide the financial service.
  • financial services provided by a law firm on behalf of others who carry on a financial services business.
  • managed investment schemes or mortgage financing undertaken by a law firm.
  • disputes about legal costs charged by a lawyer. [link to Complaints about legal costs and bills page]
  • claims where you have received, or are likely to receive compensation from some other source.

What affects the outcome of a claim?

We may accept your entire claim, partly accept your claim or reject your claim in full. There are several reasons why. These include where the investigation finds:

  • no loss has occurred;
  • you were involved in the act or omission which led to the loss;
  • you were negligent or contributed to the loss;
  • the conduct of the law practice or lawyer was illegal and you knew, or should have known this;
  • proper and usual records of the transaction were not maintained or were destroyed and you knew, or should have known this; or
  • you had unreasonably refused to disclose information or to cooperate with the investigation.

Appeals

If your claim is unsuccessful, we will notify you and explain the reasons for our decision. We will also tell you how you may appeal the decision.

Please note that if you wish to appeal our decision, the appeal must be lodged within 30 days of you receiving our written decision.

 

Last modified July 24, 2018.