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Contents (2011 - 37)
Workers Compensation Regulation 2010
Repealed version for 30 June 2016 to 31 August 2016 (accessed 20 November 2017 at 13:07)
Part 17 Division 4
Division 4 Assessment of costs
Subdivision 1 Preliminary
110   Definitions
In this Division:
agent bill of costs means a bill of costs for providing agent services within the meaning of section 337 of the 1998 Act.
bill of costs means a legal bill of costs or an agent bill of costs.
client of a legal practitioner or agent means a person to whom the practitioner or agent has provided legal services or agent services in respect of any workers compensation matter or work injury damages matter.
legal bill of costs means a bill of costs for providing legal services within the meaning of Part 3.2 of the Legal Profession Act 2004.
111   Application by client for assessment of practitioner/client or agent/client costs
(1)  A client who is given a bill of costs may apply to the Registrar for an assessment of the whole of, or any part of, so much of those costs as are payable on a practitioner and client basis or an agent and client basis.
(2)  An application relating to a bill of costs may be made even if the costs have been wholly or partly paid.
(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 legal practitioner or agent is taken to be the bill of costs.
Note.
 Section 343 (1) of the 1998 Act provides that the legal representative or agent of a person in respect of a claim for compensation made or to be made by the person is not entitled to recover from the person any costs in respect of the claim unless those costs are awarded by the Commission.
112   Application by instructing practitioner or agent for assessment of practitioner/client or agent/client costs
(1)  A legal practitioner or agent who:
(a)  retains another legal practitioner or agent to act on behalf of the client, and
(b)  is given a bill of costs in accordance with this Part by the other legal practitioner or agent,
may apply to the Registrar for an assessment of the whole, or any part of, so much of those costs as are payable on a practitioner and client basis or an agent and client basis.
(2)  An application may not be made if there is a costs agreement between the client and the other legal practitioner or agent.
(3)  An application is to be made within 30 days after the bill of costs is given and may be made even if the costs have been wholly or partly paid.
113   Application by billing practitioner or agent for assessment of practitioner/client or agent/client costs
(1)  A legal practitioner or agent who has given a bill of costs may apply to the Registrar for an assessment of the whole of, or any part of, so much of those costs as are payable on a practitioner and client basis or an agent and client basis.
(2)  An application may not be made unless:
(a)  the bill of costs includes the following particulars:
(i)  a description of the legal services or agent services provided,
(ii)  if relevant, an identification of each general resolution type referred to in Table 2 in Part 2 of Schedule 6 by reference to the item number and column number in Table 2 of the general resolution type that was attained,
(iii)  if relevant, an identification of each special resolution type referred to in Table 3 in Part 2 of Schedule 6 by reference to the item number and column number in Table 3 of the special resolution type that was attained,
(iv)  if relevant, an identification of the phase of each general resolution type referred to in Table 1 in Part 2 of Schedule 6 by reference to the item number and column number in Table 1 of the general resolution type that was attained,
(v)  if relevant, an identification of each additional legal service or other factor referred to in Table 4 in Part 2 of Schedule 6 by reference to the item number and (where relevant) column number in Table 4 of the legal service or factor,
(vi)  an identification of each disbursement incurred by reference to a paragraph number in clause 96 or an item number in Part 3 of Schedule 6,
(vii)  an identification of each activity, event or stage specified in Schedule 7, by reference to the item number of the activity, event or stage, that was carried out,
(viii)  the amount sought, and
(b)  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.
114   Application for assessment of party/party costs—compensation matters
(1)  A person who is entitled to receive or who has received costs, in or in connection with a workers compensation matter, as a result of:
(a)  an order for the payment of an unspecified amount of costs made by a court or the Commission, or
(b)  an agreement, evidenced in writing by the party liable to pay the costs, for the payment of an unspecified amount of costs,
may apply to the Registrar for an assessment of the whole of, or any part of, those costs.
(2)  A person who has paid or is liable to pay costs, in or in connection with a workers compensation matter, as a result of an order or agreement referred to in subclause (1) may apply to the Registrar for an assessment of the whole of, or any part of, those costs after the period of 60 days after the making of the order or agreement.
(3)  A court or the Commission may direct the Registrar to assess costs payable as a result of an order made by the court or the Commission. Any such direction is taken to be an application for assessment duly made under this Division.
115   Application for assessment of party/party costs—work injury damages matters
(1)  A person who has paid or is liable to pay, or who is entitled to receive or who has received, costs, in or in connection with a work injury damages matter, as a result of an order for the payment of an unspecified amount of costs made by a court or the Commission may apply to the Registrar for an assessment of the whole of, or any part of, those costs.
(2)  A court or the Commission may direct the Registrar to assess costs payable as a result of an order made by the court or the Commission. Any such direction is taken to be an application for assessment duly made under this Division.
116   How is an application to be made?
(1)  An application for assessment is to be made in the form approved by the Commission and is, subject to subclause (4), to be accompanied by the fee determined by the Commission from time to time.
(2)  The application must authorise the Registrar to have access to, and to inspect, all documents of the applicant that are held by the applicant, or by any legal practitioner or agent concerned, in respect of the matter to which the application relates.
(3)  The Registrar 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 Registrar may refund the fee paid under this clause either wholly or in part if satisfied that it is appropriate because the application is not proceeded with.
117   Persons to be notified of application
The applicant for assessment is to cause a copy of the application for assessment to be given to:
(a)  each other party and each legal practitioner, agent and other client involved, and
(b)  any other persons to whom the Registrar requires the applicant to give notice of the application,
within 7 days after the application is accepted by the Registrar for registration.
118   Registrar may require documents or further particulars
(1)  The Registrar may, by notice in writing, require a person (including the applicant, the legal practitioner or agent concerned, or any other legal practitioner, agent or client) to produce any relevant documents of or held by the person in respect of the matter.
(2)  The Registrar may, by any such notice, require further particulars to be furnished by the applicant, legal practitioner, agent, client or other person as to instructions given to, or work done by, the legal practitioner or agent or any other legal practitioner or agent in respect of the matter and as to the basis on which costs were ascertained.
(3)  The Registrar may require any such particulars to be verified by statutory declaration.
(4)  A notice under this clause 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 clause, the Registrar may decline to deal with the application or may continue to deal with the application on the basis of the information provided.
(6)  A legal practitioner who fails, without reasonable excuse, to comply with a notice under this clause is guilty of professional misconduct.
119   Consideration of applications
(1)  The Registrar must not determine an application for assessment unless the Registrar:
(a)  has given both the applicant and any legal practitioner, agent, client or other person concerned a reasonable opportunity to make written submissions to the Registrar in relation to the application, and
(b)  has given due consideration to any submissions so made.
(2)  In considering an application, the Registrar 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)  In the case of a legal practitioner, 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, the Registrar may determine any of the following:
(a)  whether or not disclosure has been made in accordance with Division 3 of Part 3.2 of the Legal Profession Act 2004 and whether or not it was reasonably practicable to disclose any matter required to be disclosed under that Division,
(b)  whether a costs agreement exists, and its terms.
120   Assessment to give effect to maximum costs, 1998 Act and orders and rules of the Commission or court
An assessment of costs is to be made in accordance with, and so as to give effect to, orders of the Commission or a court, the Rules of the Commission or rules of court, Part 8 of Chapter 7 of the 1998 Act, this Part, and Schedules 6 and 7.
Subdivision 2 Assessment of bills of costs between practitioner or agent and client
121   Assessment of bills generally
(1)  When considering an application relating to a bill of costs, the Registrar 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)  The Registrar is to determine the application by confirming the bill of costs or, if the Registrar 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 a legal practitioner is liable under section 369 (3) of the Legal Profession Act 2004 to pay the costs of the costs assessment (including the costs of the Registrar), the Registrar 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 Registrar are to be paid to the Commission.
(5)  The Registrar may not determine that any part of a bill of costs that is not the subject of an application is unfair or unreasonable.
Note.
 Clause 120 requires an assessment of costs to give effect to the maximum costs set out in Schedules 6 and 7, as well as to other matters.
Section 337 (3) and (4) of the 1998 Act provide that a legal practitioner or an agent is not entitled to be paid or recover for a legal service or agent service or other matter an amount that exceeds any maximum costs fixed for the service or matter by regulations under section 337.
Section 343 (1) of the 1998 Act provides that the legal representative or agent of a person in respect of a claim for compensation made or to be made by the person is not entitled to recover from the person any costs in respect of the claim unless those costs are awarded by the Commission.
122   Additional matters to be considered in assessing bills of costs
In assessing what is a fair and reasonable amount of costs, the Registrar may have regard to any or all of the following matters:
(a)  whether the legal practitioner or agent complied with any relevant regulation, barristers rule, solicitors rule or joint rule,
(b)  in the case of a legal practitioner—whether the legal practitioner disclosed the basis of the costs or an estimate of the costs under Division 3 of Part 3.2 of the Legal Profession Act 2004 and any disclosures made,
(c)  any relevant costs agreement (subject to clause 123),
(d)  the skill, labour and responsibility displayed on the part of the legal practitioner or agent responsible for the matter,
(e)  the instructions and whether the work done was within the scope of the instructions,
(f)  the complexity, novelty or difficulty of the matter,
(g)  the quality of the work done,
(h)  the place where and circumstances in which the legal services were provided,
(i)  the time within which the work was required to be done.
123   Costs agreements not subject to assessment
(1)  The Registrar is to decline to assess a bill of costs if:
(a)  the disputed costs are subject to a costs agreement that complies with Division 5 of Part 3.2 of the Legal Profession Act 2004, 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 clause 121. The Registrar is bound by a provision for the payment of a premium that is not determined to be unjust under clause 124.
(3)  This clause does not apply to any provision of a costs agreement that the Registrar determines to be unjust under clause 124.
(4)  This clause does not apply to a costs agreement applicable to the costs of legal services if a legal practitioner failed to make a disclosure in accordance with Division 3 of Part 3.2 of the Legal Profession Act 2004 of the matters required to be disclosed by section 309 of that Act in relation to those costs.
124   Unjust costs agreements
(1)  The Registrar may determine whether a term of a particular costs agreement entered into by a legal practitioner and a client is unjust in the circumstances relating to it at the time it was made.
(2)  For that purpose, the Registrar is to have regard to the public interest and to all the circumstances of the case and may have regard to the matters specified in section 328 of the Legal Profession Act 2004.
(3)  For the purposes of this clause, a person is taken to have represented another 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 Registrar is not to have regard to any injustice arising from circumstances that were not reasonably foreseeable when the agreement was made.
125   Interest on amount outstanding
(1)  The Registrar 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 321 (4) of the Legal Profession Act 2004).
(2)  This clause applies despite any costs agreement or section 321 of the Legal Profession Act 2004.
(3)  This clause does not authorise the giving of interest on interest.
(4)  This clause 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
126   Assessment of costs—costs ordered by court or Commission or subject of agreement
(1)  When dealing with an application relating to costs payable as a result of an order made by a court or the Commission or as a result of an agreement referred to in clause 114 (1) (b), the Registrar 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.
(2)  The Registrar is to determine the costs payable as a result of the order or agreement by assessing the amount of the costs that, in his or her opinion, is a fair and reasonable amount.
(3)  If a court or the Commission has ordered that costs are to be assessed on an indemnity basis, the Registrar must assess the costs on that basis, having regard to any relevant rules of the court or Commission.
(4)  The costs assessed are to include the costs of the assessment (including the costs of the parties to the assessment, and the Registrar). The Registrar may determine by whom and to what extent the costs of the assessment are to be paid.
(5)  The costs of the Registrar are to be paid to the Commission.
Note.
 Subdivision 2 of Division 3 of this Part limits the circumstances in which costs may be awarded on a party/party basis in relation to a claim for work injury damages.
Clause 120 requires an assessment of costs to give effect to the maximum costs set out in Schedules 6 and 7, as well as to other matters.
127   Additional matters to be considered by Registrar in assessing costs ordered by court or Commission
In assessing what is a fair and reasonable amount of costs, the Registrar may have regard to any or all of the following matters:
(a)  the skill, labour and responsibility displayed on the part of the legal practitioner or agent 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.
128   Effect of costs agreements in assessments of party/party costs
(1)  The Registrar may obtain a copy of, and may have regard to, a costs agreement.
(2)  However, the Registrar 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 the Commission.
129   Court or Commission may specify amount etc
This Division does not limit any power of a court or the Commission 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
130   Certificate as to determination
(1)  On making a determination, the Registrar is to issue to each party a certificate that sets out the determination.
(2)  The Registrar 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.
(3)  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.
(4)  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.
(5)  For this purpose, the amount of unpaid costs does not include the costs incurred by the Registrar in the course of a costs assessment.
(6)  To avoid any doubt, this clause 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).
(7)  If the costs of the Registrar are payable by a party to the assessment (as referred to in clause 132), the Registrar may refuse to issue a certificate relating to his or her determination under this clause until the costs of the Registrar have been paid.
(8)  Subclause (7) does not apply in respect of a certificate issued before the completion of the assessment process under subclause (2).
131   Reasons for determination
The Registrar must ensure that a certificate issued under clause 130 that sets out his or her determination is accompanied by:
(a)  a statement of the reasons for the Registrar’s determination, and
(b)  the amount of costs the Registrar determines is fair and reasonable, and
(c)  if the Registrar declines to assess a bill of costs under clause 123—the basis for doing so, and
(d)  if the Registrar determines that a term of a costs agreement is unjust—the basis for doing so, and
(e)  a statement of any determination under clause 125 that interest is not payable on the amount of costs assessed or, if payable, of the rate of interest payable.
132   Recovery of costs of costs assessment
(1)  This clause applies when the costs of the Registrar are payable by a party to the assessment (under section 369 (3) of the Legal Profession Act 2004 or clause 121 or 126 (5)).
(2)  On making a determination, the Registrar may issue to each party a certificate that sets out the costs incurred by the Registrar in the course of the costs assessment.
(3)  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.
(4)  The Registrar may take action to recover the costs of the Registrar.
133   Correction of error in determination
(1)  At any time after making a determination, the Registrar 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 clause 130 that sets out the new determination.
(2)  Such a certificate replaces any certificate setting out the previous determination of the Registrar that has already been issued by the Registrar, and any judgment that is taken to have been effected by the filing of that previously issued certificate is varied accordingly.
134   Determination to be final
The Registrar’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 5 Appeals
135   Appeal against decision of Registrar as to matter of law
(1)  A party to an application who is dissatisfied with a decision of the Registrar as to a matter of law arising in the proceedings to determine the application may, in accordance with the Rules of the Commission, appeal to the Commission constituted by a Presidential member against the decision.
(2)  The appeal is to be in the form approved by the Commission and be accompanied by the fee approved by the Commission from time to time.
(3)  After deciding the question the subject of the appeal, the Commission constituted by a Presidential member may, unless it affirms the Registrar’s decision:
(a)  make such determination in relation to the application as, in its opinion, should have been made by the Registrar, or
(b)  remit its decision on the question to the Registrar and order the Registrar to re-determine the application.
(4)  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.
(5)  Subclause (1) does not apply to any decision of the Registrar arising in proceedings on an application in respect of the assessment of costs under Schedule 6 as in force at any time before, on or after 1 November 2006, unless:
(a)  an appeal against the decision has been instituted in accordance with this clause before that date, or
(b)  the decision is made in or in connection with the reference of a dispute to the Registrar under clause 98 (3).
136   Effect of appeal on application
(1)  If a party to an application has appealed against a determination or decision of the Registrar, either the Registrar or the Commission constituted by a Presidential member may suspend, until the appeal is determined, the operation of the determination or decision.
(2)  The Registrar or the Commission may end a suspension made by the Registrar. The court or the Commission may end a suspension made by the court or Commission.
Subdivision 6 Miscellaneous
137   Liability of legal practitioner or agent for costs in certain cases
(1)  The Registrar may act as set out in subclause (2) if it appears to the Registrar 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 Registrar may in the determination:
(a)  disallow the costs as between the legal practitioner or agent and the practitioner’s or agent’s client, and
(b)  direct the legal practitioner or agent to repay to the client costs that the client has been ordered by a court or the Commission to pay to any other party, and
(c)  direct the legal practitioner or agent to indemnify any party other than the client against costs payable by the party indemnified.
(3)  Before taking action under this clause, the Registrar must give notice of the proposed action to the legal practitioner or agent and the client and give them a reasonable opportunity to make written submissions in relation to the proposed action.
(4)  The Registrar must give due consideration to any submissions so made.
138   Referral of misconduct to Legal Services Commissioner
(1)  If the Registrar considers that any conduct of a legal practitioner or agent involves the deliberate charging of grossly excessive amounts of costs or deliberate misrepresentations as to costs, the Registrar must refer the matter to the Legal Services Commissioner appointed under the Legal Profession Act 2004.
(2)  For the purposes of the Legal Profession Act 2004, the deliberate charging of grossly excessive amounts of costs and deliberate misrepresentations as to costs are each declared to be professional misconduct.
(3)  The Registrar may refer any failure by a legal practitioner to comply with a notice issued under clause 118, or with any other provision of this Division, to the Legal Services Commissioner.