Costs Assessment - Frequently Asked Questions and Information
These questions represent those most commonly asked of the Costs Assessment section in relation to costs assessments. While every care is taken with the responses and the information provided they are of a general nature and should be taken as a guide only.
IMPORTANT POINTS
The Costs Assessment Scheme and its processes are not court proceedings in the Supreme Court.
There are no hearings involved in the administration of the Costs Assessment Scheme. The Uniform Civil Procedure Rules 2005 and other rules of court do not apply to the administration of the scheme.
Costs Assessors are not officers of the Supreme Court.
The Manager, Costs Assessment exercises the duties, obligations and functions conferred to the position under the Legal Profession Act 2004 and the Legal Profession Act 1987.
The duties, obligations and functions of the Manager, Costs Assessment cannot be delegated to or taken on by another person and must be exercised by the person in the position at the time or acting in the position.
Division 11 of Part 3.2 of the Legal Profession Act 2004 and the Legal Profession Regulation 2005 apply to:
1. party/party applications for costs assessments; and
2. applications for costs assessments made by clients or legal practitioners where the instructions were given after 1 October 2005.
Part 11, Division 6 of the Legal Profession Act 1987 and the Legal Profession Regulation 2002 or the Legal Profession Regulation 1998 apply to applications for costs assessments made by clients or practitioners where the client gave instructions to the legal practitioner before 1 October 2005.
For more information concerning which legislation applies to an application refer to clause 18 of Schedule 9 of the Legal Profession Act 2004.
The Costs Assessment Scheme does not have jurisdiction to deal with costs orders made by the Federal Court of Australia (refer to Order 62 of the Federal Court Rules).
The Costs Assessment Scheme does not have jurisdiction to deal with Family Court matters where the instructions were given to the legal practice prior to 30 June 2008.
1. Who can apply for an assessment of costs?
A client of a law practice may apply for an assessment of costs.
Third Party Payers – see section 302A of the Legal Profession Act 2004
Law Practices retaining other Law practices on behalf of clients.
Law Practices who have given a bill of costs.
Parties to a court or tribunal case where a costs order has been made.
See Appendix A below for time limits, applicable sections and forms.
2. How do you make an application and what are the fees?
An application must be made in accordance with the regulations (if any) and accompanied by the fee prescribed by the regulations.
Generally an applications is made by completing the approved form, complying with the time limits as per Appendix A, attaching the documentation required or any supporting documentation that you wish to add, filing the application with the Registry of the Supreme Court on level 5, in triplicate (please keep a copy for yourself) and payment of the filing fee.
More information concerning what is required for an application is set out in the cover pages of the forms.
Go to the link titled “Forms and Fees” to obtain the Schedule of Fees for Costs Assessment Applications and to obtain copies of the approved forms for a making applications for assessments.
If you are unable to pay the fee, you may apply to the Manager, Costs Assessment to waive or postpone the fee. The Supreme Court form “Application to postpone, remit or waive payment of court fee” may be used and sent to the Manager, Costs Assessment.
Important notes:
Ensure you have identified and used the correct names of the parties in the application.
Failure to properly identify the parties may hold up the application if an amendment is necessary. Costs Assessors cannot amend applications. An amended application must be made to the Manager, Costs Assessment.
Failure to properly identify the parties may have consequences when you attempt to register your certificates (see below). If the correct person or entity is not identified in your application you may have difficulties in filing the certificates and enforcing any judgments.
Ensure your application complies with the time limits and within the limitation periods that apply – see appendix A. If you application does not comply with the time limits or is out of time, there will be no jurisdiction for an assessment. Where applicable, time to file an application may be extended by the Supreme Court or the Manager, Costs Assessment – see appendix A.
Ensure that party/party applications are not filed within 21 days of being sent to the costs respondent – see clause 125 of the Legal Profession Act 2005. Failure to ensure that 21 days has passed before filing will mean that there is no jurisdiction for the assessment to proceed as the application has not been made properly.
3. What happens once an application is made?
The procedure for dealing with an application is set down by the Legal Profession Regulation 2005 for:
1. party/party applications; and,
2. applications involving legal practitioners as parties where the instructions were given after 1 October 2005.
The procedure for dealing with an application involving legal practitioners as parties where the instructions were given before 1 October 2005 is set down in the Legal Profession Regulation 2002 and/or the Legal Profession Regulation 1995.
In the case of a party/party application it will be referred to a Costs Assessor as soon as practicable after it is filed.
In the case of a client/practitioner application, as objections are made in the application, the practitioner will be given 21 days to provide a response. After 21 days have passed, whether a response is received by the Manager or not, the Manager, Costs Assessment will refer the application to a Costs Assessor as soon as is reasonably practicable.
In the case of a practitioner/client application, the client will be given a copy of the application and allowed 21 days to lodge objections. If no objections are lodged, the Manager, Costs Assessment will refer the application to a Costs Assessor as soon as is reasonably practicable.
If objections are lodged, the practitioner will be given 21 days to provide a response. After 21 days have passed, whether a response is received by the Manager or not, the Manager, Costs Assessment will refer the application to a Costs Assessor as soon as is reasonably practicable.
In all cases, if objections or responses are lodged after the time stipulated by the regulations, the Manager, Costs Assessment will forward them onto to the Costs Assessor.
Please note there is no form for objections or responses. You may lodge them in writing with any other documents you wish to include.
4. How is an application referred to a Costs Assessor?
The Manager, Costs Assessment is to refer applications for assessment of costs to the most suitable Costs Assessor having regard to the following:
(a) the availability of costs assessors,
(b) the nature of the matter,
(c) in the case of an assessment of party/party costs—the jurisdiction of the court or tribunal in which the order for costs was made,
(d) the location of the parties and the Australian legal practitioners acting for the parties concerned,
(e) the avoidance of conflict of interests of costs assessors.
A Costs Assessor who has an interest in an application must, as soon as practicable after becoming aware of that fact, refer the application to the Manager, Costs Assessment for referral to another Costs Assessor.
If the Manager, Costs Assessment is satisfied that it is inappropriate for a Costs Assessor to determine a particular application that has been referred to the Costs Assessor, the Manager, Costs Assessment may:
(a) revoke the referral of the application, and
(b) refer the application for assessment to another Costs Assessor.
You may request the Manager to revoke a referral and any such request must be made in writing setting out the reasons, which may include any of the above. You must sent a copy of any such request to the other party. The Manager may allow submissions from both parties and the assessor to be made prior to making a determination.
Where ever possible, the Manager, Costs Assessment will refer related applications, particularly those involving the same parties or the same matters, to the same Costs Assessor. You may make a request to the Manager, Costs Assessment to refer an application to a Costs Assessor who is already handling a related application, either before it is referred or after if it is referred to another Costs Assessor.
Once an application to a Costs Assessor is referred the Manager does not have any role within the assessment.
5. Can I get an extension to lodge my objections and responses?
No.
The Regulations concerning the procedure for dealing with applications by the Manager are mandatory and must be followed. If objections and responses are not lodged as required the Manager will refer applications to a Costs Assessor as soon as is reasonably practical.
Any requests for extensions will be passed onto the Costs Assessor for their consideration.
Any objections or responses that are duly lodged after they are due will be forwarded to the Costs Assessor assigned the application.
Once notified of the request for an extension, Costs Assessors are required to give parties a reasonable opportunity to make written submissions, which may include objections and responses to objections.
6. How is a costs assessment conducted?
Costs assessments are not a proceeding in the Supreme Court. Costs Assessments are conducted on the papers by the parties corresponding with the Costs Assessor as directed.
Costs Assessors generally will not communicate directly with the parties and will communicate in writing with both parties at the same time.
You must communicate with the Costs Assessor as he or she directs. The Costs Assessment Section will not provide you with any other contact information other than in the notice of assignment.
The Costs Assessor is required to give the parties a reasonable opportunity to make submissions. The parties are also to comply with the notices and directions of a Costs Assessor. The Costs Assessor may require a party to provide particulars or produce documents. The Costs Assessor receives documentation and submissions, assesses the costs and then issues certificates of determination of the costs and a statement of reasons.
Failure by a party to comply with the directions of a Costs Assessor may result in the Costs Assessor declining to deal with the application. Alternatively, the Costs Assessor may continue to deal with the application on the basis of the information provided.
Failure by a party to complay with the direction of a Costs Assessor may be an offence punishable by a fine.
Failure by a legal practitioner to comply with the directions of a Costs Assessor without reasonable excuse is capable of being professional misconduct.
7. What are certificates of determination?
In a practitioner/client or client/practitioner application, a Costs Assessor will issue a certificate of determination for a bill of costs by either confirming the bill or substituting the amount of costs in the bill for an amount that in the Costs Assessor’s opinion is fair and reasonable.
In a party/party application a Costs Assessor will issue a certificate of determination of the fair and reasonable amount of costs to be paid as the result of a court or tribunal order.
8. What are certificates of the costs of the costs assessment?
In a practitioner/client or client/practitioner application, a Costs Assessor may issue a certificate of determination for the costs of the costs assessment. If a certificate for the costs of the costs assessment is not issued the Costs Assessment Scheme will pay for the costs of the costs assessment.
In a party/party application a Costs Assessor will issue a certificate of determination for the costs of the costs assessment.
Where a certificate for the costs of the costs assessment is issued, the Costs Assessor will determine which party is to pay the costs of the costs assessment.
The party liable for the costs of the costs assessment is to pay the amount in the certificate to the Manager, Costs Assessment.
If the costs of the costs assessment are not paid, the Manager, Costs Assessment may take action to recover the costs of the costs assessment.
9. How long does an assessment take?
There is no set time. The Manager, Costs Assessment does not direct Costs Assessors to complete assessments within any time frame.
The time taken for each costs assessment depends upon the nature of the application and the conduct of the parties. Costs Assessors may indicate to the parties that they will set a timetable and a timeframe when corresponding with the parties.
The Manager, Costs Assessment monitors the status and number of outstanding assessments.
10. What can you do if you are concerned that the assessment is taking too long or the Costs Assessor does not reply to your correspondence?
You may make an enquiry of the Costs Assessor requesting an estimate of the completion date.
If you are concerned at raising such a request with the Costs Assessor, you may contact the Manager, Costs Assessment to make a request for your query to be raised with the assessor independently.
The Manager will contact the Costs Assessor and advise that a party has expressed concern at the delay and/or requested an estimate of completion time and then allow the Costs Assessor an opportunity to respond to the query to both parties.
If any delay continues, you may contact the Manager again who will investigate the delay as a complaint and take action if necessary.
11. What happens if the parties settle and agree on the costs?
Immediately inform the Manager, Costs Assessment if the application has not been referred. Usually the application may be withdrawn or finalised with no further action.
If it has been referred to a Costs Assessor, inform the Costs Assessor immediately.
Both parties are to confirm the settlement and its terms. If they wish to indicate to the Costs Assessor the agreed amount and how to deal with the costs of the costs assessment, they may do so and request that the Costs Assessor include those amounts in the certificates of determination.
The costs of the assessment are still payable if the parties settle and the Costs Assessor will determine who is liable for them when a certificate of the costs of the costs assessment is issued.
12. What does a Costs Assessor do once his determination is complete?
A Costs Assessor is required inform the parties that the determination has been made and forward the certificates of determination and statement of reasons to the Manager, Costs Assessment.
Once the Costs Assessor completes their functions they have no further role and will not continue to determine or re-determine an application.
All further correspondence concerning the application should be sent to the Manager, Costs Assessment.
13. Who pays for the certificates?
If the Costs Assessor issues a certificate for the costs of the costs of the costs assessment, the Costs Assessor will advise the parties that the certificate has been so forwarded to the Manager, Costs Assessment and will be available to the parties on payment of the costs of the costs assessor.
Please allow seven days for the certificates and reasons to be forwarded and processed by the Court following notification.
The Manager, Costs Assessment will in most cases issue an invoice to the costs applicant for the costs of the costs assessment. An invoice will be sent to the costs respondent when a law practice is the respondent and is liable for the costs of the costs assessment.
However, the Manager, Costs Assessment will accept payment of the amount in the certificate by either party. Any party may request and invoice for payment.
Payment by bank cheque, company cheque or money order, made payable to “The Supreme Court of NSW”, may be made in person on Level 5 of the Supreme Court building or by post to GPO Box 3, SYDNEY NSW 2001.
Payment by credit card may be made by telephone on 1300 679 272.
Upon receipt of payment of the amount of the costs of the costs assessment in the certificate, the Manager will release the certificate of determination and the reasons to the parties.
If the amount is not paid, the Manager, Costs Assessment may recover the amount in the certificate from the party liable to pay it as a debt.
14. Can the Manager, Costs Assessment release the certificates without prior payment?
If the Costs Assessor does not issue a certificate for the costs of the costs assessment the certificates will be released to the parties without any need for payment.
If the Manager, Costs Assessment waived or postponed the filing fee for the application, the certificates will be released without the need for prior payment, however, the party determined to be liable for the costs of the costs assessment will still be required to pay the amount.
Otherwise, the Manager, Costs Assessment cannot waive or postpone the costs of a costs assessment, but has a discretion to release the certificates without payment.
A party may make an application to the Manger, Costs Assessment to release the certificates without prior payment. An application must be made in writing and set out the reasons for releasing the certificate. The Supreme Court form “Application to postpone, remit or waive payment of court fee” may be used and sent to the Manager, Costs Assessment.
If the Manager, Costs Assessment determines to release the certificates without prior payment, the party determined to be liable for the costs of the costs assessment will still be required to pay the amount.
15. What if there is an error in the certificates?
If there is an inadvertent error in a certificate it may be amended by the Costs Assessor.
A party seeking an amendment may contact the Costs Assessor directly to request an amendment of an inadvertent error. The Costs Assessor will consider the request. If the Costs Assessor determines to re-issue a certificate the Costs Assessor will send it to the Manager, Costs Assessment who will then forward it onto the parties.
16. Can I file the certificates as a judgment?
Yes See the Guide to Registering a Costs Assessors’ certificate.
*Please note that any information contained on this website is intended as a guide to the law and should not be used as a substitute for legal advice
Appendix A
Costs Assessment - Time Limits Legal Profession Act 1987 - Division 6 - Instructions given prior to 1 October 2005
| Section/Application/Form | Time |
Section 199
Client or Third Party Payer
To lodge a Client/Practitioner Application
Form 1 | If the costs are unpaid, no time limit.
If costs partly or wholly paid, 12 months. |
Section 200
Law Practice retaining another law practice on behalf of a client
To lodge Instructing Practitioner/Retained Practitioner or Retained Practitioner/Instructing Practitioner Application
Form 2 | Within 30 days after bill was given or within such time as the Manager, Costs Assessment may allow.
Applications to extend time to the Manager, Costs Assessment are to be made in writing. |
Section 201
Barrister or solicitor giving a bill
To lodge a Practitioner/Client Application.
Form 2 | After 30 days have passed since bill was given; request for payment was made; an application made by another person in respect of the legal costs. |
Costs Assessment - Time Limits Legal Profession Act 2004 - Division 11- Instructions given after 1 October 2005
| Section/Application/Form | Time |
Section 350
Client or Third Party Payer
To lodge a Client/Practitioner Application.
Form 1 | Within 12 months after bill was given or request for payment was made to client or third party payer
An application may be dealt with if by the costs assessor if the Supreme Court, on application by the costs assessor or the client or third party payer who made the application for assessment, determines, after having regard to the delay and the reasons for the delay, that it is just and fair for the application for assessment to be dealt with after the 12-month period.
Application for assessment to be dealt with after 12 months is to be made to the Supreme Court by way of filing a Summons in the Supreme Court Registry with the filing fee. The Summons is to be filed in the Common Law Division.
Evidence in support of the application is usually required by way of affidavit.
Form for Summons and affidavit are available on Supreme Court website. |
Section 351
Law practice retaining another law practice on behalf of a client
To lodge Instructing Practitioner/Retained Practitioner or Retained Practitioner/Instructing Practitioner Application.
Form 2 | Within 60 days after bill was given or request for payment was made or costs paid. |
Section 352
Law Practice giving a bill
To lodge a Practitioner/Client Application
Form 2 | After 30 days have passed since bill was given; request for payment was made; an application made by another person in respect of the legal costs. |
Section 353
To Lodge a Party/Party Application.
Form 3 | No time limit. |
