Commonwealth Consolidated Regulations Commonwealth Consolidated RegulationsSchedule 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 new
retainer entered into by a client in the client’s case after
30 June 2008, if the client instructs a new lawyer in a new firm; 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.
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.
(5) In this Schedule:
small claim means a case that was determined in accordance with Division
11.2.3 as in force immediately before 1 July 2008.
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) This rule applies
to the following court events:
(a) conciliation
conference;
(b) the first day of
the allocated dates mentioned in rules 16.10 and 16.13;
(c) any other court
events that the court orders.
(2) 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;
(b) the estimated
future costs of the party up to and including each future court event; and
(c) any expenses paid
or payable to an expert witness or, if those expenses are not known, an
estimate of the expenses.
(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 (2); 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
the first day of the final stage of the 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 (2) 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.
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 for interim, procedural, ancillary or other incidental orders.
(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.
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.
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 as an issue a disputed item included in 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.
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 as
a disputed item in the 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).