Commonwealth Numbered Regulations

[Index] [Table] [Search] [Search this Regulation] [Notes] [Noteup] [Previous] [Next] [Download] [Help]

FAMILY LAW AMENDMENT RULES 2008 (NO. 1) (SLI NO 62 OF 2008) - SCHEDULE 2

Amendments commencing on 1 July 2008

(rule 3)

   

[1]           Subrule 1.08 (3), note

after

subrule 19.10 (1)

insert

and subclause 6.10 (1) of Schedule 6

[2]           Table 2.2, items 2A and 10A

omit

subsection 60I (5) or

[3]           Subrule 11.15 (3), note 2

after

subrule 19.40 (2)

insert

and subclause 6.41 (2) of Schedule 6

[4]           Part 12.2, note 2

after

rule 19.04

insert

and clause 6.04 of Schedule 6

[5]           Rule 17.03

substitute

                For paragraphs 87 (11) (b) and 90KA (b) and subsection 117B (1) of the Act, the rate of interest prescribed, for each 12 months commencing on 1 July each year, is the sum of:

                (a)    the Reserve Bank of Australia target cash rate on 1 July of the year or, if there is more than 1 rate, the highest of them; and

               (b)    5%.

Note    For the date from which interest is payable, see section 117B of the Act.

[6]           Table 18.5, item 32

substitute

32

Chapter 19 and Schedule 6 (except Parts 19.2 and 19.8 and clauses 6.17 and 6.18, and Parts 6.2 and 6.8, of Schedule 6)

Power to make an order in relation to costs and the assessment of costs

[7]           Chapter 19, heading

substitute

Chapter 19   Party/party costs

[8]           Chapter 19, summary

substitute

Summary of Chapter 19

Chapter 19 regulates the costs between parties for fresh applications in family law cases, except any part of a case in which a Family Court is exercising its bankruptcy jurisdiction . Chapter 26 contains provisions which regulate the charges of lawyers for a part of a case involving bankruptcy matters.

For a dispute between a lawyer and a client about the costs charged by the lawyer:

(a)   for a fresh application commenced after 30 June 2008;

(b)   under a new agreement between the lawyer and the client entered into after 30 June 2008; or

(c)   under a retainer entered into by a new lawyer after 30 June 2008;

see the State or Territory legislation governing the legal profession in the State or Territory where the lawyer practices.

For the meaning of fresh application , see the Dictionary.

Schedule 6 Costs  -- rules before 1 July 2008 sets out the rules that apply to cases not covered by this Chapter.

The rules in Chapter 1 relating to the court's general powers apply in all cases and override all other provisions in these Rules.

A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules.

[9]           Subrule 19.01 (1)

substitute

         (1)   Subject to subrule (3), this Chapter:

                (a)    applies to costs for work done for a case, or in complying with pre‑action procedures, in relation to a fresh application, paid or payable by one party to another; and

               (b)    creates a duty for lawyers to give information about costs to their clients.

[10]         After rule 19.02

insert

Part 19.1A           Obligations of a lawyer about costs

[11]         Rule 19.03

substitute

19.03       Duty to inform about costs

         (1)   If an offer to settle is made during a property case, the lawyer for each party must tell the party:

                (a)    the party's actual costs, both paid and owing, up to the date of the offer to settle; and

               (b)    the estimated future costs to complete the case;

to enable the party to estimate the amount the party will receive if the case is settled in accordance with the offer to settle, after taking into account costs.

         (2)   In this rule:

"lawyer" does not include counsel instructed by another lawyer.

[12]         Part 19.4

omit

[13]         Subrule 19.18 (1)

substitute

         (1)   This rule sets out the maximum amount of costs a lawyer may charge and recover for work done for a case:

                (a)    if the court orders that costs are to be paid and does not fix the amount; and

               (b)    if a person is entitled to costs under these Rules.

[14]         Subrule 19.18 (3)

omit

[15]         Rule 19.19, heading

substitute

19.19       Method of calculation of costs

[16]         Subrule 19.19 (1)

omit

that rule 19.18 does not apply and

[17]         Rule 19.20, note

omit

[18]         Subrule 19.21 (1) 

substitute

         (1)   A person entitled to party and party costs must serve an itemised costs account on the person liable to pay the costs within 28 days after the end of the case.

Note    A person entitled to costs may serve an itemised costs account even if the person liable to pay the costs has not requested it.

[19]         Subrule 19.34 (1), note

omit

[20]         Subrule 19.34 (2)

omit

[21]         Subrule 19.34 (3)

renumber as subrule 19 . 34 (2)

[22]         Subrule 19.34 (4)

renumber as subrule 19 . 34 (3)

[23]         Rule 19.39

omit

[24]         Rule 19.40

substitute

19.40       Costs in court of summary jurisdiction

                A party cannot recover from another party costs, for work done by a lawyer in a court of summary jurisdiction or for a small claim, that are more than 80% of the amount mentioned in Schedule 3 that may be charged for the work.

Note 1    For requirements relating to small claims, see rule 11.15.

Note 2    This rule applies unless the court orders otherwise (see rule 1.12).

[25]         Subrule 19.45 (4), notes 1 and 2

substitute

Note    This rule applies unless the court orders otherwise (see rule 1.12).

[26]         Rule 19.53

omit

[27]         After subrule 20.01 (2)

insert

      (2A)   For paragraph (1) (a), an obligation to pay money does not include an obligation arising out of costs for work done for a fresh application payable by a person to the person's lawyer.

Note    For enforcement of lawyer-client costs for a fresh application, see the State or Territory legislation governing the legal profession in the State or Territory where the lawyer practices.

[28]         Subrule 22.49 (2)

omit

Part 19.2 applies

insert

Part 19.2 and Part 6.2 of Schedule 6 apply

[29]         Schedule 1, Part 1, subclause 2 (3)

after

11.03 (2) (b) and 19.10 (1) (b)

insert

, and paragraph 6.10 (1) (b) of Schedule 6

[30]         Schedule 1, Part 2, clause 6, note

after

rules 1.08 and 19.03

insert

and clause 6.03 of Schedule 6

[31]         Schedule 1, Part 2, paragraph 6 (1) (f)

after

rule 19.03

insert

and clause 6.03 of Schedule 6

[32]         Schedule 3, heading, reference

after

rule 19.18

insert

and clause 6.19 of Schedule 6

[33]         After Schedule 5

insert

Schedule 6         Costs -- rules before 1 July 2008

(Chapter 19)

Summary of Schedule 6

Schedule 6 regulates:

(a)   party/party costs for applications that are not covered by Chapter 19; and

(b)   the charges of lawyers in family law cases that commenced before 1 July 2008 as provided in subclause 6.01 (1), except:

          (i)   for a fresh application commenced after 30 June 2008;

         (ii)   under a new agreement between the lawyer and the client entered into after 30 June 2008;

        (iii)   under a retainer entered into by a new lawyer after 30 June 2008; or

       (iv)   for any part of a case in which a Family Court is exercising its bankruptcy jurisdiction.

Chapter 26 contains provisions which regulate the charges of lawyers for a part of a case involving bankruptcy matters.

The rules in Chapter 1 relating to the court's general powers apply in all cases and override all other provisions in these Rules.

A word or expression used in this Schedule may be defined in the dictionary at the end of these Rules.

Part 6.1        General

6.01        Application of Schedule 6

     (1)       This Schedule only applies to costs for work done for a case, or in complying with pre‑action procedures associated with a case, that commenced before 1 July 2008.

         (2)   Subject to subclause (4), this Schedule applies to costs for work done for a case, or in complying with pre‑action procedures, paid or payable by:

                (a)    a client to a lawyer;

               (b)    if paragraph (a) does not apply -- one person to another person.

     (3)       For work to which this Schedule applies, a party may only recover costs from another party in accordance with this Schedule or an order.

Note    A self‑represented party is not entitled to recover costs for work done for a case (except work done by a lawyer) but, if so ordered, may be entitled to recover some payments.

     (4)       This Schedule does not apply to costs in any part of a case in which a Family Court is exercising its jurisdiction under section 35 or 35B of the Bankruptcy Act.

6.02        Interest on outstanding costs

                Interest is payable on outstanding costs at the rate mentioned in rule 17.03.

6.03        Duty to inform about costs

     (1)       When a lawyer receives instructions to act for a party (the client ) in a case, the lawyer must give the client:

                (a)    a costs notice; and

               (b)    written advice about:

                          (i)    the basis on which costs will be calculated;

                         (ii)    an estimate, if practicable, or a range of estimates of the total costs of conducting the case;

                         (iii)    how party and party costs may apply in addition to the client's own costs; and

                        (iv)    whether any other lawyer or an expert witness will be retained and, if so, the estimated cost.

     (2)       The lawyer must, when sending an account or itemised costs account to a client, include in the account a notice referring to the costs notice.

     (3)       If an offer to settle is made during a property case, the lawyer for each party must tell the party:

                (a)    the party's actual costs, both paid and owing, up to the date of the offer to settle; and

               (b)    the estimated future costs to complete the case;

to enable the party to estimate the amount the party will receive if the case is settled in accordance with the offer to settle, after taking into account costs.

     (4)       In this clause:

"lawyer" does not include counsel instructed by another lawyer.

6.04        Notification of costs

     (1)       Immediately before each court event, the lawyer for a party must give the party a written notice of:

                (a)    the party's actual costs, both paid and owing, up to and including the court event; and

               (b)    the estimated future costs of the party up to and including each future court event.

     (2)       If a notice under subclause (1) is given immediately before a trial, it must include the following details:

                (a)    the actual costs incurred by the party up to and including the first day of the trial;

               (b)    any expenses paid or payable to an expert witness or, if those expenses are not known, an estimate of any expenses;

                (c)    the costs payable for each day of the trial, excluding the first day;

               (d)    the estimated length of the trial.

     (3)       At each court event:

                (a)    a party's lawyer must give to the court and each other party a copy of the notice given to the party under subclause (1); and

               (b)    an unrepresented party must give to the court and each other party a written statement of:

                          (i)    the actual costs incurred by the party up to and including the event; and

                         (ii)    the estimated future costs of the party up to and including each future court event.

     (4)       Immediately before a trial, an independent children's lawyer must give to the court and each party a written statement of the actual costs incurred by the independent children's lawyer up to and including the trial.

     (5)       In a financial case, a notice under subclause (1) or a statement under paragraph (3) (b) must specify the source of the funds for the costs paid or to be paid unless the court orders otherwise.

Note    The court may relieve a party from being required to disclose the source of the funds if, for example, the source is a third party (see rule 1.12).

     (6)       At the end of a court event, the court must return the copy of the notice or statement given under this clause to the person who gave it.

     (7)       In this clause:

"court event" does not include an attendance with a family counsellor, a family dispute resolution practitioner or a family consultant in a parenting case.

"lawyer" does not include counsel instructed by another lawyer.

Part 6.2        Security for costs

6.05        Application for security for costs

     (1)       A respondent may apply for an order that the applicant in the case give security for the respondent's costs.

Note    Chapter 5 sets out the procedure for making an application in a case.

     (2)       In deciding whether to make an order, the court may consider any of the following matters:

                (a)    the applicant's financial means;

               (b)    the prospects of success or merits of the application;

                (c)    the genuineness of the application;

               (d)    whether the applicant's lack of financial means was caused by the respondent's conduct;

                (e)    whether an order for security for costs would be oppressive or would stifle the case;

                (f)    whether the case involves a matter of public importance;

                (g)    whether a party has an order, in the same or another case (including a case in another court), against the other party for costs that remains unpaid;

                (h)    whether the applicant ordinarily resides outside Australia;

                 (i)    the likely costs of the case;

                (j)    whether the applicant is a corporation;

               (k)    whether a party is receiving legal aid.

     (3)       In subclause (1):

"respondent" includes an applicant who has filed a reply because orders in a new cause of action have been sought in the response.

6.06        Order for security for costs

                If the court orders a party to give security for costs, the court may also order that, if the security is not given in accordance with the order, the case of the party be stayed.

Note    The court may, on application or on its own initiative, dismiss a case for want of prosecution.

6.07        Finalising security

     (1)       Security for costs may be applied in satisfaction of any costs ordered to be paid.

     (2)       Security for costs may be discharged by order.

     (3)       If security for costs is paid into court, the court may order that it be paid out of court.

Part 6.3        Costs orders

6.08        Order for costs

     (1)       A party may apply for an order that another person pay costs.

     (2)       An application for costs may be made:

                (a)    at any stage during a case; or

               (b)    by filing an Application in a Case within 28 days after the final order is made.

     (3)       A party applying for an order for costs on an indemnity basis must inform the court if the party is bound by a costs agreement in relation to those costs and, if so, the terms of the costs agreement.

Note 1    The court may make an order for costs on its own initiative (see rule 1.10).

Note 2    A party may apply for an order for costs within 28 days after the filing of a notice of discontinuance by the other party (see subrule 10.11 (4)).

Note 3    A party may apply for an extension of time to make an application (see rule 1.14).

     (4)       In making an order for costs, the court may set a time for payment of the costs that may be before the case is finished.

6.09        Costs order for cases in other courts

     (1)       This clause applies to a case in the Family Court that:

                (a)    has been transferred from another court; or

               (b)    is on appeal from a decision of another court.

     (2)       The Family Court may make an order for costs in relation to the case before the other court.

     (3)       The order may specify:

                (a)    the amount to be allowed for the whole or part of the costs; or

               (b)    that the whole or part of the costs is to be calculated in accordance with these Rules or the rules of the other court.

6.10        Costs orders against lawyers

     (1)       A person may apply for an order under subclause (2) against a lawyer for costs thrown away during a case, for a reason including:

                (a)    the lawyer's failure to comply with these Rules or an order;

               (b)    the lawyer's failure to comply with a pre‑action procedure;

                (c)    the lawyer's improper or unreasonable conduct; and

               (d)    undue delay or default by the lawyer.

     (2)       The court may make an order, including an order that the lawyer:

                (a)    not charge the client for work specified in the order;

               (b)    repay money that the client has already paid towards those costs;

                (c)    repay to the client any costs that the client has been ordered to pay to another party;

               (d)    pay the costs of a party; or

                (e)    repay another person's costs found to be incurred or wasted.

6.11        Notice of costs order

     (1)       Before making an order for costs against a lawyer or other person who is not a party to a case, the court must give the lawyer or other person a reasonable opportunity to be heard.

     (2)       If a party who is represented by a lawyer is not present when an order is made that costs are to be paid by the party or the party's lawyer, the party's lawyer must give the party written notice of the order and an explanation of the reason for the order.

Part 6.4        Lawyer and client costs

6.12        When this Part does not apply

                This Part does not apply to costs for work done for a case, paid or payable by a client to a lawyer:

                (a)    for a fresh application commenced after 30 June 2008;

               (b)    by a lawyer who is first retained by a client after 30 June 2008, even if the case in which the lawyer is retained to act is pending on 30 June 2008; or

                (c)    if the lawyer and client agree in writing, and free from undue influence, that these Rules do not apply to the regulation of the costs to be charged.

6.13        Costs not to be charged

     (1)       A lawyer must not charge:

                (a)    an amount for costs improperly, unreasonably or negligently incurred by the lawyer; or

               (b)    for work done for the administration of the lawyer's office.

     (2)       A lawyer must not make an agreement with a client to avoid the requirement under paragraph (1) (a).

     (3)       Despite any clause in this Schedule, if:

                (a)    the client instructs the lawyer, in writing, to do work for a case, or incur an expense of a particular kind or amount, that the lawyer advises the client would be unreasonable and unlikely to be recovered on a party and party basis; and

               (b)    the lawyer does the work, or incurs the expense, in accordance with the client's instructions;

the lawyer may, as between the lawyer and the client, charge an amount for the costs incurred.

6.14        Steps before costs recovery

                A lawyer may start or continue a case to recover costs from a client only if:

                (a)    the lawyer has served on the client an account and a costs notice, and no request for an itemised costs account has been made under clause 6.21; or

               (b)    an itemised costs account has been served on the client and:

                          (i)    a Notice Disputing Itemised Costs Account has not been served under clause 6.24;

                         (ii)    a Notice Disputing Itemised Costs Account has been served under clause 6.24 and the dispute has been resolved by agreement between the parties; or

                         (iii)    a Notice Disputing Itemised Costs Account has been filed under subclause 6.25 (3) and the dispute has been determined or the Notice Disputing Itemised Costs Account has been withdrawn.

6.15        Costs agreements

     (1)       A lawyer may make a written agreement (the costs agreement ) with a client about the costs to be charged by the lawyer for work done for a case for the client.

     (2)       The costs agreement must:

                (a)    specify the type and amount of work to be done by the lawyer;

               (b)    set out:

                          (i)    the costs payable by the client for the work as a lump sum; or

                         (ii)    the basis on which the costs will be calculated;

                (c)    state whether a partner, employed lawyer or clerk will work on the case and, if so, that person's charge out rate;

               (d)    be fair and reasonable; and

                (e)    be signed by the lawyer and the client.

     (3)       The costs agreement may:

                (a)    relate to part only of a case; and

               (b)    be amended by written agreement.

     (4)       The costs agreement must not include a provision:

                (a)    preventing the client from taking civil action (including liability for negligence) against the lawyer;

               (b)    by which all or part of the costs payable for work done are calculated by reference to:

                          (i)    an amount ordered by the court;

                         (ii)    the amount of an agreed settlement or consent order; or

                         (iii)    the value of the property or money that may be recovered in a case to which the work relates; or

                (c)    that makes the costs payable only if the outcome of the case is in the client's favour.

6.16        Notice about costs agreement

                At the time of making a costs agreement with a client, a lawyer must:

                (a)    give each other party to the costs agreement a costs notice; and

               (b)    advise those parties to obtain independent legal advice about the costs agreement.

6.17        Validity and effect of costs agreement

                A party to a costs agreement may apply for an order:

                (a)    confirming, varying or setting aside the costs agreement; or

               (b)    determining any question relating to the validity or effect of the costs agreement.

6.18        Setting aside costs agreement

                The court may set aside a costs agreement if:

                (a)    it is unfair or unreasonable;

               (b)    it does not comply with this Part;

                (c)    the client was subject to undue influence or misrepresentation, or was fraudulently induced to enter the agreement; or

               (d)    the lawyer has not complied with clause 6.03, subclause 6.15 (2) or (4) or clause 6.16.

Part 6.5        Calculation of costs

6.19        Maximum amount chargeable

     (1)       This clause sets out the maximum amount of costs a lawyer may charge and recover for work done for a case, or in complying with pre‑action procedures:

                (a)    for a client;

               (b)    if the court orders that costs are to be paid and does not fix the amount; and

                (c)    if a person is entitled to costs under these Rules.

     (2)       The maximum amount of costs that a lawyer may charge and recover is as follows:

                (a)    for fees -- an amount calculated in accordance with Schedules 3 and 4;

               (b)    for an expense mentioned in Schedule 4 (other than item 101) -- the amount specified in Schedule 4 for that expense;

                (c)    for any other expenses -- a reasonable amount.

     (3)       However, for lawyer and client costs only, if there is a valid costs agreement between a lawyer and a client:

                (a)    subclause (2) does not apply; and

               (b)    the maximum amount of costs that the lawyer may charge and recover is the amount calculated in accordance with the costs agreement.

6.20        Party and party costs

     (1)       The court may order that clause 6.19 does not apply and that a party is entitled to costs:

                (a)    of a specific amount;

               (b)    as assessed on a lawyer and client basis or an indemnity basis;

                (c)    to be calculated in accordance with the method stated in the order; or

               (d)    for part of the case, or part of an amount, assessed in accordance with Schedule 3.

Example for paragraph (1) (c)

The stated method may be in accordance with Schedule 3 but with an additional percentage for complexity.

     (2)       In making an order under subclause (1), the court may consider:

                (a)    the importance, complexity or difficulty of the issues;

               (b)    the reasonableness of each party's behaviour in the case;

                (c)    the rates ordinarily payable to lawyers in comparable cases;

               (d)    whether a lawyer's conduct has been improper or unreasonable;

                (e)    the time properly spent on the case, or in complying with pre‑action procedures; and

                (f)    expenses properly paid or payable.

Part 6.6         Claiming and disputing costs

Division 6.6.1   Itemised costs account

Note    This Division provides that, if an account payable by a person is not in an itemised form, the person has the right to request an itemised account (an itemised costs account ). The person may then dispute the itemised costs account by following the procedures set out in this Division. A person may apply to extend the time for taking any action required under these Rules (see rule 1.14).

6.21        Request for itemised costs account

                A person who has received an account (except an itemised costs account) and wants to dispute the account, or any part of it, must, within 28 days after receiving the account, request the lawyer who sent it to serve an itemised costs account for the whole or part of the account disputed.

Note    A lawyer must give a costs notice to a client on receiving instructions and must, when serving an account or an itemised costs account, include a reference to the costs notice (see subclause 6.03 (2)).

6.22        Service of lawyer's itemised costs account

     (1)       A person entitled to costs must serve an itemised costs account on the person liable to pay the costs within 28 days after:

                (a)    for lawyer and client costs -- receiving a request for an itemised costs account; or

               (b)    for party and party costs -- the end of the case.

Note    A person entitled to costs may serve an itemised costs account even if the person liable to pay the costs has not requested it.

     (2)       For party and party costs, the person entitled to costs must serve a costs notice at the same time as the itemised costs account is served under subclause (1).

6.23        Lawyer's itemised costs account

     (1)       An itemised costs account (the account ) must specify each item of costs and expense claimed.

     (2)       Each item specified in the account must be numbered and described in sufficient detail to enable the account to be assessed.

     (3)       The account must set out, in columns across the page, the following information:

                (a)    in relation to each item for which costs are payable:

                          (i)    the date when the item occurred;

                         (ii)    a description of the item, including whether the work was done by a lawyer or an employee or agent of a lawyer;

                         (iii)    the amount payable for the item;

               (b)    at the end of the column setting out the amount payable -- the total amount payable for the items.

     (4)       For each expense claimed, the account must include:

                (a)    the date when the expense was incurred;

               (b)    the name of the person to whom the expense was paid;

                (c)    the nature of the expense; and

               (d)    the amount paid.

6.24        Disputing itemised costs account

                A person served with an itemised costs account may dispute it by serving on the person entitled to the costs a Notice Disputing Itemised Costs Account within 28 days after the account was served.

Note 1    A person may apply for an extension of time to dispute an account (see rule 1.14).

Note 2    If no Notice Disputing Itemised Costs Account is received and the costs are not paid, the person entitled to the costs may seek a costs assessment order (see clause 6.38).

Note 3    If the parties agree on the amount to be paid for costs, they may file a draft consent order (see Part 10.4 for consent orders).

6.25        Assessment of disputed costs

     (1)       This clause applies if a Notice Disputing Itemised Costs Account has been served under clause 6.24.

     (2)       The parties to a dispute in relation to costs must make a reasonable and genuine attempt to resolve the dispute.

     (3)       If the parties are unable to resolve the dispute, either party may ask the court to determine the dispute by filing in the filing registry of the court where the case was conducted the itemised costs account and the Notice Disputing Itemised Costs Account no later than 42 days after the Notice Disputing Itemised Costs Account was served.

     (4)       The court may take into account a failure to comply with subclause (2) when considering any order for costs.

Note 1    A party may apply for an extension of the time mentioned in subclause (3) (see rule 1.14).

Note 2    A person filing a document must serve the document on each person to be served (see subrule 7.04 (4)).

6.26        Amendment of itemised costs account and Notice Disputing Itemised Costs Account

                A party may amend an itemised costs account or a Notice Disputing Itemised Costs Account by filing the amended document with the amendments clearly marked:

                (a)    at least 14 days before the date fixed for the assessment hearing; or

               (b)    after that time with the consent of the other party.

Note 1    A party amending an itemised costs account or Notice Disputing Itemised Costs Account may apply for an extension of the time mentioned in paragraph (a) (see rule 1.14).

Note 2    The only items that may be raised at an assessment hearing are those items included in the itemised costs account or Notice Disputing Itemised Costs Account (see subclause 6.33 (2)).

Division 6.6.2   Assessment process

6.27        Fixing date for first court event

     (1)       On the filing of an itemised costs account and a Notice Disputing Itemised Costs Account under subclause 6.25 (3), the Registrar must fix a date for:

                (a)    a settlement conference (see clause 6.29);

               (b)    a preliminary assessment (see clause 6.30); or

                (c)    an assessment hearing (see clause 6.33).

     (2)       The date fixed must be at least 21 days after the Notice Disputing Itemised Costs Account is filed.

6.28        Notification of hearing

                A party filing a Notice Disputing Itemised Costs Account must give the party who served the itemised costs account at least 14 days notice of the court event and the date fixed for the event under clause 6.27.

6.29        Settlement conference

                At a settlement conference for an itemised costs account, the Registrar:

                (a)    must:

                          (i)    give the parties an opportunity to agree about the amount for which a costs assessment order should be made; or

                         (ii)    identify the issues in dispute; and

               (b)    must make procedural orders for the future conduct of the assessment process.

6.30        Preliminary assessment

     (1)       At a preliminary assessment of an itemised costs account, the Registrar must, in the absence of the parties, calculate the amount (the preliminary assessment amount ) for which, if the costs were to be assessed, the costs assessment order would be likely to be made.

     (2)       The Registrar must give each party written notice of the preliminary assessment amount.

6.31        Objection to preliminary assessment amount

     (1)       A party may object to the preliminary assessment amount by:

                (a)    giving written notice of the objection to the Registrar and the other party; and

               (b)    paying into court a sum equal to 5% of the total amount claimed in the itemised costs account as security for the cost of any assessment of the account;

within 21 days after receiving written notice of the preliminary assessment amount.

     (2)       On receiving a notice and security, the Registrar must fix a date for an assessment hearing for the itemised costs account.

     (3)       The party objecting may be ordered to pay the other party's costs of the assessment from the date of giving notice under paragraph (1) (a) unless the itemised costs account is assessed with a variation in the objecting party's favour of at least 20% of the preliminary assessment amount.

Note    The court may order that a party is not required to pay security under paragraph (1) (b).

6.32        If no objection to preliminary assessment

                If:

                (a)    a Registrar does not receive a notice of objection under paragraph 6.31 (1) (a); and

               (b)    an amount as security for costs is not paid under paragraph 6.31 (1) (b);

the Registrar may make a costs assessment order for the amount of the preliminary assessment amount.

6.33        Assessment hearing

     (1)       The Registrar conducting an assessment hearing for a disputed itemised costs account must:

                (a)    determine the amount (if any) to be deducted from each item included in the Notice Disputing Itemised Costs Account;

               (b)    determine the total amount payable for the costs of the assessment (if any);

                (c)    calculate the total amount payable for the costs allowed;

               (d)    deduct the total amount (if any) of costs paid or credited; and

                (e)    calculate the total amount payable for costs.

     (2)       At the assessment hearing, a party may only raise an item included in the itemised costs account or the Notice Disputing Itemised Costs Account.

     (3)       At the end of the assessment hearing, the Registrar must:

                (a)    make a costs assessment order; and

               (b)    give a copy of the order to each party.

Note    At an assessment hearing, the onus of proof is on the person entitled to costs. That person should bring to the hearing all documents supporting the items claimed.

     (4)       Within 14 days after the costs assessment order is made, a party may ask the Registrar to give reasons for the Registrar's decision about a disputed item.

6.34        Powers of Registrars

     (1)       A Registrar may do any of the following at an assessment hearing:

                (a)    summon a witness to attend;

               (b)    examine a witness;

                (c)    require a person to file an affidavit;

               (d)    administer an oath;

                (e)    order that a document be produced;

                (f)    make an interim or final costs assessment order;

                (g)    adjourn the assessment hearing;

                (h)    if satisfied that there has been a gross or consistent breach of a lawyer's obligations under this Schedule -- refer an issue to the appropriate professional regulatory body;

                 (i)    refer to the court any question arising from the assessment;

                (j)    determine whether costs were reasonably incurred, were of a reasonable amount and were proportionate to the matters in issue;

               (k)    make a consent order fixing the amount of costs to be paid;

                 (l)    dismiss an account if:

                          (i)    it does not comply with these Rules or an order; or

                         (ii)    the person entitled to costs does not attend the assessment hearing;

               (m)    order costs;

                (n)    do, or order another person to do, any other act that is required to be done under these Rules or an order.

Example for paragraph (1) (h)

An example of the kind of issue that may be referred to a professional regulatory body for a lawyer is if the lawyer grossly overcharged a client or failed to disclose an important issue.

     (2)       On being satisfied that the time for reviewing a costs assessment order has passed, the Registrar must:

                (a)    determine how any amount paid as security for the costs of assessment is to be distributed or refunded; and

               (b)    order that the payment be made out of court.

6.35        Assessment principles

     (1)       A Registrar must not allow costs that, in the opinion of the Registrar:

                (a)    are not reasonably necessary for the attainment of justice; and

               (b)    are not proportionate to the issues in the case.

Note    A lawyer may charge an amount for costs unreasonably incurred if the client gives the lawyer written instructions to do work for a case, or incur an expense of a particular kind or amount, that the lawyer has advised the client would be unreasonable and unlikely to be recovered on a party and party basis (see subclause 6.13 (3)).

     (2)       An itemised costs account for work that is the subject of a costs agreement must be assessed in accordance with the costs agreement.

     (3)       If the court has ordered costs on an indemnity basis, the Registrar must allow all costs reasonably incurred and of a reasonable amount, having regard to, among other things:

                (a)    the scale of costs in Schedule 3;

               (b)    any costs agreement between the party to whom costs are payable and the party's lawyer; and

                (c)    charges ordinarily payable by a client to a lawyer for the work.

     (4)       When assessing costs as between party and party, a Registrar must not allow:

                (a)    costs incurred because of improper, unnecessary or unreasonable conduct by a party or a party's lawyer;

               (b)    costs for work (in type or amount) that was not reasonably required to be done for the case; or

                (c)    unusual expenses.

6.36        Allowance for matters not specified

     (1)       A Registrar may allow a reasonable sum for work properly performed that is not specifically provided for in Schedule 3.

     (2)       When considering whether to allow an amount for costs or an expense, the Registrar may consider:

                (a)    any other fees paid or payable to the lawyer and counsel for work to which a fee or allowance applies;

               (b)    the complexity of the case;

                (c)    the amount or value of the property or financial resource involved;

               (d)    the nature and importance of the case to the party concerned;

                (e)    the difficulty or novelty of the matters raised in the case;

                (f)    the special skill, knowledge or responsibility required, or the demands made, of the lawyer by the case;

                (g)    the conduct of all the parties and the time spent on the case;

                (h)    the place where, and the circumstances in which, work or any part of it was done;

                 (i)    the quality of work done and whether the level of expertise was appropriate to the nature of the work; and

                (j)    the time in which the work was required to be done.

6.37        Neglect or delay before Registrar

     (1)       This clause applies if, after a Notice Disputing Itemised Costs Account disputing an itemised costs account has been filed under subclause 6.25 (3), a party or a party's lawyer:

                (a)    fails to comply with these Rules or an order; or

               (b)    puts another party to unnecessary or improper expense or inconvenience.

     (2)       The Registrar may:

                (a)    order the party to pay costs; or

               (b)    disallow all or part of the costs in the account.

6.38        Costs assessment order -- costs account not disputed

     (1)       This clause applies to a person entitled to costs who:

                (a)    has served an itemised costs account under clause 6.22; and

               (b)    has not received a Notice Disputing Itemised Costs Account under clause 6.24.

     (2)       A Registrar may make a costs assessment order if the person has filed:

                (a)    a copy of the itemised costs account; and

               (b)    an affidavit stating:

                          (i)    when the itemised costs account was served on the person liable to pay the costs;

                         (ii)    the amount (if any) that has been received or credited for the costs;

                         (iii)    that the person liable to pay the costs has not served a Notice Disputing Itemised Costs Account under clause 6.24; and

                        (iv)    that the time for serving a Notice Disputing Itemised Costs Account has passed.

     (3)       If a costs assessment order is made under subclause (2), the person entitled to costs must serve a copy of the order on the person liable to pay costs.

6.39        Setting aside a costs assessment order

     (1)       This clause applies to a party who is liable to pay costs and receives a costs assessment order under clause 6.32 or subclause 6.38 (3).

     (2)       The party may, within 14 days after receiving the costs assessment order, apply to have it set aside.

Note    If a party wishes to object to a costs assessment order after an assessment hearing has taken place, the party must do so in accordance with Part 6.8.

Part 6.7        Specific costs matters

6.40        Application of Part 6.7

                So far as this Part applies to lawyer and client costs, this Part does not apply if there is a valid costs agreement between a lawyer and a client.

6.41        Costs in court of summary jurisdiction

     (1)       This clause applies to a lawyer doing work for a case:

                (a)    conducted in a court of summary jurisdiction; or

               (b)    to be determined as a small claim.

Note    For requirements relating to small claims, see rule 11.15.

     (2)       The lawyer must not charge for the work a fee that is more than 80% of the amount mentioned in Schedule 3 that may be charged for the work.

6.42        Charge for each page

     (1)       A lawyer may charge the amount specified in Schedule 3 for a document only if it complies with the requirements for documents specified in rule 24.01.

     (2)       For Schedule 3, the calculation of the number of words in a document excludes words that are part of:

                (a)    an approved form;

               (b)    a Form in Schedule 2; or

                (c)    a document in a form approved by the Principal Registrar.

6.43        Proportion of costs

                If the scale in Schedule 3 provides for an amount to be charged that is based on time or number of words, the amount to be charged is an amount that is proportionate to the time or number of words actually taken or written.

6.44        Costs for reading

                If it is reasonable for a lawyer to read more than 50 pages for a case, the amount to be charged under item 104 in Schedule 3 is at the discretion of the Registrar.

6.45        Postage within Australia

                The charge mentioned in Schedule 3 for producing a document (including a letter) includes an allowance for:

                (a)    preparing one file copy of the document; and

               (b)    postage of the document in Australia.

6.46        Waiting and travelling time

     (1)       Subclause (2) applies if:

                (a)    a lawyer has travelled less than 100 km from the lawyer's place of business to attend court; and

               (b)    it is not appropriate or proper for an agent to attend court instead of the lawyer.

     (2)       The lawyer may charge an amount for time reasonably spent attending a court event if the lawyer was:

                (a)    at court waiting for the court event to start or resume after the time allocated; or

               (b)    travelling to or from court.

     (3)       A lawyer who attends court for the hearing of 2 or more cases may charge, for each case, an amount that is reasonable, having regard to the time spent at each hearing:

                (a)    travelling to or from court; or

               (b)    waiting for each hearing to start or resume.

     (4)       The total amount that may be charged under this clause for all cases must not be more than the amount that may be charged under Part 1 of Schedule 3 for one case.

Note 1    The lawyer may charge a higher amount in certain circumstances (see subclause 6.13 (3)).

Note 2    This clause applies unless the court orders otherwise (see rule 1.12).

6.47        Agent's fees

                The costs claimed by a lawyer for work done by another lawyer as agent of the lawyer must not be more than the amount the lawyer would have been entitled to charge under Schedule 3 if the lawyer had personally done the work.

Note    This clause applies unless the court orders otherwise (see rule 1.12). An agent may claim for an amount that is specifically authorised by a client (see subclause 6.13 (3)).

6.48        Costs of cases not started together

     (1)       This clause applies if:

                (a)    a lawyer starts a case for a client that could reasonably have been started at the same time, and in the same court, as another case between the same parties; and

               (b)    the case was not started at that time in that court.

     (2)       The lawyer may charge for work done for all the cases only the amount the lawyer could have charged if the lawyer had started all the cases at the same time in the same court.

6.49        Certificate as to counsel

                The judicial officer hearing a case may certify that it was reasonable to engage a lawyer (including Queen's Counsel and Senior Counsel) as counsel to attend for a party.

6.50        Lawyer as counsel -- party and party costs

     (1)       This clause applies to party and party costs for fees paid or to be paid to a lawyer engaged as counsel.

     (2)       The fees are a necessary expense for a case if:

                (a)    either:

                          (i)    the case was heard by the Full Court; or

                         (ii)    in any other case -- it was reasonable to engage counsel to attend in the case;

               (b)    for a hearing or trial, counsel:

                          (i)    was present for a considerable part of the hearing or trial; and

                         (ii)    gave substantial assistance during the period to which the fees relate in the conduct of the case; and

                (c)    the fees are not more than the amount otherwise payable under these Rules for counsel engaged to attend in a case.

6.51        Lawyer as counsel -- assessment of fees

     (1)       This clause applies to party and party costs for fees paid or to be paid to a lawyer engaged as counsel.

     (2)       The Registrar may allow the costs of engaging more than one counsel, including counsel who is not Queen's Counsel or Senior Counsel.

     (3)       If:

                (a)    counsel is engaged to attend at a trial; and

               (b)    the trial takes more than one day;

the Registrar may allow a fee in accordance with Part 2 of Schedule 3 for each further day or part of a day.

     (4)       The Registrar must not allow:

                (a)    a fee paid to counsel as a retainer;

               (b)    a reading fee, unless:

                          (i)    the case is unusually complex; or

                         (ii)    the amount of material involved is particularly large;

                (c)    for a case before a court of summary jurisdiction -- an amount for counsel's fees, other than in accordance with item 203 or 204 of Schedule 3; or

               (d)    if a daily fee for counsel's attendance is payable in accordance with Part 2 of Schedule 3 -- an additional amount for work done for the case by counsel on any day for which the daily fee applies.

6.52        Lawyer as counsel -- lawyer and client costs

     (1)       This clause applies to costs as between lawyer and client if:

                (a)    an amount is claimed for counsel's fees; and

               (b)    the lawyer performing the work of counsel is:

                          (i)    another lawyer instructed by the lawyer for the client; or

                         (ii)    also performing the work of solicitor for the client.

     (2)       The fees for counsel are properly incurred if:

                (a)    either:

                          (i)    the case was heard by the Full Court; or

                         (ii)    in any other case:

                                   (A)     it was reasonable to engage a lawyer to attend as counsel in the case; or

                                   (B)     the client asked that a lawyer be engaged to attend as counsel in the case; and

               (b)    the fees are reasonable and are not more than the amount otherwise payable under these Rules for counsel to attend.

Part 6.8        Review of assessment

6.53        Application for review

     (1)       A party may apply to the court to review the decision of a Registrar under clause 6.33 by filing an Application in a Case.

     (2)       A party must include in the affidavit filed with the application:

                (a)    the number of each item in the itemised costs account to which the party objects to the Registrar's decision;

               (b)    the reasons for objecting to the decision; and

                (c)    the decision sought from the court for each objection.

6.54        Time for filing an application for review

                An application for review must be filed within 14 days after the applicant receives the Registrar's reasons given after a request made under subclause 6.33 (4).

6.55        Hearing of application

     (1)       An application for review must be heard by a Judge.

     (2)       At the hearing of the application:

                (a)    the court must not receive any new evidence;

               (b)    the court may:

                          (i)    exercise all the powers of the Registrar;

                         (ii)    set aside or vary the Registrar's decision; and

                         (iii)    return any item to the Registrar for reconsideration; and

                (c)    a party may raise an issue only if it:

                          (i)    was identified in an itemised costs account or Notice Disputing Itemised Costs Account;

                         (ii)    concerns the costs of assessing the itemised costs account;

                         (iii)    concerns an alleged error of calculation in, or omission from, the assessment of the itemised costs account; or

                        (iv)    concerns an alleged error of law or fact by the Registrar, and the party has made a request under subclause 6.33 (4).

     (3)       A hearing of an application for review does not operate as a stay of the decision reviewed.

Note    This clause applies unless the court orders otherwise (see rule 1.12).

[34]         Dictionary, definition of costs agreement

substitute

costs agreement means a written agreement between a party and the party's lawyer, about the costs to be charged by the lawyer for work done for a case for the party, in accordance with:

        (a)    for an agreement entered into before 1 July 2008 -- clause 6.15 of Schedule 6; or

       (b)    for an agreement entered into after 30 June 2008 -- the law of a State or Territory.

[35]         Dictionary, after definition of financial orders

insert

fresh application means any of the following applications, including compliance with pre‑action procedures associated with them, made after 30 June 2008:

        (a)    an Application for Final Orders;

       (b)    an application that includes an Application for Final Orders;

        (c)    an Application in a Case filed in connection with a fresh application;

       (d)    an Application for Divorce;

        (e)    an application for consent orders;

        (f)    a contempt, contravention or enforcement application, unless an allegation of the contempt, contravention or breach relates to an interim or interlocutory order made in a pending or ongoing Application for Final Orders filed before 1 July 2008;

        (g)    an application relating to contempt in the face of the court arising from an event occurring after 30 June 2008;

        (h)    an appeal, and a re‑hearing following an appeal;

         (i)    an application for review of final orders made by a Registrar or Judicial Registrar.



AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback