Contents (2011 - 37)
Workers Compensation Regulation 2010
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).