Legal Profession Act 1987 No 109
Repealed version for 15 August 2005 to 30 September 2005 (accessed 23 December 2014 at 11:51)
Part 11Division 6

Division 6 Assessment of costs

Subdivision 1 Applications and referrals for assessment

199   Applications by clients for assessment of costs in bills

(1)  A client who is given a bill of costs may apply to the Manager, Costs Assessment for an assessment of the whole of, or any part of, those costs.
(2)  An application relating to a bill of costs may be made even if the costs have been wholly or partly paid. If the costs have been wholly or partly paid, the application is to be made within the period prescribed by the regulations for the purposes of this subsection.
(3)  If any costs have been paid without a bill of costs, the client may nevertheless apply for an assessment. For that purpose the request for payment by the barrister or solicitor is taken to be the bill of costs.
(4)  In this section, client includes:
(a)  any person who is a party to a costs agreement relating to legal services for which the bill of costs is given (other than the barrister or solicitor who gave the bill or provided the services), and
(b)  any person, being a lessee under a lease, who is given a bill of costs, concerning legal services relating to the preparation of that lease, by a barrister or solicitor acting on behalf of the lessor, and
(c)  any person, being a mortgagor under a mortgage, who is given a bill of costs, concerning legal services relating to the preparation of that mortgage, by a barrister or solicitor acting on behalf of the mortgagee.

200   Applications by instructing practitioners for assessment of costs in bills

(1)  A barrister or solicitor who retains another barrister or solicitor to act on behalf of a client may apply to the Manager, Costs Assessment for an assessment of the whole of, or any part of, a bill of costs given in accordance with this Part by the other barrister or solicitor in relation to the matter.
(2)  An application may not be made if there is a costs agreement between the client and the other barrister or solicitor.
(3)  An application is to be made within 30 days after the bill of costs is given, or within such further time as the Manager, Costs Assessment may allow, and may be made even if the costs have been wholly or partly paid.
(4)  Further time is to be allowed as referred to in subsection (3) only if the Manager, Costs Assessment is satisfied that the bill of costs was received more than 7 days after it was given and that it would be impracticable for an application to be made under this section unless further time were allowed.

201   Application for assessment of costs by barrister or solicitor giving bill

(1)  A barrister or solicitor who has given a bill of costs in accordance with this Part may apply to the Manager, Costs Assessment for an assessment of the whole of, or any part of, those costs.
(2)  An application may not be made unless at least 30 days have passed since the bill of costs was given or an application has been made under this Division by another person in respect of the bill of costs.

202   Application for assessment of party/party costs

(1)  A person who has paid or is liable to pay, or who is entitled to receive or who has received, costs as a result of an order for the payment of an unspecified amount of costs made by a court or a tribunal may apply to the Manager, Costs Assessment for an assessment of the whole of, or any part of, those costs.
(2)  A court or tribunal may direct the Manager, Costs Assessment to refer for assessment costs payable as a result of an order made by the court or tribunal. Any such direction is taken to be an application for assessment duly made under this Division.
(3)  An application or direction under this section may not be made in relation to costs arising out of criminal proceedings in a court.
(4)  Subsection (3) does not affect regulations made for the purposes of section 52 of the Land and Environment Court Act 1979 in connection with criminal proceedings in the Land and Environment Court.
Note. Matters may also be referred to costs assessors by the Legal Services Commissioner or a Council under Part 10.

203   How is an application to be made?

(1)  An application for assessment is to be made in accordance with the regulations and is, subject to subsection (4), to be accompanied by the fee prescribed by the regulations.
(2)  The application must authorise a costs assessor to have access to, and to inspect, all documents of the applicant that are held by the applicant, or by any barrister or solicitor concerned, in respect of the matter to which the application relates.
(3)  The application must contain a statement by the applicant that there is no reasonable prospect of settlement of the matter by mediation.
(4)  The Manager, Costs Assessment may waive or postpone payment of the fee either wholly or in part if satisfied that the applicant is in such circumstances that payment of the fee would result in serious hardship to the applicant or his or her dependants.
(5)  The Manager, Costs Assessment may refund the fee paid under this section either wholly or in part if satisfied that it is appropriate because the application is not proceeded with.

204   Persons to be notified of application

The Manager, Costs Assessment is to take such steps as are reasonably practicable to provide a copy of an application for assessment to any barrister, solicitor or client concerned or any other person whom the Manager, Costs Assessment thinks it appropriate to notify.

205   (Repealed)

206   Referral of matters to costs assessors

(1)  The Manager, Costs Assessment is to refer each application for assessment to a costs assessor to be dealt with under this Division.
(2)  A costs assessor who has an interest in an application must, as soon as practicable after becoming aware of that fact, refer the application to the Manager, Costs Assessment for referral to another costs assessor.
(3)  If the Manager, Costs Assessment is satisfied that it is inappropriate for a costs assessor to determine a particular application that has been referred to the costs assessor, the Manager, Costs Assessment may:
(a)  revoke the referral of the application, and
(b)  refer the application for assessment to another costs assessor.
(4)  An application that has been referred to another costs assessor under this section is to be dealt with as a new assessment or, if the Manager, Costs Assessment so directs, by continuing the assessment.
(5)  When a referral has been revoked, the costs assessor to whom the application was initially referred must return all documents relating to the assessment of the application to the Manager, Costs Assessment. This includes documents relating to any work done on the assessment and a statement of the amount calculated for costs in respect of any work done on the assessment.

207   Costs assessor may require documents or further particulars

(1)  A costs assessor may, by notice in writing, require a person (including the applicant, the barrister or solicitor concerned, or any other barrister, solicitor or client) to produce any relevant documents of or held by the person in respect of the matter.
(2)  The costs assessor may, by any such notice, require further particulars to be furnished by the applicant, barrister, solicitor, client or other person as to instructions given to, or work done by, the barrister or solicitor or any other legal practitioner in respect of the matter and as to the basis on which costs were ascertained.
(2A)  If the notice referred to in subsection (1) or (2) so directs, and if it is practicable for the person to whom the notice is given to comply with such a direction, the document or particulars required by the notice must be provided in electronic form in addition to, or instead of, in paper form (as the notice may specify).
(3)  The costs assessor may require any such particulars to be verified by statutory declaration.
(4)  A notice under this section is to specify the period within which the notice is to be complied with.
(5)  If a person fails, without reasonable excuse, to comply with a notice under this section, the costs assessor may decline to deal with the application or may continue to deal with the application on the basis of the information provided.
(6)  A barrister or solicitor who fails, without reasonable excuse, to comply with a notice under this section is guilty of professional misconduct.

208   Consideration of applications by costs assessors

(1)  A costs assessor must not determine an application for assessment unless the costs assessor:
(a)  has given both the applicant and any barrister, solicitor or client or other person concerned a reasonable opportunity to make written submissions to the costs assessor in relation to the application, and
(b)  has given due consideration to any submissions so made.
(2)  In considering an application, a costs assessor is not bound by rules of evidence and may inform himself or herself on any matter in such manner as he or she thinks fit.
(3)  For the purposes of determining whether an application for assessment may be or is required to be made, or for the purpose of exercising any other function, a costs assessor may determine any of the following:
(a)  whether or not disclosure has been made in accordance with Division 2 and whether or not it was reasonably practicable to disclose any matter required to be disclosed under Division 2,
(b)  whether a costs agreement exists, and its terms.

Subdivision 2 Assessments of bills of costs

208A   Assessment of bills generally

(1)  When considering an application relating to a bill of costs, the costs assessor must consider:
(a)  whether or not it was reasonable to carry out the work to which the costs relate, and
(b)  whether or not the work was carried out in a reasonable manner, and
(c)  the fairness and reasonableness of the amount of the costs in relation to that work.
(2)  A costs assessor is to determine the application by confirming the bill of costs or, if the assessor is satisfied that the disputed costs are unfair or unreasonable, by substituting for the amount of the costs an amount that, in his or her opinion, is a fair and reasonable amount.
(3)  Any amount substituted for the amount of the costs may include an allowance for any fee paid or payable for the application by the applicant.
(4)  If the barrister or solicitor is liable under section 182 (3) to pay the costs of the costs assessment (including the costs of the costs assessor), the costs assessor is to determine the amount of those costs. The costs incurred by the client are to be deducted from the amount payable under the bill of costs and the costs of the costs assessor are to be paid to the Manager, Costs Assessment.
(5)  A costs assessor may not determine that any part of a bill of costs that is not the subject of an application is unfair or unreasonable.

208B   Additional matters to be considered by costs assessors in assessing bills of costs

In assessing what is a fair and reasonable amount of costs, a costs assessor may have regard to any or all of the following matters:
(a)  whether the barrister or solicitor complied with any relevant regulation, barristers rule, solicitors rule or joint rule,
(b)  whether the barrister or solicitor disclosed the basis of the costs or an estimate of the costs under Division 2 and any disclosures made,
(c)  any relevant advertisement as to the barrister’s or solicitor’s costs or skills,
(d)  any relevant costs agreement (subject to section 208C),
(e)  the skill, labour and responsibility displayed on the part of the barrister or solicitor responsible for the matter,
(f)  the instructions and whether the work done was within the scope of the instructions,
(g)  the complexity, novelty or difficulty of the matter,
(h)  the quality of the work done,
(i)  the place where and circumstances in which the legal services were provided,
(j)  the time within which the work was required to be done.

208C   Costs agreements not subject to assessment

(1)  A costs assessor is to decline to assess a bill of costs if:
(a)  the disputed costs are subject to a costs agreement that complies with Division 3, and
(b)  the costs agreement specifies the amount of the costs or the dispute relates only to the rate specified in the agreement for calculating the costs.
(2)  If the dispute relates to any other matter, costs are to be assessed on the basis of that specified rate despite section 208A. The costs assessor is bound by a provision for the payment of a premium that is not determined to be unjust under section 208D.
(3)  This section does not apply to any provision of a costs agreement that the costs assessor determines to be unjust under section 208D.
(4)  This section does not apply to a costs agreement applicable to the costs of legal services if a barrister or solicitor failed to make a disclosure in accordance with Division 2 of the matters required to be disclosed by section 175 or 176 in relation to those costs.

208D   Unjust costs agreements

(1)  A costs assessor may determine whether a term of a particular costs agreement entered into by a barrister or solicitor and a client is unjust in the circumstances relating to it at the time it was made.
(2)  For that purpose, the costs assessor is to have regard to the public interest and to all the circumstances of the case and may have regard to:
(a)  the consequences of compliance, or non-compliance, with all or any of the provisions of the agreement, and
(b)  the relative bargaining power of the parties, and
(c)  whether or not, at the time the agreement was made its provisions were the subject of negotiation, and
(d)  whether or not it was reasonably practicable for the applicant to negotiate for the alteration of, or to reject, any of the provisions of the agreement, and
(e)  whether or not any of the provisions of the agreement impose conditions that are unreasonably difficult to comply with, or not reasonably necessary for the protection of the legitimate interests of a party to the agreement, and
(f)  whether or not any party to the agreement was reasonably able to protect his or her interests because of his or her age or physical or mental condition, and
(g)  the relative economic circumstances, educational background and literacy of the parties to the agreement and of any person who represented any of the parties to the agreement, and
(h)  the form of the agreement and the intelligibility of the language in which it is expressed, and
(i)  the extent to which the provisions of the agreement and their legal and practical effect were accurately explained to the applicant and whether or not the applicant understood those provisions and their effect, and
(j)  whether the barrister or solicitor or any other person exerted or used unfair pressure, undue influence or unfair tactics on the applicant and, if so, the nature and extent of that unfair pressure, undue influence or unfair tactics.
(3)  For the purposes of this section, a person is taken to have represented a person if the person represented the other person, or assisted the other person to a significant degree, in the negotiations process up to, or at, the time the agreement was made.
(4)  In determining whether a provision of the agreement is unjust, the costs assessor is not to have regard to any injustice arising from circumstances that were not reasonably foreseeable when the agreement was made.

208E   Interest on amount outstanding

(1)  A costs assessor may, in an assessment, determine that interest is not payable on the amount of costs assessed or on any part of that amount and determine the rate of interest (not exceeding the rate referred to in section 190 (4)).
(2)  This section applies despite any costs agreement or section 190.
(3)  This section does not authorise the giving of interest on interest.
(4)  This section does not apply to or in respect of the assessment of costs referred to in Subdivision 3 (party/party costs).

Subdivision 3 Assessment of party/party costs

208F   Assessment of costs—costs ordered by court or tribunal

(1)  When dealing with an application relating to costs payable as a result of an order made by a court or a tribunal, the costs assessor must consider:
(a)  whether or not it was reasonable to carry out the work to which the costs relate, and
(b)  what is a fair and reasonable amount of costs for the work concerned.
(1A)  An assessment must be made in accordance with the operation of the rules of the relevant court or tribunal that made the order for costs.
(2)  A costs assessor is to determine the costs payable as a result of the order by assessing the amount of the costs that, in his or her opinion, is a fair and reasonable amount.
(3)  If a court or a tribunal has ordered that costs are to be assessed on an indemnity basis, the costs assessor must assess the costs on that basis, having regard to any relevant rules of the court or tribunal.
(4)  The costs assessed are to include the costs of the assessment (including the costs of the parties to the assessment, and the costs assessor). The costs assessor may determine by whom and to what extent the costs of the assessment are to be paid.
(5)  The costs of the costs assessor are to be paid to the Manager, Costs Assessment.
Note. Section 208JA provides for the recovery of the costs of a costs assessor.

208G   Additional matters to be considered by costs assessors in assessing costs ordered by court or tribunal

In assessing what is a fair and reasonable amount of costs, a costs assessor may have regard to any or all of the following matters:
(a)  the skill, labour and responsibility displayed on the part of the barrister or solicitor responsible for the matter,
(b)  the complexity, novelty or difficulty of the matter,
(c)  the quality of the work done and whether the level of expertise was appropriate to the nature of the work done,
(d)  the place where and circumstances in which the legal services were provided,
(e)  the time within which the work was required to be done,
(f)  the outcome of the matter.

208H   Effect of costs agreements in assessments of party/party costs

(1)  A costs assessor may obtain a copy of, and may have regard to, a costs agreement.
(2)  However, a costs assessor must not apply the terms of a costs agreement for the purposes of determining appropriate fair and reasonable costs when assessing costs payable as a result of an order by a court or tribunal.

208I   Court or tribunal may specify amount etc

This Division does not limit any power of a court or a tribunal to determine in any particular case the amount of costs payable or that the amount of the costs is to be determined on an indemnity basis.

Subdivision 4 Enforcement of assessment

208J   Certificate as to determination

(1)  On making a determination, a costs assessor is to issue to each party a certificate that sets out the determination.
(1A)  A costs assessor may issue more than one certificate in relation to an application for costs assessment. Such certificates may be issued at the same time or at different stages of the assessment process.
(2)  In the case of an amount of costs that has been paid, the amount (if any) by which the amount paid exceeds the amount specified in any such certificate may be recovered as a debt in a court of competent jurisdiction.
(3)  In the case of an amount of costs that has not been paid, the certificate is, on the filing of the certificate in the office or registry of a court having jurisdiction to order the payment of that amount of money, and with no further action, taken to be a judgment of that court for the amount of unpaid costs, and the rate of any interest payable in respect of that amount of costs is the rate of interest in the court in which the certificate is filed.
(4)  For this purpose, the amount of unpaid costs does not include the costs incurred by a costs assessor in the course of a costs assessment.
(4A)  To avoid any doubt, this section applies to or in respect of both the assessment of costs referred to in Subdivision 2 of this Division (practitioner/client costs) and the assessment of costs referred to in Subdivision 3 of this Division (party/party costs).
(5)  If the costs of the costs assessor are payable by a party to the assessment (as referred to in section 208JA), the costs assessor may refuse to issue a certificate relating to his or her determination under this section until the costs of the costs assessor have been paid.
(6)  Subsection (5) does not apply:
(a)  in respect of a certificate issued before the completion of the assessment process under subsection (2), or
(b)  in such circumstances as may be prescribed by the regulations.

208JAA   Reasons for determination

(1)  A costs assessor must ensure that a certificate issued under section 208J that sets out his or her determination is accompanied by:
(a)  a statement of the reasons for the costs assessor’s determination, and
(b)  such supplementary information as may be required by the regulations.
(2)  The statement of reasons must be given in accordance with the regulations.

208JA   Recovery of costs of costs assessment

(1)  This section applies when the costs of a costs assessor or Manager, Costs Assessment are payable by a party to the assessment (under section 182 (3), 208A (4) or 208F (4)).
(2)  On making a determination, a costs assessor may issue to each party a certificate that sets out the costs incurred by the costs assessor or Manager, Costs Assessment in the course of the costs assessment.
(3)  If the application for costs assessment has been dealt with by more than one costs assessor, the certificate can set out the costs of any other costs assessor.
(4)  The certificate is, on the filing of the certificate in the office or registry of a court having jurisdiction to order the payment of that amount of money, and with no further action, taken to be a judgment of that court for the amount of unpaid costs.
(5)  The Manager, Costs Assessment may take action to recover the costs of a costs assessor or Manager, Costs Assessment.

208JB   Correction of error in determination

(1)  At any time after making a determination, a costs assessor may, for the purpose of correcting an inadvertent error in the determination:
(a)  make a new determination in substitution for the previous determination, and
(b)  issue a certificate under section 208J that sets out the new determination.
(2)  Such a certificate replaces any certificate setting out the previous determination of the costs assessor that has already been issued by the costs assessor, and, on the filing of the replacement certificate in the office or registry of a court having jurisdiction to order the payment of the amount of the new determination, any judgment that is taken to have been effected by the filing of that previously issued certificate is varied accordingly.

208K   Determination to be final

A costs assessor’s determination of an application is binding on all parties to the application and no appeal or other review lies in respect of the determination, except as provided by this Division.

Subdivision 4A Review of determination by panel

208KA   Application for review of determination

(1)  A party to an assessment who is dissatisfied with a determination of a costs assessor may, within 28 days after the issue of the certificate under section 208J that sets out the determination of the costs assessor or within such further time as the Manager, Costs Assessment may allow, apply to the Manager, Costs Assessment for a review of the determination.
(1A)  Further time is to be allowed as referred to in subsection (1) only if the Manager, Costs Assessment is satisfied that the determination of the costs assessor was received more than 7 days after the relevant certificate under section 208J was issued and that it would be impracticable for an application to be made under this section unless further time were allowed.
(2)  The application must:
(a)  be made in accordance with the regulations, and
(b)  be accompanied by the fee prescribed by the regulations.
(3)  The Manager, Costs Assessment may waive or postpone payment of the fee either wholly or in part if satisfied that the applicant is in such circumstances that payment of the fee would result in serious hardship to the applicant or his or her dependants.
(4)  The Manager, Costs Assessment may refund the fee paid under this section either wholly or in part if satisfied that it is appropriate because the application is not proceeded with.
(5)  A party who applies for a review under this Subdivision must ensure that notice of the application is given to the other parties to the assessment not less than 7 days before the application is made or as prescribed by the regulations.

208KB   Referral of application to panel

(1)  If an application for a review under this Subdivision is duly made, the Manager, Costs Assessment is to refer the application to a panel.
(2)  The panel is to be constituted by 2 costs assessors.

208KC   General functions of panel in relation to review application

(1)  A panel constituted under this Subdivision may review the determination of the costs assessor and may:
(a)  affirm the costs assessor’s determination, or
(b)  set aside the costs assessor’s determination and substitute such determination in relation to the costs assessment as, in their opinion, should have been made by the costs assessor who made the determination that is the subject of the review.
(2)  For the purposes of subsection (1), the panel has, in relation to the application for review, all the functions of a costs assessor under this Part and is to determine the application, subject to this Subdivision and the regulations, in the manner that a costs assessor would be required to determine an application for costs assessment.
(3)  However, the review is to be conducted on the evidence that was received by the costs assessor who made the determination that is the subject of the review and, unless the panel determines otherwise, the panel is not:
(a)  to receive submissions from the parties to the assessment, or
(b)  to receive any fresh evidence or evidence in addition to or in substitution for the evidence received by the costs assessor.
(4)  If the costs assessors who constitute the panel are unable to agree on a determination in relation to an application, the panel is to affirm the determination of the costs assessor who made the determination that is the subject of the review.

208KD   Relevant documents to be produced to panel

(1)  A panel constituted under this Subdivision may, by notice in writing, require a costs assessor, a barrister or solicitor or any other person (such as an applicant) to produce to the panel any document in his or her possession relating to an assessment of costs by a costs assessor.
(2)  If a person fails, without reasonable excuse, to comply with a notice under this section, the panel may decline to deal with an application for review or may continue to deal with it on the basis of the information provided.
(3)  A costs assessor is to retain in his or her possession any document relating to a costs assessment (other than a document that is returned to a party to the assessment) until:
(a)  the period of 2 months has elapsed since the issue of a certificate under section 208J setting out the determination of the costs assessor, or
(b)  the costs assessor receives a notice under subsection (1) in relation to the document,
whichever happens first.
(4)  A barrister or solicitor is to retain in his or her possession any document relating to a costs assessment that is returned to the barrister or solicitor by the costs assessor until:
(a)  the period of 2 months has elapsed since the issue of a certificate under section 208J setting out the determination of the costs assessor, or
(b)  the barrister or solicitor receives a notice under subsection (1) in relation to the document,
whichever happens first.
(5)  A barrister or solicitor who fails, without reasonable excuse, to comply with this section or a notice under this section is guilty of professional misconduct.

208KE   Effect of review on costs assessor’s determination

(1)  If the Manager, Costs Assessment refers a determination of a costs assessor to a panel for review under this Subdivision, the operation of that determination is suspended.
(2)  The panel may end such a suspension:
(a)  if it affirms the determination of the costs assessor, or
(b)  in such other circumstances as it considers appropriate.

208KF   Certificate as to determination of panel

(1)  On making a determination in relation to an application for review of a costs assessment under this Subdivision, a panel is to issue to each party concerned a certificate that sets out the determination.
(2)  If the panel sets aside the determination of the costs assessor, the following provisions apply:
(a)  if the amount of costs has already been paid, the amount (if any) by which the amount paid exceeds the amount specified in the determination of the panel may be recovered in a court of competent jurisdiction,
(b)  if the amount of costs has not been paid, the certificate is, on filing of the certificate in the office or registry of a court having competent jurisdiction to order the payment of that amount of money, and with no further action, taken to be a judgment of that court for the amount of unpaid costs,
(c)  if the costs assessor issued a certificate in relation to his or her determination under section 208J:
(i)  the certificate ceases to have effect, and
(ii)  any judgment that is taken to have been effected in relation to that certificate also ceases to have effect, and
(iii)  any enforcement action taken in respect of that judgment is to be reversed.
(3)  If the panel sets aside the costs assessor’s determination, any amount substituted by the panel may include an allowance for any fee paid or payable for the application for review by the applicant or for any amount paid or payable for the costs of the costs assessor by a party to the assessment.
(4)  If the costs of the panel are payable by a person (as required by section 208KH), the panel may refuse to issue a certificate relating to its determination under this section until those costs have been paid.
(5)  Subsection (4) does not apply in such circumstances as may be prescribed by the regulations.

208KG   Reasons for determination

(1)  The panel must ensure that a certificate issued under section 208KF that sets out the determination of the panel is accompanied by:
(a)  a statement of the reasons for the panel’s determination, and
(b)  such supplementary information, in relation to the determination, as may be required by the regulations.
(2)  The statement of reasons must be given in accordance with the regulations.

208KH   Recovery of costs of review

(1)  A panel that conducts a review of a costs assessor’s determination under this Subdivision is to determine the costs of the review and may, subject to this section, determine by whom and to what extent those costs are to be paid.
(2)  If the panel affirms the determination of the costs assessor, the panel is to require the party who applied for the review to pay the costs of the review.
(3)  If the panel sets aside the determination of the costs assessor, and makes a determination in favour of the party who applied for review, the panel is to require the party who applied for the review to pay the costs of the review if the determination of the panel increases or decreases the total costs payable (as assessed by the costs assessor) by an amount that is less than 15 per cent (or such other percentage as may be prescribed by the regulations) of the total costs payable as assessed by the costs assessor.
(4)  Subject to subsections (2) and (3), the panel may require any party to the assessment that is reviewed to pay the costs of the review or may determine that the costs of the review are to be shared between the parties in any manner that the panel considers appropriate.
(5)  The panel may issue to each party a certificate that sets out the panel’s determination under this section.
(6)  The certificate is, on filing of the certificate in the office or registry of a court having jurisdiction to order the payment of that amount of money, and with no further action, taken to be a judgment of that court for the amount of unpaid costs of the review.
(7)  The costs of the review are to be paid to the Manager, Costs Assessment.
(8)  The Manager, Costs Assessment may take action to recover the costs of a review.
(9)  Regulations may be made with respect to determinations of a panel under this section.
(10)  In this section:

costs of a review means the costs incurred by the panel or the Manager, Costs Assessment in the course of a review under this Subdivision, and includes the costs related to the remuneration of the costs assessors who constitute the panel.

208KHA   Correction of error in determination

(1)  At any time after making a determination, a panel that conducts a review may, for the purpose of correcting an inadvertent error in the determination:
(a)  make a new determination in substitution for the previous determination, and
(b)  issue a certificate under section 208KF that sets out the new determination of the panel.
(2)  Such a certificate replaces any certificate setting out the previous determination of the panel that has already been issued by the panel, and, on the filing of the replacement certificate in the office or registry of a court having jurisdiction to order the payment of the amount of the new determination, any judgment that is taken to have been effected by the filing of that previously issued certificate is varied accordingly.

208KI   Appeal against determination

(1)  Subdivision 4B applies in relation to a decision or determination of a panel under this Subdivision as if references in Subdivision 4B to a costs assessor were references to the panel.
(2)  Subject to subsection (1), the panel’s determination of an application for review of a costs assessor’s determination is binding on all parties to the assessment that is the subject of a review and no appeal or other review lies in respect of the determination.

208KJ   Regulations

The Regulations may make provision for or with respect to reviews under this Subdivision, including the constitution and membership of a panel and the procedure for conducting reviews.

208KL   Miscellaneous

For avoidance of doubt, sections 208SA and 208T extend to a costs assessor in respect of the exercise of his or her functions as a member of a panel constituted under this Subdivision.

Subdivision 4B Appeals

208L   Appeal against decision of costs assessor as to matter of law

(1)  A party to an application who is dissatisfied with a decision of a costs assessor as to a matter of law arising in the proceedings to determine the application may, in accordance with the rules of the Supreme Court, appeal to the Court against the decision.
(2)  After deciding the question the subject of the appeal, the Supreme Court may, unless it affirms the costs assessor’s decision:
(a)  make such determination in relation to the application as, in its opinion, should have been made by the costs assessor, or
(b)  remit its decision on the question to the costs assessor and order the costs assessor to re-determine the application.
(3)  On a re-determination of an application, fresh evidence, or evidence in addition to or in substitution for the evidence received at the original proceedings, may be given.

208M   Appeal against decision of costs assessor by leave

(1)  A party to an application relating to a bill of costs may, in accordance with the rules of the Supreme Court, seek leave of the Court to appeal to the Court against the determination of the application made by a costs assessor.
(2)  A party to an application relating to costs payable as a result of an order made by a court or a tribunal may, in accordance with the rules of the court or tribunal, seek leave of the court or tribunal to appeal to the court or tribunal against the determination of the application made by a costs assessor.
(3)  The Supreme Court or court or tribunal may, in accordance with its rules, grant leave to appeal and may hear and determine the appeal.
(4)  An appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence received at the original proceedings, may be given.
(5)  After deciding the questions the subject of the appeal, the Supreme Court or court or tribunal may, unless it affirms the costs assessor’s decision, make such determination in relation to the application as, in its opinion, should have been made by the costs assessor.

208N   Effect of appeal on application

(1)  If a party to an application has appealed against a determination or decision of a costs assessor, either the costs assessor or the court or tribunal to which the appeal is made may suspend, until the appeal is determined, the operation of the determination or decision.
(2)  The costs assessor or the court or tribunal may end a suspension made by the costs assessor. The court or tribunal may end a suspension made by the court or tribunal.

208NA   Assessor can be a party to appeal

A costs assessor can be made a party to any appeal against a determination or decision of the costs assessor only by the Supreme Court.

208NB   Notices of appeal

A copy of every notice of appeal against a determination or decision of a costs assessor must be served on the Manager, Costs Assessment by the party making the appeal.

208NC   Court may refer unreviewed determination to review panel

(1)  If an appeal is made under section 208M against a determination of a costs assessor and the determination to which the appeal relates has not been reviewed by a panel in accordance with Subdivision 4A, the court or tribunal to which the appeal is made may refer the appeal to the Manager, Costs Assessment for a review by a panel under that Subdivision.
(2)  For the purposes of Subdivision 4A, the referral of an appeal by a court or tribunal under subsection (1) to the Manager, Costs Assessment is taken to be a duly made application for a review under that Subdivision.

Subdivision 5 Miscellaneous

208O   Costs fixed by regulations

(1)  An assessment of costs fixed by a regulation under section 196 (1) (a), (a2), (b), (b1) or (b2) or 197 is to be made in accordance with that regulation.
(1A)  An assessment of costs fixed by a regulation under section 149 of the Motor Accidents Compensation Act 1999 is to be made in accordance with that regulation (despite anything to the contrary in a regulation under section 196).
(2)  An assessment of costs fixed by a regulation under section 196 (1) (c) is to be made having regard to that regulation.

208P   Liability of barrister or solicitor for costs

(1)  A costs assessor may act as set out in subsection (2) if it appears to the costs assessor that costs have been incurred improperly or without reasonable cause, or have been wasted by undue delay or by any other misconduct or default.
(2)  The costs assessor may in the determination:
(a)  disallow the costs as between the barrister or solicitor and the barrister’s or solicitor’s client, and
(b)  direct the barrister or solicitor to repay to the client costs which the client has been ordered by a court or a tribunal to pay to any other party, and
(c)  direct the barrister or solicitor to indemnify any party other than the client against costs payable by the party indemnified.
(3)  Before taking action under this section, the costs assessor must give notice of the proposed action to the barrister or solicitor and the client and give them a reasonable opportunity to make written submissions in relation to the proposed action.
(4)  The costs assessor must give due consideration to any submissions so made.

208Q   Referral of misconduct to Commissioner

(1)  If a costs assessor considers that any conduct of a barrister or solicitor involves the deliberate charging of grossly excessive amounts of costs or deliberate misrepresentations as to costs, the costs assessor must refer the matter to the Commissioner.
(2)  For the purposes of this Act, the deliberate charging of grossly excessive amounts of costs and deliberate misrepresentations as to costs are each declared to be professional misconduct.
(2A)  A costs assessor may refer any failure by a legal practitioner to comply with a notice issued under section 207, or with any other provision of this Part, to the Commissioner.
(3)  Nothing in this section limits the matters which a costs assessor may refer to the Commissioner.

208R   Rules of procedure for applications

(1)  There is to be a costs assessors’ rules committee consisting of those costs assessors appointed to the committee by the Chief Justice of New South Wales.
(2)  The committee is to regulate its own proceedings for the calling of meetings and the conduct of its business.
(3)  The committee may make rules, not inconsistent with this Part, governing the practice and procedure of the assessment of costs, including matters relating to the appointment of costs assessors to particular matters and the interests of costs assessors in particular matters.
(4)  The committee has any other functions conferred on the committee by or under this or any other Act.
(4A)  Any amount payable from the Public Purpose Fund for the purpose of meeting the costs of the committee is to be paid, in accordance with section 69G, to the Treasurer for credit of the Consolidated Fund.
(5)  Part 6 of the Interpretation Act 1987 applies to a rule made under this section in the same way as it applies to a statutory rule within the meaning of that Act.
Note. Part 6 of the Interpretation Act 1987 contains provisions relating to the publication and Parliamentary disallowance of statutory rules and other standard provisions relating to the making, amendment and repeal of statutory rules.

208S   Costs assessors

(1)  The Chief Justice of New South Wales may appoint persons to be costs assessors under this Act.
(2)  A costs assessor has the functions that are conferred on the costs assessor by or under this or any other Act.
(3)  Schedule 7 has effect with respect to costs assessors.
(4)  A costs assessor is not an officer of the Court when acting as a costs assessor.
(5)  Proceedings relating to anything done or omitted to be done by the Chief Justice of New South Wales in respect of the appointment or removal of a costs assessor (including terms of appointment and any other incidental matters) may not be instituted against the Chief Justice of New South Wales but may be instituted against “The Manager, Costs Assessment” as nominal defendant.

208SA   Protection from liability

A matter or thing done or omitted to be done by the Chief Justice of New South Wales, the Manager, Costs Assessment or a costs assessor does not, if the matter or thing was done or omitted to be done in good faith for the purpose of the administration of this Part, subject the Chief Justice of New South Wales, the Manager, Costs Assessment or any costs assessor personally to any action, liability, claim or demand.

208T   Confidentiality

A costs assessor must not disclose any information obtained in connection with the exercise of the costs assessor’s functions unless the disclosure is made:
(a)  in connection with the exercise of those functions or the administration or execution of this Act, or
(b)  for the purposes of any legal proceedings arising out of this Act or of any report of any such proceedings, or
(c)  in the case of information relating to a barrister or solicitor or other person—with the consent of the barrister or solicitor or person, or
(d)  with other lawful excuse.

Maximum penalty: 20 penalty units.

208U   Costs of administering Part

(1)  All costs related to the administration of this Part (other than the costs referred to in section 208R (4A)) are to be paid out of money to be provided from a working account established for the Attorney General’s Department by the Treasurer under section 13A of the Public Finance and Audit Act 1983 for the purposes of this Part.
(2)  The following amounts received by the Manager, Costs Assessment are to be paid to the credit of that working account:
(a)  an application fee for an assessment,
(b)  an application fee for a review of an assessment under Subdivision 4A,
(c)  a payment for the costs of a costs assessor,
(d)  a payment for the costs of a review under Subdivision 4A.

208V   Application of Division

This Division does not apply to an amount of interest ordered on a judgment debt (being an order for the payment of costs) under section 101 (3) of the Civil Procedure Act 2005.

209   (Repealed)

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