Family Law Rules (Amendment) (Cth)

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Statutory Rules 1997

No. 154 1

__________________

Family Law Rules 2(Amendment)

WE, Judges within the meaning of the Family Law Act 1975, make the following Rules of Court under that Act.

Dated 19 June 1997.

J.F. FOGARTY
H.R. FREDERICO
E.R. BAKER
T.E. LINDENMAYER
RODERICK JOSKE
JOESEPHINE M. MAXWELL
ADRIAN SMITHERS
P.F. UNDERHILL
PETER B. HASE
D. BULBECK
M.A. RENAUD
J.S. PURDY
RODNEY N. PURVIS
J. WILCZEK
W. ROURKE
H.J. BURTON
G.R. MULLANE
MARY JANE M. LAWRIE
A. GRAHAM
N. MUSHIN
I.R. COLEMAN
M.A. HANNON
SALLY BROWN
B. JORDAN
LINDA DESSAU
SUSAN MORGAN
MICHELLE MAY
CHRISTINE E. DAWE
Judges of the Family Court
of Australia

A. RADZEVICIUS

Acting Principal Registrar

Family Court of Australia

D.R. ANDERSON
Judge of the Family Court
of Western Australia

S. THACKRAY

Acting Registrar

Family Court of Western Australia

____________

1. Commencement

1.1 These Rules commence on 30 June 1997.

2. Amendment

2.1 The Family Law Rules are amended as set out in these Rules.

3. Order 36A, rule 2 (Delegation of powers to Registrars)

3.1 Paragraph 2 (2) (y):

Omit the paragraph.

4. Order 36A, rule 3 (Delegation of powers to Judicial Registrars)

4.1 Paragraph 3 (yaa):

Omit the paragraph, substitute:

“(yaa)
the power under subrule 28 (2) of Order 38 to make an order in relation to a costs agreement made under rule 27 of that Order;”.

5. Order 38 (Costs)

5.1 Omit the Order, substitute Order 38 set out in Schedule 1.

6. Schedule 1 (Forms)

6.1 Forms 56, 57 and 58:

Omit the Forms, substitute Forms 56, 57 and 58 set out in Schedule 2.

7. Schedule 2 (Scale of costs (including counsel’s fees))

7.1 Omit “Order 38”, substitute “Order 38, rule 5”.

SCHEDULE 1 Rule 5

NEW ORDER 38

“ORDER 38—COSTS

“Division 1—General

Interpretation

“1. In this Order, unless the contrary intention appears:

‘bill’ means a bill of costs in accordance with rule 42;

‘costs’ includes fees and disbursements;

‘costs agreement’ means an agreement under subrule 27 (1);

‘costs order’ means an order under subsection 117 (2) of the Act;

‘legal aid body’ means a relevant authority within the meaning of section 116C of the Act;

‘taxed costs’ means costs taxed in accordance with this Order;

‘work done for proceedings’ includes work done in relation to proceedings.

Application of Order

“2. This Order applies to costs for work done for proceedings:

(a)
ordered to be paid or taxed; or
(b)
payable, or to be taxed, as between solicitor and client; or
(c)
payable by one person to another person.

Application of Order even if costs have been paid

“3. This Order applies even if an account for costs has been paid.

Interest on outstanding costs

“4. (1) Unless the court otherwise orders, or a costs agreement otherwise provides, interest is payable on outstanding costs at the rate specified in Order 40, rule 1.

“(2) Interest on outstanding costs becomes due and payable on and from the date on which the solicitor, or the party, entitled to be paid the costs is entitled under these Rules to commence proceedings to recover the costs.

“Division 2—Solicitor’s fees and disbursements

Proper costs

“5. (1) Subject to rule 6, and unless the court otherwise orders, a solicitor may charge for work done for proceedings:

(a)
fees that are not more than the amount calculated for the work in accordance with the scale of fees in Part 1 of Schedule 2; and
(b)
disbursements (including counsel’s fees) properly incurred for the proceedings.

“(2) Unless the court otherwise orders, a solicitor who does work for proceedings that are heard by a court of summary jurisdiction must not charge for the work a fee that is more than 80% of the amount that may be charged for the work in accordance with the scale of fees in Part 1 of Schedule 2.

“(3) This rule does not apply to the charge that a solicitor may make for work done for proceedings if:

(a)
the solicitor has entered into a costs agreement with the client; and
(b)
the costs agreement has not been set aside.

Additional charge for skill, etc

“6. In addition to the other fees that a legal practitioner may charge for work done for proceedings, the legal practitioner may charge a fee calculated on the basis of:

(a)
the complexity of the proceedings; or
(b)
the difficulty or novelty of the matters raised in the proceedings; or
(c)
the special skill, knowledge or responsibility required of, or the demands placed on, the legal practitioner by the client or the proceedings; or
(d)
the amount or value of the property or financial resource involved in the proceedings; or
(e)
the importance of the proceedings to the client; or
(f)
any other relevant matter.

Work not reasonably required for proceedings

“7. (1) A solicitor must not charge costs for:

(a)
a kind, or amount, of work not reasonably required to be done for proceedings; or
(b)
work done for the administration of the solicitor’s office; or
(c)
preparing documents not reasonably required for the conduct of the proceedings.

“(2) However, a solicitor may charge for work, or recover the cost of a disbursement, if:

(a)
a client instructs the solicitor to:
(i)
do work for proceedings; or
(ii)
incur a disbursement of a particular kind or amount; and
(b)
the solicitor advises the client that:
(i)
the work is not reasonably required to be done; or
(ii)
the disbursement is not reasonably required to be incurred; and
(c)
in accordance with the client’s instruction, the solicitor does the work, or incurs the disbursement.

Charge for each page

“8. (1) A solicitor must not charge an amount for a page of a document prepared for proceedings unless the page complies with the requirements for documents specified in Order 2, rule 2.

“(2) In addition, the solicitor may only charge the amount specified in column 3 of an item in Schedule 2 for a page of a document, or other written material, if the page:

(a)
contains at least 300 words (excluding material that is part of a prescribed form and material that could have been omitted from a document prepared in accordance with a prescribed form); or
(b)
is the whole of a document that is required by these Rules to be set out on a single sheet of paper.

“(3) If a page is not of a kind described in paragraph (2) (a) or (b), the solicitor may charge an appropriate amount for the page.

Postage within Australia and local telephone calls

“9. (1) The charge for producing a typed or mechanically printed document (including a letter) specified in column 3 of item 3 in Schedule 2 includes an allowance for:

(a)
preparing one file copy of the document; and
(b)
postage of the document within Australia.

“(2) An amount paid for:

(a)
a local telephone call; or
(b)
postage within Australia;

is not a disbursement properly incurred for proceedings.

Solicitor and client costs—solicitor acting as counsel

“10. (1) This rule:

(a)
applies to costs as between solicitor and client; and
(b)
is subject to rule 15.

“(2) Fees (including a fee for time spent by the solicitor in accordance with rule 14) paid, or to be paid, to a solicitor for acting for a party to proceedings:

(a)
both as counsel and solicitor; or
(b)
as counsel under instructions from another solicitor;

are fees properly incurred for the proceedings if subrule (3) applies.

“(3) This subrule applies if:

(a)
either:
(i)
the proceedings were heard by the Full Court; or
(ii)
in any other case—it was reasonable to brief counsel to appear in the proceedings; and
(b)
the fees:
(i)
are reasonable, and do not exceed the amount otherwise payable under these Rules for counsel to appear in the proceedings; or
(ii)
are in accordance with a costs agreement.

Preparation of appeal papers

“11. In calculating an amount payable under item 7 in Schedule 2 (preparation of appeal papers in a solicitor’s office), the solicitor must not charge at a rate that exceeds commercial rates for copying and binding.

Costs for proceedings not instituted together

“12. (1) If:

(a)
a solicitor commences proceedings on behalf of a client; and
(b)
the proceedings could reasonably have been commenced:
(i)
at the same time as other proceedings between the same parties; and
(ii)
in the same court as those other proceedings; and
(c)
the proceedings were not commenced at that time in that court;

the solicitor may charge for work done for all the proceedings only the amount that the solicitor could have charged if the solicitor had commenced all the proceedings at the same time in the same court.

“(2) Subrule (1) does not apply if:

(a)
the solicitor advised the client of the likely costs of:
(i)
commencing the proceedings at the same time and in the same court as the other proceedings; and
(ii)
conducting the proceedings separately; and
(b)
the solicitor commenced the proceedings separately in accordance with instructions from the client.

Work done by employees, etc

“13. In calculating the fee that a solicitor may charge for work done for proceedings, work done is taken to have been done by the solicitor if the work was done by:

(a)
a partner of the solicitor; or
(b)
another solicitor employed by the solicitor.

Waiting and travelling time

“14. (1) A solicitor may charge an amount for time reasonably spent attending court for the hearing of proceedings if the solicitor:

(a)
was at court waiting for a hearing, a conciliation conference or a pre-hearing conference:
(i)
to commence after the due time for commencement of the hearing; or
(ii)
to resume after the due time for resumption of the hearing; or
(b)
was travelling to or from court.

“(2) However, the solicitor must not charge an amount for time spent travelling to or from court that exceeds 2 hours per day, unless the circumstances, or the client’s instructions, justify charging for the additional time.

“(3) A solicitor who attends court for the hearing of 2 or more proceedings may charge, for each proceeding, 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 commence or resume.

“(4) However, the total amount charged under this rule for all proceedings must not exceed the amount that may be charged under Part 1 of Schedule 2 for one proceeding.

Agent’s fees

“15. Fees paid to a solicitor acting as the agent of a solicitor for a party to proceedings are disbursements properly incurred for the proceedings only so far as the fees:

(a)
do not exceed the amount that the solicitor for the party would have been entitled to charge the client if the solicitor had done the work personally; or
(b)
are incurred in accordance with the client’s instructions to the solicitor for the party, or the solicitor’s agent, acknowledging the likely additional cost (if any) of the matter being undertaken by the solicitor’s agent; or
(c)
are in accordance with any costs agreement.

Expenses for attendance by witness

“16. An amount paid, or to be paid, by a solicitor for attendance by a witness at a hearing of proceedings is a disbursement properly incurred for proceedings if:

(a)
the attendance was reasonably required for the proceedings; and
(b)
the amount:
(i)
is reasonable; or
(ii)
is authorised by the client; or
(iii)
is authorised, or approved, by the court.

Expenses for preparation of report by expert

“17. An amount paid by a solicitor to an expert for the preparation of a report for a party, or a child’s representative, is a disbursement properly incurred for proceedings if:

(a)
the report was reasonably required for the conduct of the proceedings; and
(b)
the amount:
(i)
is reasonable; or
(ii)
is authorised by the client; or
(iii)
is authorised, or approved, by the court.

Costs unreasonably or negligently incurred

“18. A solicitor must not charge, for work done for proceedings, an amount for costs if the costs were improperly or negligently incurred by the solicitor.

“Division 3—Undefended proceedings for dissolution of marriage

Application of Division

“19. This Division applies to undefended proceedings for a decree of dissolution of marriage.

Interpretation

“20. In this Division:

‘basic composite amount’ means the amount that a solicitor may charge for costs under rule 21 for basic work done for proceedings;

‘basic work done for proceedings’ means the following work:

(a)
taking instructions for, preparing and completing (in handwriting or by mechanical or electronic means) an application in accordance with Form 4;
(b)
attendance for the purpose of:
(i)
having the verifying affidavit sworn; or
(ii)
filing the application; or
(iii)
obtaining a date for the hearing of the application;
(c)
copying the application;
(d)
attendances, letters and telephone calls to arrange:
(i)
service of the application; and
(ii)
preparation of an acknowledgment of service; and
(iii)
an affidavit of service and a proof of signature;
(e)
arranging for the signing, filing and copying of the documents specified in paragraph (d);
(f)
conferences with the applicant;
(g)
if a solicitor appears in court personally—travelling to, attending and appearing in court;
(h)
if a solicitor instructs counsel or an agent to appear in proceedings:
(i)
instructions and correspondence to, and telephone discussions with, counsel or the agent; and
(ii)
fees of counsel or the agent;
(i)
perusing and copying the decree of dissolution of marriage and forwarding it to the applicant;
(j)
all necessary correspondence to, and telephone discussions with, the applicant in relation to the application.

Charge of basic composite amount

“21. (1) If the solicitor for an applicant employed another solicitor or counsel to appear for the applicant in the proceedings, the solicitor may charge for costs:

(a)
if there is a child of the marriage under 18 years old—the amount specified in item 17 in Part 3 of Schedule 2; or
(b)
if there is no such child—the amount specified in item 18 in Part 3 of Schedule 2.

“(2) If the solicitor for an applicant did not employ another solicitor or counsel to appear for the applicant in the proceedings, the solicitor may charge for costs:

(a)
if there is a child of the marriage under 18 years old—the amount specified in item 19 in Part 3 of Schedule 2; or
(b)
if there is no such child—the amount specified in item 20 in Part 3 of Schedule 2.

“(3) However, the solicitor must not charge, for work done for the proceedings, an amount for costs that exceeds the amount calculated in accordance with Part 1 of Schedule 2 if:

(a)
the proceedings are settled or discontinued before hearing; and
(b)
the court has not made an order.

Charge in addition to the basic composite amount

“22. (1) If a solicitor charges the basic composite amount, the solicitor must not make another charge for work done for the proceedings.

“(2) However, the solicitor may charge an amount calculated in accordance with Part 1 of Schedule 2 if the solicitor:

(a)
charges the basic composite amount; and
(b)
does work for the proceedings that is not basic work done for proceedings.

“(3) A filing fee paid to the court on filing an application is a disbursement properly incurred for the proceedings.

“(4) This rule is subject to rule 7 and any costs agreement that applies to the work done by the solicitor for the proceedings.

“Division 4—Counsel’s fees

Party and party costs—counsel’s fees

“23. (1) Except in relation to costs as between solicitor and client, fees paid, or to be paid, to counsel briefed to appear for a person in proceedings are disbursements properly incurred for the proceedings if:

(a)
either:
(i)
the proceedings were heard by the Full Court; or
(ii)
in any other case—it was reasonable to brief counsel to appear in the proceedings; and
(b)
the fees do not exceed the amount otherwise payable under these Rules for counsel to appear in the proceedings.

“(2) A reading fee for counsel is not a disbursement properly incurred under subrule (1), unless:

(a)
the matter is unusually complex; or
(b)
the amount of material involved is particularly large.

“(3) The amount payable in respect of counsel’s fees must not exceed an amount calculated in accordance with:

(a)
Part 2 of Schedule 2; or
(b)
any relevant provision of this Order;

as the case requires.

“(4) However, in respect of proceedings before a court of summary jurisdiction, the amount payable for counsel’s fees may include fees in respect of only the matters referred to in item 13 or item 14 of Part 2 of Schedule 2.

“(5) If a daily fee in respect of the appearance of counsel is payable in accordance with Part 2 of Schedule 2, no additional amount is payable for work done for the proceedings by counsel on any day in respect of which the daily fee applies.

Party and party costs—solicitor acting as counsel

“24. (1) This rule does not apply to costs as between solicitor and client.

“(2) Fees paid, or to be paid, to a solicitor for acting for a party to proceedings:

(a)
both as counsel and solicitor; or
(b)
as counsel under instructions from another solicitor;

are fees properly incurred for the proceedings if subrule (3) applies.

“(3) This subrule applies if:

(a)
either:
(i)
the proceedings were heard by the Full Court; or
(ii)
in any other case—it was reasonable to brief counsel to appear in the proceedings; and
(b)
the fees do not exceed the amount otherwise payable under these Rules for counsel to appear in the proceedings.

Solicitor and client costs—counsel’s fees

“25. (1) This rule applies to costs as between solicitor and client.

“(2) Fees paid, or to be paid, to counsel briefed to appear for a party to proceedings are disbursements properly incurred for the proceedings if:

(a)
either:
(i)
the proceedings were heard by the Full Court; or
(ii)
in any other case:
(A)
it was reasonable to brief counsel to appear in the proceedings; or
(B)
the client requested that counsel be briefed to appear in the proceedings; and
(b)
the fees:
(i)
are reasonable and do not exceed the amount otherwise payable under these Rules for counsel to appear in the proceedings; or
(ii)
are in accordance with a costs agreement; or
(iii)
were authorised by the client before the appearance by counsel.

“(3) However, a reading fee for counsel is not a disbursement properly incurred, unless:

(a)
the matter is unusually complex; or
(b)
the amount of material involved is particularly large.

Certificate that briefing counsel is reasonable

“26. The court, Judicial Registrar, or Registrar, before whom proceedings are heard may certify that it was reasonable to brief counsel to appear for a person in the proceedings.

“Division 5—Solicitor and client agreements

Agreements as to costs

“27. (1) A solicitor may enter into an agreement with a client of the solicitor relating to the costs to be charged by the solicitor for work done for proceedings.

“(2) A costs agreement must be fair and reasonable.

“(3) A costs agreement must:

(a)
be in writing; and
(b)
be signed by both the solicitor and the client.

“(4) At the time of, or within a reasonable time after, entering into a costs agreement, a solicitor must:

(a)
provide each other party to the costs agreement with a copy of a pamphlet, prepared by the Principal Registrar, that summarises the main effects of this Order; and
(b)
advise each other party to the costs agreement of the availability of independent legal advice concerning the costs agreement.

“(5) The court, or a Judicial Registrar, may set aside a costs agreement if subrule (2), (3) or (4) is not complied with.

Validity and effect of costs agreements

“28. (1) A party to a costs agreement may apply to a Family Court 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.

“(2) If an application is made under subrule (1), a Judge or a Judicial Registrar may make:

(a)
the order sought; or
(b)
any other order that the Judge or Judicial Registrar thinks fit.

Costs to be in accordance with costs agreement

“29.(1) This rule is subject to any order made under rule 28.

“(2) A solicitor must not charge an amount for costs that exceeds the amount that may be charged under a costs agreement (if any) entered into by the solicitor.

“(3) However, if the costs agreement has been set aside, the solicitor may charge an amount for costs that is in accordance with this Order.

“Division 6—Costs orders

Application for costs order

“30. An application for a costs order may be made:

(a)
at any stage of proceedings; or
(b)
within 28 days after the date on which the relevant decree in the proceedings was made; or

(c)
within any further time allowed by the court.

Assessment of costs

“31. (1) If the court proposes to make a costs order, the court may assess the amount of costs or security for costs to be paid under the order.

“(2) For its assessment, the court may obtain, from the person in whose favour the costs order is to be made, an estimate of the person’s costs in the proceedings.

“(3) The court may make any of the following costs orders:

(a)
an order that a specific amount be paid by one person to another person;
(b)
an order that the costs payable be taxed;
(c)
an order that the costs be paid by a person;
(d)
an order for security for costs.

“(4) In ordering a taxation of costs under paragraph (3) (b), the court may give to the taxing officer any directions that the court thinks fit.

“(5) If the court makes a costs order, the court may:

(a)
require the costs to be paid without delay, even if the proceedings have not concluded; and
(b)
specify in the order any other terms and conditions relating to the payment of the costs.

Unquantified costs

“32. (1) A person is entitled to be paid taxed costs if:

(a)
the court orders unquantified costs to be paid to the person; or
(b)
proceedings are dismissed with costs; or
(c)
an application is refused with costs; or
(d)
the person is otherwise entitled under these Rules to be paid unquantified costs.

“(2) The costs may be taxed without any other order directing taxation.

Costs order for specific amount instead of taxed costs

“33. If the court makes a costs order under which costs are to be paid to a person, the court may also order that, in respect of the whole or any part of the costs specified in the order, the person is entitled, instead of taxed costs, to:

(a)
a proportion of the amount specified in the order of taxed costs; or
(b)
the taxed costs from, or up to, a stage of the proceedings specified in the order; or
(c)
a gross amount specified in the order; or
(d)
an amount to be calculated in a manner directed by the court.

Costs order for proceedings in other courts

“34.(1) This rule applies to proceedings in the Family Court that:

(a)
have been transferred from another court; or
(b)
are on appeal from a decision of another court.

“(2) The Family Court may make a costs order in respect of the proceedings before the other court.

“(3) The costs order may:

(a)
specify the amount to be allowed in respect of the whole or part of the costs; or
(b)
order that the whole or part of the costs be taxed in accordance with this Order; or
(c)
order that the whole or part of the costs be taxed, or otherwise quantified, in accordance with the costs rules of the other court.

Disallowance of certain costs

“35. At a hearing, or on an application, and whether or not objection is taken, the court may:

(a)
if costs have been improperly, unreasonably or negligently incurred—direct that the costs be disallowed; or
(b)
direct the taxing officer to examine the costs incurred, and disallow any costs that the taxing officer finds have been improperly, unreasonably or negligently incurred.

Costs orders against legal practitioners

“36. (1) The court or a Registrar may make a costs order against a legal practitioner if the legal practitioner, or an employee or agent of the legal practitioner, has caused costs:

(a)
to be incurred by a party or another person because of improper or unreasonable conduct; or
(b)
to be thrown away because of undue delay, negligence or any other misconduct or default.

“(2) Without limiting the generality of paragraph (1) (b), a legal practitioner may be in default for that paragraph if it is not possible for a hearing to proceed conveniently because the legal practitioner has unreasonably failed to:

(a)
attend the hearing personally, or send another person to attend the hearing on behalf of the legal practitioner; or
(b)
file, lodge or deliver a document that should have been filed, lodged or delivered; or
(c)
prepare any proper evidence or information; or
(d)
do any other act necessary for the hearing to proceed.

“(3) An application for a costs order against a legal practitioner may be made by:

(a)
a party to the proceedings; or
(b)
a person who has incurred costs because of the legal practitioner’s improper or unreasonable conduct; or
(c)
a person who has incurred costs thrown away because of the legal practitioner’s undue delay, negligence or other misconduct or default.

“(4) A costs order against a legal practitioner may be made on the motion of the court or Registrar.

“(5) A costs order against a legal practitioner may provide that:

(a)
the whole or any part of the costs between the legal practitioner and the party be disallowed; or
(b)
the legal practitioner pay the whole or any part of the costs incurred by another person; or
(c)
the legal practitioner pay to the party, or the other person, the whole or any part of the costs that the party has been ordered to pay to the other person.

“(6) Before making a costs order against a legal practitioner:

(a)
the court or Registrar must give the legal practitioner, and any person who may be affected by the decision, a reasonable opportunity to be heard; and
(b)
the court or Registrar may order that notice of the costs order, or of any proceeding against the legal practitioner, be given, as directed by the court or Registrar, to:
(i)
a party for whom the legal practitioner may be acting; or
(ii)
any other person.

“Division 7—Accounts and bills

Application to legal aid bodies

“37. In this Division, unless the contrary intention appears:

‘person’ includes a legal aid body.

Notice of rights

“38. (1) A solicitor must serve a notice of rights on a person (except a legal aid body) who is liable to pay the costs of work done for proceedings.

“(2) A notice of rights must:

(a)
be in a form approved by the Principal Registrar; and
(b)
contain a statement to the effect that, in accordance with this Division, the person on whom it is served may:
(i)
if an account payable by the person is not in the form of a bill—request a bill; and
(ii)
in any case—dispute the account, or any part of it.

“(3) A solicitor is not required to serve more than 1 notice of rights if each account rendered in the course of the proceedings, after the notice of rights was served, includes an endorsement referring to the notice of rights.

Service of account before costs may be recovered

“39. (1) This rule is subject to rule 46.

“(2) A solicitor must not commence proceedings to recover costs from a person (except a legal aid body) unless:

(a)
the solicitor has served on the person an account for the costs, and a notice of rights; and
(b)
at least 28 days have elapsed after the later of:
(i)
the day on which the account was served; and
(ii)
the day on which the notice was served.

“(3) A solicitor must not commence proceedings to recover costs from a legal aid body unless:

(a)
the solicitor has served an account for the costs on the legal aid body; and
(b)
at least 28 days have elapsed after the day on which the account was served.

Service of bill by costs receiver (except under a costs agreement)

“40. (1) A person who is entitled to be paid costs (‘the costs receiver’) may serve a bill on the person who is liable to pay the costs (‘the costs payer’) if:

(a)
a court has ordered costs to be paid; or
(b)
costs are otherwise payable under these Rules.

“(2) If the costs receiver does not serve a bill on the costs payer, the costs payer may request the costs receiver to serve a bill.

“(3) However, except with the leave of the court, the costs payer must not request the costs receiver to serve a bill if the costs payer:

(a)
has been served with an account for the costs; and
(b)
has paid the costs.

“(4) If a request is made, the costs receiver must serve the bill within 28 days after the date of the request.

“(5) This rule does not apply if the costs receiver is a solicitor to whom the costs payer is liable to pay costs under a costs agreement.

Service of bill by solicitor under a costs agreement

“41. (1) A person who is liable to pay costs to a solicitor under a costs agreement may request the solicitor to serve a bill on the person if subrule (2) or (3) applies.

“(2) This subrule applies if:

(a)
the solicitor has served on the person an account for the costs; and
(b)
the person has not paid the costs.

“(3) This subrule applies if:

(a)
the solicitor has not served on the person an account for the costs; and
(b)
the person has paid the costs.

“(4) If subrule (2) applies, the request must be made:

(a)
if the person is a legal aid body—within 28 days after the day on which the account was served; or
(b)
in any other case—within 28 days after the later of:
(i)
the day on which the account was served; and
(ii)
the day on which the notice of rights was served.

“(5) If subrule (3) applies, the request must be made within:

(a)
1 year after the date of payment; or
(b)
any longer period allowed by the court.

“(6) If the solicitor has received a request to serve a bill on a person, the solicitor must not commence proceedings to recover the costs from the person, unless:

(a)
if the person is a legal aid body:
(i)
the solicitor has served a bill on the legal aid body; and
(ii)
at least 28 days have elapsed after the day on which the bill was served; or
(b)
in any other case:
(i)
the solicitor has served a bill, and a notice of rights, on the person; and
(ii)
at least 28 days have elapsed after the later of:
(A)
the day on which the bill was served; and
(B)
the day on which the notice was served.

Requirements of bill—Form 56

“42. (1) A bill must be in accordance with Form 56.

“(2) The bill must specify:

(a)
each item of work for which costs are payable, including whether the work was done:
(i)
by a solicitor; or
(ii)
by an employee or agent of a solicitor; and
(b)
each disbursement claimed, including:
(i)
the name of the person to whom the disbursement was paid; and
(ii)
the nature of the disbursement; and
(c)
the amount payable for each item; and
(d)
the date on which each item occurred; and
(e)
any amount received or credited in respect of the costs.

“(3) Each item of work and each disbursement must be distinctively numbered.

“(4) Each item of work must contain sufficient detail to enable the bill to be taxed.

Amendment of bill

“43. (1) A solicitor may, without leave, amend a bill that is to be taxed.

“(2) An amendment may be made at any time before the commencement of the taxation hearing in relation to the bill.

“(3) Each amendment must be clearly indicated on the page of the bill being amended.

“(4) If a solicitor amends a bill, the solicitor must:

(a)
file a copy of each amended page; and
(b)
serve a copy of each amended page on the person who is liable to pay the costs.

“Division 8—Disputing a bill

Application to legal aid bodies

“44. In this Division, unless the contrary intention appears:

‘person’ includes a legal aid body.

Notice disputing bill—Form 57

“45. (1) A person who is served with a bill may dispute an item in the bill by filing:

(a)
a copy of the bill; and
(b)
a notice disputing the bill.

“(2) The notice must:

(a)
be in accordance with Form 57; and
(b)
identify each item in dispute; and
(c)
state the grounds of objection in respect of each item in dispute; and
(d)
in respect of each item in dispute:
(i)
state that the person giving the notice considers that no amount of costs is payable; or
(ii)
specify the amount of costs that the person giving the notice considers is reasonable.

“(3) A copy of the notice must be served on the person on whose behalf the bill was served.

“(4) The notice must be filed and served:

(a)
if the person is a legal aid body—within 28 days after the day on which the bill was served; or
(b)
in any other case—within 28 days after the later of:
(i)
the day on which the bill was served; and
(ii)
the day on which the notice of rights was served.

Proceedings to recover costs

“46. If a person files and serves a notice disputing a bill, the person on whose behalf the bill was served must not commence, or continue, proceedings to recover costs from the person who filed the notice unless the notice has been:

(a)
dealt with in accordance with this Order; or
(b)
withdrawn.

“Division 9—Taxing a bill

Taxing officers

“47. (1) All Registrars of a court are appointed as taxing officers.

“(2) Each taxing officer is to assist each other taxing officer.

Fixing of taxation hearing

“48. If a notice disputing a bill is filed under rule 45, the Registrar must:

(a)
fix, for a taxation hearing in relation to the bill, a date that is at least 14 days after the notice is filed; and
(b)
endorse on the notice:
(i)
the date of the hearing; and
(ii)
the place at which the hearing is to take place.

Certificate of taxation—no notice of dispute

“49. (1) The Registrar may issue a certificate of taxation to a person who is entitled to be paid costs if:

(a)
the person has filed:
(i)
a bill; and
(ii)
an affidavit stating that the bill and, if required by this Order, a notice of rights were served on the person liable to pay the costs; and
(iii)
an affidavit specifying the amount (if any) that has been received or credited in respect of the costs; and
(b)
the person liable to pay the costs has not filed and served a notice disputing the bill in accordance with subrule 45 (2); and
(c)
the time for filing and serving a notice disputing the bill has expired.

“(2) If the Registrar issues a certificate of taxation, the person who served the bill must serve, as soon as practicable, a copy of the certificate on each person from whom costs are sought.

Certificate of taxation—Form 58

“50. A certificate of taxation must be in accordance with Form 58.

Taxation hearing

“51. (1) At a taxation hearing in relation to a bill, a taxing officer must:

(a)
determine the amount (if any) taxed off in respect of each item of the bill identified in the notice disputing the bill; and
(b)
determine the total amount payable for the costs of the taxation; and
(c)
calculate the total amount payable in respect of the costs and disbursements allowed; and
(d)
determine the total amount (if any) of costs paid or credited; and
(e)
calculate the total amount payable for costs.

“(2) At the completion of the taxation hearing, the taxing officer must issue a certificate of taxation to each party to the taxation who:

(a)
is present at the hearing; or
(b)
is represented at the hearing by a legal practitioner.

Powers of taxing officers

“52. (1) For the purpose of taxing a bill, a taxing officer may do any of the following:

(a)
summon a witness to appear;
(b)
examine a witness;
(c)
require a person to file an affidavit;
(d)
administer an oath;
(e)
direct, or require, that a book, paper or document be produced;
(f)
issue a separate or interim certificate of taxation;
(g)
adjourn the taxation hearing;
(h)
do, or direct another person to do, any other act that is:
(i)
required to be done under these Rules; or
(ii)
directed to be done by the court or a Registrar.

“(2) A taxing officer may refer to the court, for the direction of the court, any question arising in the taxation of a bill.

Taxation principles

“53. Subject to rule 54, a taxing officer must tax a bill in accordance with:

(a)
the principles in this Order; and
(b)
any relevant costs agreement; and
(c)
any relevant orders of a court or a Registrar.

Agreement between solicitor and legal aid body

“54. If a solicitor has made an agreement with a legal aid body in relation to the solicitor’s costs of acting for a client in proceedings, the taxing officer must tax the solicitor’s bill for work done for the proceedings in accordance with:

(a)
the agreement; and
(b)
to the extent that they are not inconsistent with the agreement:
(i)
the principles in this Order; and
(ii)
any relevant orders of a court or a Registrar.

Costs to be allowed on taxation

“55. (1) This rule is subject to rules 53 and 54.

“(2) A solicitor’s bill for the amount due under a costs agreement that has not been set aside must be taxed in accordance with the costs agreement as varied by any order under rule 28.

“(3) A taxing officer must allow all fees, disbursements, charges and expenses that, in the opinion of the taxing officer, appear reasonable in seeking a fair and equitable outcome in the proceedings.

“(4) In taxing costs as between party and party, a taxing officer must not allow costs that were incurred as a result of:

(a)
improper, negligent, unnecessary or unreasonable conduct by the solicitor or a party; or
(b)
payment of any other unusual expense.

Exercise of discretion

“56. (1) Unless otherwise provided in this Order, a fee or allowance that is discretionary may be allowed at the discretion of a taxing officer.

“(2) In the exercise of the taxing officer’s discretion, the taxing officer must take the following matters into consideration:

(a)
any other fees and allowances to the solicitor and counsel in respect of work to which a fee or allowance applies;
(b)
the complexity of the proceedings;
(c)
the amount or value of the property or financial resource involved;
(d)
the importance of the proceedings to the client;
(e)
the difficulty or novelty of the matters raised in the proceedings;
(f)
the special skill, knowledge or responsibility required, or the demands made, of the solicitor and counsel by the proceedings;
(g)
the general conduct and cost of the proceedings;
(h)
any other relevant matter.

Allowance for matters not specified

“57. A taxing officer may allow a sum that the taxing officer thinks is reasonable, having regard to all the circumstances of the case, for work properly performed:

(a)
that is not specifically provided for in Schedule 2; and
(b)
in respect of which the taxing officer thinks an allowance should be made.

Costs improperly, unreasonably or negligently incurred

“58. If the issue of whether costs have been improperly, unreasonably or negligently incurred has not been raised and dealt with by the court, a taxing officer must:

(a)
consider the issue as if the court had made a direction under paragraph 35 (b); and
(b)
disallow any costs that the taxing officer finds have been improperly, unreasonably or negligently incurred.

Daily fees

“59. (1) If:

(a)
counsel is briefed to appear at a hearing of proceedings; and
(b)
the hearing takes more than 1 day; and
(c)
costs are to be taxed on a party and party basis;

a taxing officer may allow a fee in accordance with Part 2 of Schedule 2 for each further day, or part of a day, as the taxing officer thinks fit.

“(2) Subrule (1) applies whether or not a witness is examined at the hearing.

Taxation on party and party basis—counsel’s fees

“60. (1) A taxing officer may allow the costs of briefing more than 1 counsel even if no counsel is one of Her Majesty’s Counsel or Senior Counsel.

“(2) A taxing officer must not allow costs for the attendance of counsel before the taxing officer, unless:

(a)
the taxing officer considers that the attendance was reasonable; or
(b)
the court otherwise orders.

Neglect or delay before taxing officer

“61. If, in proceedings before a taxing officer, a party:

(a)
is guilty of neglect or delay; or
(b)
puts another party to improper expense;

the taxing officer may:

(c)
certify:
(i)
the costs of the other party; and
(ii)
the refusal or neglect of the party who is guilty of neglect or delay; or
(d)
allow a nominal or other sum to the party who is guilty of neglect or delay.

Costs of taxing a bill

“62. (1) Unless a taxing officer orders otherwise, each party to a taxation must pay his or her costs of the taxation.

“(2) If a taxing officer orders a person to pay the whole, or a part, of another person’s costs in relation to the taxing of a bill, the taxing officer must determine the amount payable by the person before issuing a certificate of taxation.

Certificate of taxation to be judgment for debt

“63.(1) The total amount payable for costs specified in a certificate of taxation is:

(a)
immediately due and payable; and
(b)
recoverable in any court of competent jurisdiction;

as if the certificate were a judgment for a debt of the amount specified in the certificate.

“(2) Order 31, rule 6 (which deals with rectification of an error contained in a decree) applies to a certificate of taxation as if it were a decree.

“Division 10—Review of taxation

Interpretation

“64. In this Division, unless the contrary intention appears:

‘application for review’ means an application for review of:

(a)
the taxation of a bill; or
(b)
a decision by a taxing officer in relation to the taxation of a bill.

Review of taxation

“65. The taxation of a bill, or a decision by a taxing officer in relation to the taxation of a bill, is reviewable:

(a)
if the taxation was conducted by a Registrar of a Family Court—by a Judge; or
(b)
in any other case—by a Magistrate.

Time for filing application for review

“66. An application for review must be filed:

(a)
within 14 days after the certificate of taxation in relation to the bill is issued; or
(b)
on or before a later date fixed by the court or the taxing officer.

Further evidence

“67. Unless the court otherwise orders, a party must not give further evidence at the hearing of an application for review.

Issues that may be raised at hearing of review

“68. A party must not raise an issue at the hearing of an application for review, unless the issue:

(a)
was identified in a valid notice disputing the bill; or
(b)
concerns the costs of taxing the bill; or
(c)
concerns an alleged error of calculation in, or omission from, the taxation of the bill; or
(d)
concerns an alleged error of law or fact by the taxing officer.

Powers of court

“69. (1) Subject to rule 67, at the hearing of an application for review, the court may exercise all the powers and discretions of the taxing officer in relation to the subject matter of the review.

“(2) In particular, the court may do any of the following:

(a)
confirm the certificate of taxation;
(b)
set the certificate aside and order a revised certificate to be issued;
(c)
order that any question be referred to:
(i)
the taxing officer whose decision is the subject of the review; or
(ii)
another taxing officer;
(d)
make any other order that the court thinks fit.”.
___________

SCHEDULE 2 Rule 6

NEW FORMS—SCHEDULE 1

FORM 56 Order 38, rule 42

BILL OF COSTS
NOTICE

1. If you do not agree with anything in this bill, you must, within 28 days of the bill being served on you:

(a)
make an agreement with the person who prepared the bill and request the court to make a consent order in the terms of the agreement; or
(b)
file at the court a copy of the bill and a notice disputing the bill.

2. A notice disputing the bill must identify each item in dispute, give the reason for dispute and state the amount (if any) offered in substitution for the amount specified in the bill.

3. If you file a notice disputing the bill, you must also serve a copy of the notice disputing the bill on the person who prepared the bill.

4. If you file a notice disputing the bill, the bill will be listed for a taxation hearing before a taxing officer at the time and place endorsed on the notice disputing the bill.

SUMMARY

Page No. Fees Disbursements Amounts

claimed claimed taxed off
1 $ (insert amount) $ (insert amount) $ (insert amount)
2 $ (insert amount) $ (insert amount) $ (insert amount)
3 $ (insert amount) $ (insert amount) $ (insert amount)
4 $ (insert amount) $ (insert amount) $ (insert amount)
(Complete for all pages)
(Include the costs of the taxation hearing)

Total $ (insert amount) $ (insert amount) $ (insert amount)
FORM 56—continued
CLAIMED: Fees $ (insert amount)
Disbursements $ (insert amount)
TOTAL OF BILL: $ (insert amount)

In accordance with the summary set out above, (insert name of person(s) claiming payment) claim(s) payment of the total amount of the bill.

DATED: 19 .

.................................................

(Signature)

TOTAL OF BILL (as above): $ (insert amount)

LESS COSTS TAXED OFF: $ (insert amount)

TOTAL COSTS ALLOWED: $ (insert amount)

LESS TOTAL ALREADY PAID OR CREDITED: $ (insert amount)

TOTAL AMOUNT PAYABLE FOR COSTS: $ (insert amount)

__________
DESCRIPTION OF ITEMS
Page No. (insert page number)

Item Date Description Disbursement Fees Amount

No. taxed off

(Insert relevant details)

FORM 57 Order 38, rule 45

[INSERT FORM 57—1 PAGE ONLY[MG1] ]

FORM 58[MG2] Order 38, rule 50

[INSERT FORM 58—1 PAGE ONLY]

NOTES

1. Notified in the Commonwealth of Australia Gazette on 26 June 1997.
2. Statutory Rules 1984 No. 425 as amended by 1985 No. 341; 1986 Nos. 6 and 193; 1987 Nos. 15, 74 and 222; 1988 Nos. 9, 15, 16, 46, 166 and 236; 1989 Nos. 49, 65, 175, 201, 266 and 331; 1990 Nos. 20, 74, 348 and 474; 1991 Nos. 122, 414, 475 and 476; 1992 Nos. 8, 45, 161 and 304; 1993 Nos. 51 and 160; 1994 Nos. 25, 58, 59, 60, 61, 62, 152 and 401; 1995 Nos. 2, 144, 145, 146, 319 and 371; 1996 Nos. 28 and 60; 1997 No. 97.

[MG1]Missing form here.

[MG2]Missing form here.

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Family Law Rules (Amendment) (Cth)

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