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Contents (2017 - 10)
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Motor Accident Injuries Act 2017 No 10
Current version for 1 February 2019 to date (accessed 19 November 2019 at 21:14)
Part 8
Part 8 Costs and fees
8.1   Definitions
(cf s 147 MACA)
(1)  In this Part:
court includes a court arbitrator or arbitrators.
medical report includes any medical certificate or opinion.
(2)  Except as provided by this Part, expressions used in this Part have the same meaning as they have when used in relation to legal costs in the legal profession legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014).
Note.
 Under the Legal Profession Uniform Law (NSW), the expression legal costs includes amounts payable to a law practice for legal services as well as other items that may be charged (such as disbursements) but does not include interest.
8.2   Application to legal costs
(cf s 148 MACA)
This Part applies to and in respect of legal costs payable on a party and party basis, on a solicitor and client basis or on any other basis, unless this Part otherwise provides.
8.3   Regulations fixing maximum costs etc recoverable by Australian legal practitioners
(cf s 149 MACA)
(1)  The regulations may make provision for or with respect to the following:
(a)  fixing maximum costs for legal services provided to a claimant or to an insurer in any motor accidents matter,
(b)  fixing maximum costs for matters that are not legal services but are related to proceedings in any motor accidents matter (for example, expenses for investigations, for witnesses or for medical reports),
(c)  declaring that no costs are payable for any such legal services or other matters of a kind specified in the regulations.
(2)  Without limiting subsection (1), the regulations may fix maximum costs for legal services provided to a claimant by reference to the amount recovered by the claimant.
(3)  An Australian legal practitioner is not entitled to be paid or recover for a legal service or other matter an amount that exceeds any maximum costs fixed for the service or matter by the regulations under this section. An Australian legal practitioner is not entitled to be paid or recover any amount for a legal service or other matter of a particular kind if the regulations declare that no costs are payable for a service or other matter of that kind.
(4)  An Australian legal practitioner is not entitled to be paid or recover legal costs for any legal services provided to a party to a claim for statutory benefits (whether the claimant or the insurer) in connection with the claim unless payment of those legal costs is permitted by the regulations or the Dispute Resolution Service.
(5)  This section does not entitle an Australian legal practitioner to recover costs for a legal service or matter that a court or costs assessor determines were unreasonably incurred.
(6)  This section and any regulations under this section prevail to the extent of any inconsistency with the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014). An assessment under that legislation of any costs in respect of which provision is made by a regulation under this section is to be made so as to give effect to that regulation.
(7)  The Minister is to consult the Councils of the Bar Association and the Law Society about any proposed regulation under this section. The validity of a regulation is not affected by a contravention of this subsection.
8.4   Maximum fees recoverable by health practitioners for medico-legal services
(cf s 150 MACA)
(1)  The regulations may make provision for or with respect to fixing maximum fees for the provision by health practitioners of the following services:
(a)  provision of any medical report for use in court proceedings in connection with a claim,
(b)  provision of any medical report for use in the assessment of a claim under Division 7.6, in a medical assessment by a medical assessor under Division 7.5 or in a merit review under Division 7.4,
(c)  appearance as a witness in court proceedings, or in Dispute Resolution Service proceedings, in connection with a claim.
(2)  A health practitioner is not entitled to be paid or recover any fee for providing a service that exceeds any maximum fee fixed under this section for the provision of the service.
(3)  In determining any matter to be prescribed under this section, the Minister is to consult with the Australian Medical Association and other appropriate bodies. The validity of a regulation is not affected by a contravention of this subsection.
8.5   Costs where court proceedings and no claims assessment
(cf s 152 MACA)
(1)  This section applies where a claim is determined by court proceedings (including court arbitration) and an assessment has not been made under Division 7.6 of the amount of damages for liability under the claim.
(2)  The rules of court concerning offers of compromise apply to any such offer in those proceedings.
(3)  The costs payable on a party and party basis are, subject to the rules of court, to follow the event, and are to include the court fees prescribed under section 8.7.
8.6   Other matters relating to costs
(cf s 153 MACA)
(1)  Any order of a court as to costs is to be made consistently with the relevant provisions of or made under this Act. However, the court may make an order that departs from those provisions in an exceptional case and for the avoidance of substantial injustice.
(2)  Subject to the regulations and rules of court where relevant, if costs are awarded to a claimant by reference to the amount recovered by the claimant, that amount is to be taken to be the amount recovered as qualified, or after making any deduction or reduction, in accordance with or by reference to Part 4.
(3)  Regulations under this Part may fix maximum costs and fees by reference to costs and fees fixed by regulations under the Legal Profession Uniform Law Application Act 2014.
(4)  The regulations may make provision for or with respect to the assessment or taxation of costs and any associated matters, and may do so by reference to the provisions of any Act.
8.7   Court fees
(cf s 154 MACA)
(1)  In this section:
court fees means court fees payable in respect of a claim determined by a court which was not the subject of an assessment of the amount of damages under Division 7.6.
(2)  The regulations may make provision for or with respect to court fees payable under this Part.
(3)  In particular, the regulations may specify any such fee or the method by which the fee is to be calculated, and may specify by whom and in what circumstances the fee is payable.
(4)  Court fees are payable into the Consolidated Fund.
8.8   Claims assessment fees
(cf s 155 MACA)
(1)  In this section:
claims assessment fees means fees payable in connection with an assessment of a claim under Division 7.6.
(2)  The regulations may make provision for or with respect to claims assessment fees payable under this Part.
(3)  In particular, the regulations may specify any such fee or the method by which the fee is to be calculated, and may specify by whom and in what circumstances the fee is payable.
(4)  Claims assessment fees are payable into the Motor Accidents Operational Fund under Division 10.4.
8.9   Maximum fees payable by insurers for treatment and care not provided at hospitals or provided at private hospitals
(cf s 56 MACA)
(1)  The regulations may make provision for or with respect to fixing the maximum amount for which an insurer is liable in respect of any claim for:
(a)  the fee payable for any treatment and care of an injured person to the provider of that treatment and care (other than treatment and care that is provided to in-patients or out-patients at a hospital and for which any payment is required to be made to the hospital and not to the provider of that treatment and care), or
(b)  the fee payable for any treatment and care of an injured person to a private hospital for treatment and care at the private hospital.
(2)  Any such fees may (but need not) be fixed by reference to fees recommended by the Australian Medical Association or other professional association or by reference to any schedule of fees.
(3)  A payment by an insurer of statutory benefits for treatment and care, or assessed by the Dispute Resolution Service, is to be made consistently with any regulations under this section.
(4)  This section does not prevent the inclusion in Motor Accident Guidelines of provision as to the appropriate allowance for fees to which this section applies and which are not fixed by regulations under this section.
(5)  This section does not apply in respect of any treatment and care needs of a person who is a participant in the Scheme under the Motor Accidents (Lifetime Care and Support) Act 2006, or any excluded treatment and care needs, that relate to the motor accident injury in respect of which the person is a participant in the Scheme and that arise during the period in which the person is a participant in the Scheme.
8.10   Recovery of costs and expenses in relation to claims for statutory benefits
(1)  A claimant for statutory benefits is (subject to this section) entitled to recover from the insurer against whom the claim is made the reasonable and necessary legal costs, and other costs and expenses, incurred by the claimant in connection with the claim. Other costs and expenses include the cost of medical and other tests and reports.
(2)  The regulations may make provision for or with respect to fixing the maximum costs and expenses recoverable by a claimant under this section (including any matters for which no costs and expenses are recoverable from the insurer).
(3)  A claimant for statutory benefits is only entitled to recover from the insurer against whom the claim is made reasonable and necessary legal costs incurred by the claimant if payment of those costs is permitted by the regulations or the Dispute Resolution Service.
(4)  The Dispute Resolution Service can permit payment of legal costs incurred by a claimant but only if satisfied that:
(a)  the claimant is under a legal disability, or
(b)  exceptional circumstances exist that justify payment of legal costs incurred by the claimant.
(5)  An insurer is not entitled to recover from a claimant for statutory benefits any legal costs, or other costs and expenses, of the insurer in relation to the claim.
8.11   Exclusion of matters from this Part
(cf s 156 MACA)
The regulations may make provision for or with respect to excluding any class of matters from any or all of the provisions of this Part.