Legal Profession Act 1987 Legal Profession Amendment (Costs Assessment) Regulation 1999 (1999-511) [GG No 104 of 10.9.1999, p 8701] (NSW)
1999 No 511
| Legal Profession Amendment (Costs | New South Wales |
Assessment) Regulation 1999
under the
Legal Profession Act 1987
His Excellency the Governor, with the advice of the Executive Council, has made the following Regulation under the Legal Profession Act 1987.
JEFFREY SHAW Q.C., M.L.C.,
Attorney General
Explanatory note
The objects of this Regulation are:
| (a) | to provide for applications to, and the procedure for reviews by, panels conducting reviews under Subdivision 4A of Division 6 of Part 11 of the Legal Profession Act 1987 of determinations of costs assessors, and |
| (b) | to specify the matters to be included in statements of reasons by such costs assessors and panels, and |
| (c) | to set out those circumstances in which such costs assessors and panels may not refuse to give certificates under the Act in respect of their determinations even though their costs are still owing under the Act. |
This Regulation is made under the Legal Profession Act 1987, including sections 208J (6), 208JAA (2), 208KA (2), 208KF (5), 208KG (2), 208KJ and 216 (the general regulation-making power).
| Published in Gazette No 104 of 10 September 1999, page 8701 | Page 1 |
| [12] | |
| 1999 No 511 | |
| Clause 1 | Legal Profession Amendment (Costs Assessment) Regulation 1999 |
Legal Profession Amendment (Costs Assessment)
Regulation 1999
1 Name of Regulation
This Regulation is the Legal Profession Amendment (Costs
Assessment) Regulation 1999.
2 Commencement
This Regulation commences on 10 September 1999.
3 Amendment of Legal Profession Regulation 1994
The Legal Profession Regulation 1994 is amended as set out in
Schedule 1.
4 Notes
The explanatory note does not form part of this Regulation.
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(Clause 3)
[1] Clause 3 Interpretation
Insert in clause 3 (1) in appropriate alphabetical order:
costs review panel means a panel of two costs assessors constituted to conduct a review under Subdivision 4A of Division 6 of Part 11 of the Act of a costs assessor’s determination.
[2] Clause 26I Certificate of determination of costs
Omit clause 26I (1) (e).
[3] Clause 26IA
Insert after clause 26I:
26IA Circumstances in which assessor may not refuse to issue
certificateSection 208J (5) of the Act does not apply in respect of the issue of a certificate by a costs assessor under section 208J of the Act if the fee for the application for the costs assessment has been waived or postponed (either wholly or in part) by the proper officer of the Supreme Court.
[4] Part 7, Divisions 5A and 5B
Insert after Division 5 of Part 7:
Division 5A Review of costs assessments by costs
review panel
26IB Application for review by costs review panel (1) For the purposes of section 208KA (2) (a) of the Act, an
application for a review of a determination of a costsassessor is to be in Form 2A and is to be filed in triplicate.
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(2)
For the purposes of section 208KA (2) (b) of the Act, the prescribed fee that is to accompany such an application is $275.
26IC Qualification for membership of costs review panels (1) A costs assessor is qualified to be a member of a costs review panel only if the assessor’s name appears on the list compiled under subclause (2).
(2)
The Chief Justice of New South Wales may compile a list of costs assessors considered by the Chief Justice to be suitably qualified to be members of costs review panels.
(3)
The Chief Justice may amend or revoke any list compiled under this clause for any reason that the Chief Justice considers appropriate.
(4) The Chief Justice may delegate any of his or her functions
under this clause (other than this power of delegation) to:
(a) a Judge of the Supreme Court, or (b)
a committee comprised of 1 Judge of the Supreme Court and such other persons as the Chief Justice may appoint.
26ID Reference of applications to costs review panels (1) The proper officer of the Supreme Court may, for the purpose of assisting in the reference of applications for reviews of determinations by costs review panels under section 208KB of the Act, group costs assessors in panels according to factors including expertise, location and jurisdiction.
(2) The proper officer of the Supreme Court is to refer an application for a review by a costs review panel to a panel of the most suitable costs assessors having regard to the following:
(a) the qualification requirement specified in clause 26IC, (b) the availability of costs assessors, (c) the nature of the matter,
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(d)
the location of the parties and the legal practitioners acting for the parties concerned,
(e)
the avoidance of conflict of interests of costs assessors.
(3) The proper officer of the Supreme Court is:
(a)
to issue a notice advising all parties directly affected by the review of the names of the costs assessors who constitute the costs review panel, and
(b)
to direct that all correspondence to the panel be addressed care of the proper officer of the Supreme Court unless a member of the panel on behalf of the panel directs otherwise.
26IE Settlement of review application by consent A costs review panel reviewing the determination of a costs assessor may determine that the amount of fair and reasonable costs is the amount agreed to by the parties to the review if during the course of the review the parties notify the panel that they have agreed on the amount of those costs.
26IF Delivery of application for review and related documents
(1)
An application under section 208KA of the Act for a review by a costs review panel of a determination of a costs assessor is to be made by filing the application with the proper officer of the Supreme Court.
(2) An application must be filed with:
(a) the prescribed fee, and (b) an affidavit that notice of the application has been given to the other parties, and (c) a copy of all the costs assessor’s certificates of determination relating to the assessment that is the subject of the application, and (d) a copy of the costs assessor’s statement of the reasons for the determination. (3) The prescribed fee may be filed with the Registry of the Supreme Court.
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(4) The applicant must give a copy of the application to the other
parties.(5) Any other document in relation to the application that is required or permitted to be given to the proper officer or a costs review panel may be given to the proper officer or to the review panel in any of the following ways:
(a)
by filing it with the proper officer of the Supreme Court,
(b)
by sending it by post to the proper officer of the Supreme Court, or to a place nominated by the review panel,
(c)
by delivering it to the appropriate place in a document exchange in which the proper officer of the Supreme Court has receiving facilities,
(d)
in any other way that a member of the panel on behalf of the panel directs.
26IG Certificate of determination of costs (1) If a costs review panel affirms a costs assessor’s determination, the certificate required to be given under section 208KF of the Act setting out the costs review panel’s determination is to contain a statement that the determination of the costs assessor has been affirmed by the panel.
(2) If a costs review panel sets aside a cost assessor’s determination, the certificate required to be given under section 208KF of the Act setting out the costs review panel’s determination is to contain the following information:
(a)
the amount of costs the panel determines is fair and reasonable,
(b)
a statement of any determination as to the person by whom and the extent to which either the fee paid or payable for the application for review or the costs of the costs assessor or both are to be paid,
(c)
where the determination relates to costs other than party/party costs:
(i)
if the panel declines to assess a bill of costs under section 208C of the Act, the basis for doing so,
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(ii) if the panel determines that a term of a costs agreement is unjust, the basis for doing so,
(iii) a statement of any determination under section 208E of the Act that interest is not payable on the amount of costs (or any part of the amount) assessed, or, if payable, of the rate of interest payable.
Note. Section 208KC of the Act provides that, in reviewing a determination of a costs assessor, a costs review panel has all the functions of a costs assessor under Part 11 of the Act and is to determine the application, subject to Subdivision 4 of Division 6 of that Part and the regulations, in the manner that a costs assessor would be required to determine an application for costs assessment.
(3) The panel is to give to the proper officer of the Supreme Court a copy of a certificate setting out the determination by the panel of an application for the review of a determination of a costs assessor.
Note. Section 208KJ of the Act requires a costs review panel, on making a determination, to issue to each party a certificate that sets out the determination.
26IH Circumstances in which costs review panel may not refuse
to issue certificate in respect of determination of reviewSection 208KF (4) of the Act does not apply in respect of the issue of a certificate by a costs review panel under section 208KF of the Act if the fee for the application for a review by the panel has been waived or postponed (either wholly or in part) by the proper officer of the Supreme Court.
26II Certificate of costs of review A certificate under section 208KH of the Act that sets out a costs review panel’s determination as to the costs of a review is to contain the following information:
(a) the amount of the costs of the review. (b)
a statement of any determination as to the person by whom and the extent to which the costs of the review are to be paid.
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Division 5B Reasons for determinations 26IJ Reasons for determination of costs assessor and costs
review panel
(1) This clause applies to:
(a) a statement of reasons for a costs assessor’s determination that is required by section 208JAA of the Act to accompany a certificate issued under section 208J of the Act, and (b) a statement of reasons for a costs review panel’s determination that is required by section 208KG of the Act to accompany a certificate issued under section 208KF of the Act. (2) A statement of reasons to which this clause applies must contain the following:
(a)
the total amount of costs for providing legal services determined to be fair and reasonable,
(b)
the total amount of disbursements determined to be fair and reasonable,
(c) each disbursement varied by the determination, (d) in respect of any disputed costs, explanation of:
(i)
the basis on which the costs were assessed, and
(ii)
how the submissions made by the parties were dealt with.
(3)
A statement of reasons to which this clause applies may set out such further information as the costs assessor or costs review panel concerned considers is necessary to clarify the determination of the application for a costs assessment or the review of a costs assessor’s determination.
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[5] Schedule 1 Forms
Insert after Form 2 :
Form 2A Application for review of costs
assessment
(Clause 26IB)
Legal Profession Act 1987
IN THE SUPREME COURT OF NEW SOUTH WALES
AT SYDNEY
COMMON LAW DIVISIONNo of
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Applicant
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Respondent
1 I apply to have a determination of a costs assessor reviewed by a costs review panel.
2 The determination to be reviewed was set out in the certificate(s) of determination
issued on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . by Costs Assessor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3 A copy of the certificate(s) of determination and the statement of reasons given by the costs assessor are attached to this application.
4 The grounds for making the application for review are set out in the space provided on the back of this form.
5 I certify that:
(a)
this application is made within 28 days after the issue of the certificate(s) of determination to be reviewed, and
(b) notice of this application was served on the respondent on . . . . . . . . . . . . (being not less than 7 days before this application was made).
6 An affidavit proving service of notice of this application on the respondent is attached to this application.
7 This application relates to the assessment of:
* party/party costs * practitioner/client costs * client/practitioner/client costs * practitioner/practitioner costs
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8 * I am responsible for payment / * Another person is responsible for payment of the costs the subject of the determination to be reviewed.
9 The addresses for the service of notices on the applicant and the respondent are:
Applicant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Applicant’s legal practitioner, if . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . any . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (If the application is signed by a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . legal practitioner acting for the applicant, the name, address, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . telephone and facsimile numbers
Telephone . . . . . . . . . . . . . . . . . . . . . . of the legal practitioner’s firm are to be stated) Fax . . . . . . . . . . . . . . . . . . . . . . . . . . . . Respondent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Respondent’s legal practitioner, if . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . any . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (If the respondent is represented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . by a legal practitioner, the name, address, telephone and facsimile . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . numbers of the legal practitioner’s
Telephone . . . . . . . . . . . . . . . . . . . . . . firm are to be stated) Fax . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Date:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Applicant
(or Applicant’s legal
practitioner)
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This form is to be filed in triplicate
* Cross out whichever is inapplicable
The grounds for making the application for review are as follows:
BY AUTHORITY
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