EXPLANATORY STATEMENT
FAMILY LAW ACT
FAMILY LAW RULES (AMENDMENT)
STATUTORY RULES NO. 15 OF 1987
Section 123 of the Family Law Act 1975 empowers the Judges, or a majority of them, of the Family Court of Australia and the Family Court of Western Australia to make Rules of Court on a number of matters relating to the practice and procedure of Courts exercising jurisdiction under the Act.
A majority of these Judges have made Statutory Rule No. of 1987 to effect some changes to the existing Family Law Rules. These changes are to operate from 9 February 1987.
The Rules introduce a new procedure which allows the Court to deem the day on which a document was served and provide for inspection of documents after the serving of a notice of request for the same. In addition, the statutory Rules amend the Family Law Rules to Introduce a new costs order that regulates costs and the assessment of same, both between party and party, and between a solicitor and his client. The Statutory Rules also increase by 3.4% the costs solicitors may, subject to an agreement between solicitors and the clients to the contrary, charge for proceedings under the Act. The 3.4% increase is consistent with the recommendation of the Federal Costs Advisory Committee in September 1986 that there be an increase of this level for solicitors’ costs in family law matters.
CHANGES BROUGHT ABOUT BY THE STATUTORY RULE NO. 1987
Sub-rule 15(3) of Order 18 provides that where a party has been personally served with a document and that service is acknowledged in the Notice of Address for Service, the said document will be deemed to have been served on the day of the filing of the Notice of Address for Service.
Rule 10 of Order 20 is repealed and has been replaced with a new Rule 10. The new Rule provides not only for inspection of documents produced pursuant to an order but also allows for inspection of certain documents upon the serving of a Notice of Request on the party who has possession of the document.
Order 38, which relates to costs, is repealed and replaced with a new Order 38. The Rules included in this new order provide for the following:-
Rule 1 contains definitions which are necessary for the Interpretation of Order 38.
Rule 2 makes it clear that the provisions of Order 38 apply and regulate all costs whether between party and party or solicitor and client.
Rule 3 ensures that a solicitor is not able to charge for work done any amount in excess of that provided by this Order except where there is an order of the Court so permitting or where the work involved in the matter is covered by Rules 7 and 8. Subject to the exceptions, this Rule limits costs a solicitor may charge to those costs set out in Order 38.
Rule 4 provides for a basic composite amount that may be charged for costs in relation to undefended proceedings for a Decree of Dissolution of Marriage.
Rule 5 allows for a charge in addition to the basic composite amount in the circumstances set out.
Rule 6 regulates the costs that can be charged where proceedings of the kind referred to in Rule 4 are settled or discontinued prior to the hearing.
Rule 7 is one of the exceptions referred to in Rule 3 and allows for an extra amount to be charged in the circumstances set out.
Rule 8 is also an exception to Rule 3. This Rule allows a solicitor to enter into a costs agreement with his client. The costs agreement will provide for special rates (usually much higher than the rates set out in Order 38). Before entering into such an agreement this Rule requires a solicitor to provide the client with a copy of the pamphlet referred to. This pamphlet summarises the main effects of Order 38. In addition the solicitor is required to advise the client prior to entering into the agreement of the availability of independant legal advice.
Rule 9 is designed to ensure that the Rules cannot be abused by filing separate applications and incurring separate sets of costs when all relief sought could have been included in one application.
Rule 10 ensures that work done by partners and employed solicitors and other employees may be charged at the specified rate.
Rule 11 limits the amount that may be charged for waiting at and travelling to and from Court in relation to the attendance at Court for the purpose of hearing of proceedings.
Rule 12 ensures that where a solicitor employs an agent, costs are not increased by that fact.
Rule 13 requires that for counsel fees to be allowed as disbursements certain conditions must be met. These conditions are:
- either that the Court has certified, or the party who is liable to pay the costs of the party on whose behalf counsel was briefed accepts, that the briefing of counsel was reasonably required; and
- that counsel’s fees are fair and reasonable.
Rule 14 allows solicitors to be re-imbursed for acting as counsel in proceedings if the same conditions as required in Rule 13 are satisfied.
Rule 15 applies to solicitor and client costs. This Rule allows for counsel fees to be allowed as disbursements if either the Court has certified that the briefing of counsel was reasonably required or the client has requested it in writing and, in addition, counsel’s fees are fair and reasonable.
Rule 16 also applies to solicitor and client costs. It allows solicitors to be re-imbursed for acting as counsel in the proceedings if the same conditions as required in Rule 15 are satisfied.
Rule 17 provides that witness fees will be a disbursement if the attendance was reasonably required and the rate is in accordance with the relevant Supreme Court scale.
Rule 18 provides for time limits for the filing of an application for costs pursuant to sub-section 117(2) of the Act.
Rule 19 provides the Court with a number of options where it proposes to make an order for costs. The Court may obtain an estimate of the costs from the party in whose favour the order is to be made and make its own assessment of the costs. It may order that the costs be taxed by the Registrar. The Court has the power to give direction to the Registrar in respect of a taxation and in making an order under sub-section 117(2) the Court may specify terms and conditions relating to the payment of costs.
Rule 20 provides that costs may be awarded at any stage of proceedings and that costs awarded at any time prior to the conclusion of a case may be ordered to be paid forthwith.
Rule 21 ensures that where the Court orders unqualified costs to be paid, the order is taken to import an entitlement to costs as taxed by the Registrar under the Rules. This Rule also enables the Court to order that a person be paid only a proportion of the taxed costs, taxed costs from and up to a certain stage in the proceedings, a gross sum instead of taxed costs or an amount in respect of costs determined in a manner directed by the Court.
Rule 22 ensures that where proceedings have been transferred from one Court to another or in proceedings on an appeal to the Court, the Court has power to order costs in relation to the entire proceedings notwithstanding that some of the proceedings were before another Court.
Rule 23 ensures that where costs are payable, the costs may be taxed even though there is no order directing taxation.
Rule 24 provides for a taxation hearing. Wherever costs have been ordered or fees are payable and are to be recovered or to be the subject of a taxation, the solicitor or party entitled to costs is to file a Bill of Costs. Upon filing, an appointment for taxation will be given not less than 14 days ahead and the appointment will be endorsed on the Bill. The endorsed Bill will be served on all persons affected by the taxation. After the taxation hearing the taxing officer will assess the proper amount to be paid and issue to each party to the taxation an assessment specifying this amount.
Rule 25 sets out some limitations with respect to the briefing of counsel in relation to costs taxed between party and party.
Rule 26 enables refresher fees to be allowed.
Rule 27 ensures that counsel’s fee on the brief shall not be allowed unless counsel was present at the hearing for a substantial amount of the first day, or gave substantial assistance during the first day, in the conduct of the proceedings, or the Court otherwise orders.
Rule 28 sets out the principles a taxing officer should take into account when taxing a Bill of Costs. The Rule summarises the principles set out in the leading cases on taxation of costs.
Rule 29 provided that coats improperly, unreasonably or negligently incurred should be disallowed. It also allows the Court to make an order of costs against the party whose costs were disallowed in favour of other parties to the proceedings.
Rule 30 sets out various powers of the taxing officer in respect of the conduct of proceedings for taxation.
Rule 31 appoints Registrars and Deputy Registrars as taxing officers and provides for the referral of questions arising out of the taxation to the Court.
Rule 32 sets out the particulars that should be included in a Bill of Costs.
Rule 33 deals with the notice that is to be given when a taxation hearing is adjourned.
Rule 34 gives the taxing officer certain powers to deal with the situation where a party entitled to costs unreasonably refuses or rejects to file a Bill of Costs or to have a bill taxed.
Rule 35 vests in the taxing officer those powers set out in Rule 34 where a party in taxation proceedings is guilty of neglect or delay or puts the other party to unnecessary or improper expenses.
Rule 36 sets out the general provision that the taxing officer shall allow all costs which appear to him to have been necessary or proper for the attainment of justice. Some costs, however, are expressly excluded.
Rule 37 gives the taxing officer the discretion to allow such sum as he thinks just and reasonable for work properly performed but for which there is no provision in Schedule 2.
Rule 38 provides for the first time for a Notice of Rights which advises the client that he can request a detailed statement of account and dispute part or the whole of the account. The Rule also provides that an action to recover costs shall not be commenced by a solicitor until:
- the client has boon served with an account (or a detailed account where this has been requested) and a Notice of Rights in relation to the account;
- the expiration of 35 days after the Notice of Rights has been served; and
- any Notice Disputing Costs has been dealt with.
A person charged with costs has 28 days after the service of the Notice of Rights upon him to file a Notice Disputing Costs and requiring the costs to be taxed. The Rule expressly allows a legal practitioner to amend an account for costs without leave at any time prior to the commencement of the taxation hearing.
Rule 39 allows the Court to order a solicitor to pay the costs of the parties where as a result of his neglect to attend, or have someone attend on his behalf, or to have a necessary document available for the use of the Court, a hearing cannot conveniently proceed. The Rule also provides that where a solicitor is guilty of delay or misconduct and costs are awarded against his client, the Court is able to order the solicitor to repay to his client those costs ordered to be paid by his client as a result of such misconduct or delay.
Rule 40 provides that where a party to the taxation objects to the decision of the taxing officer, he may apply to the taxing officer to reconsider the decision. The objecting party is required to file a Statement of Objection which will specify the matters objected to and the basis for each objection.
Rule 41 requires the taxing officer, where an application is made under Rule 40, to reconsider his decision. Upon request, the taxing officer will provide reasons for the decision made on reconsideration. Unless otherwise directed by the taxing officer, on the reconsideration a party is not permitted to raise any objection not specified in the Statement of Objection.
Rule 42 requires the taxing officer to issue a Certificate of Taxation either after the period referred to in sub-rule 40(3) has expired or when he has reconsidered the decision. The Rule provides for enforcement of the payment of the amount specified in the Certificate of Taxation.
Rule 43 provides that an appeal against a decision of a taxing officer shall be by a review conducted by a Judge or Magistrate. A party will not be able to seek a review until there has been reconsideration by the taxing officer pursuant to Rule 40. In general, parties to the review will not be permitted to introduce new evidence or raise objections not already stated in the Statement of Objection or raised before the taxing officer.
Rule 44 makes it clear that interest will be payable on outstanding costs.
Rule 45 provides that this order applies notwithstanding that the account has been paid.
Schedule 1 amends the existing Schedule 1 to the Family Law Rules to provide new forms for Assessment of Costs, Notice Disputing Costs and a Certificate of Taxation of Costs.
Schedule 2 provides a new Schedule 2 (Scale of Costs) to the existing Family Law Rules.