A great question, and one we are frequently asked by our practitioner clients. The answer depends on the state governing the fee agreement between the practitioner and their client.

In Victoria, the Magistrate’s and County Courts are generally a better choice to recover fees (merely as payment of a debt) if quantum is not an issue. This is because these Courts won’t look at the validity of the costs agreement, unless the client raises this as an issue. These courts will most likely refer the matter to the Costs Court if validity is in issue.

The process in the Costs Court is similar to all other states other than NSW and Qld, and generally proceeds as follows:

1. A request for an itemised bill is made by the client.
2. The whole file is sent to a costs lawyer for preparation of a bill in taxable form.
3. Once the bill is prepared it is provided to the client for payment.
4. If the client still disputes the fees, they can issue a Summons in the Costs Court. The legal practice can also do this 30 days after issuing the bill.
5. The matter is then listed for callover, at which time a timetable will be set for a preliminary hearing (if, for example, the validity of the costs agreement is in question), or mediation.
6. If the costs remain in dispute following mediation, the matter will be listed for taxation, which will proceed with or without the client’s objections.
7. Following taxation, the Court will issue an Order directing costs payable in the taxed amount.

In NSW the procedure differs. Here:

1. A request for an itemised bill is made by the client.
2. The whole file is sent to a costs lawyer for preparation of a bill in taxable form.
3. Once the bill is prepared it is provided to the client for payment, along with an Application for Assessment.
4. If the matter remains in dispute, the legal practice can file the application (with the bill) 30 days after issuing the bill.
5. The matter is then referred to one of around 50 court-appointed costs assessors (usually within 4-6 weeks), who then directs conduct of the costs assessment with or without the client’s objections.
6. The costs assessor ultimately issues a Certificate of Determination of Costs and a Certificate of Determination of Costs of Assessment

In Queensland, the process is similar to the steps in NSW, but there the parties generally reach agreement on which of around 50 court-appointed costs assessors should be appointed. Should the parties fail to agree on which costs assessor to appoint, the Court will select appointment. Here:

1. Request for an itemised costs statement is made.
2. Whole file is sent to a costs lawyer for preparation of a costs statement in taxable form.
3. Once prepared, the costs statement is provided to the client for payment.
4. Mediation should be attempted!
5. An Application for Costs Assessment (UCPR 1999, Form 60) is filed, commencing the formal assessment process.
6. A Costs Assessor is appointed, noting the Application and Affidavit must be served upon the other party within 7 days of it being filed in Court. Other documents may need to be filed pursuant to s.339 LPA 2007. The court that will appoint the cost assessor depends on the amount of the legal bill. The parties usually agree on a costs assessor (one of approx. 55 currently) and, if agreement is reached, the parties file a Consent Order with the registry. If the parties fail to agree upon a costs assessor, application is referred to the court for a directions hearing where the Court will appoint one. In practice, Courts usually disapprove of situations where this has happened given that there are a range of assessors to choose from.
7. The Costs Assessor generally determines the procedure for the assessment and considers a range of factors including:
   1. Reasonableness of the costs claimed;
   2. Relevant costs agreements;
   3. Compliance with rules relating to the Legal Profession Act 2007;
   4. Disclosure of costs;
   5. Skill, labour and responsibility displayed by the solicitor;
   6. Complexity, novelty or difficulty of the matter;
   7. Where the work was undertaken and the circumstances in which the legal services were provided e.g. capacity of the client, conduct of the opposing party, demands from the client etc.
8. After the Costs Assessor completes the assessment, (s)he files a certificate of assessment with the registry within 14 days after the assessment and gives a copy to the parties.
9. The parties or the court can then bring the matter on for a directions hearing. The court resolves any matters still in dispute and considers the costs assessor’s certificate in its judgment.

The processes differ from state to state.

Victoria, with its dedicated Costs Court, tends to be the most efficient state for fee recovery, often taking as little as 3 months from engagement of a costs lawyer to obtaining an Order directing costs payable as taxed.

NSW tends to take much longer for resolution of practitioner/client disputes. It can often take 6 months and, in many cases, as much as 12 months from engagement of a costs lawyer to obtaining a Certificate of Determination quantifying costs assessed as fair and reasonable.

The other states tend to fall within these two extremes, with Queensland being a relatively efficient state, but timeframes there are dependent on which Court-appointed costs assessor is engaged by the parties.

Taking less than a quarter of the time required to draft a Bill of Costs, and at a fraction of the price of an itemised bill or costs statement, Blackstone’s Assessment Program may be better alternative to practitioners seeking recovery of their client’s Court-ordered costs than having a fully itemised bill or costs statement prepared.

For details on time and costs savings, contact us via the form below.

Costs Statements (as they are known in Queensland) and Bills of Costs (as they are generally known elsewhere) set out details of costs sought. They should include sufficient information for a costs assessor or taxing master to determine the reasonableness of claimed costs, without having to resort to underlying documents in the proceedings.

Providing just the right amount of information is an art. Too much information makes the preparation a Bill of Costs or Costs Statement, and their consideration on taxation or assessment, expensive and cumbersome. Too little information may lead to a disallowance, with attendances disallowed on relevance grounds, or because costs claimed appear excessive for the work carried out as described.

Whether you have successfully obtained a costs order on behalf of your client, or you have a client who is disputing your fees, Blackstone makes the costing of your file easy and painless.

Simply forward your file to one of our three CBD offices in Sydney, Melbourne or Brisbane with a brief letter of instructions requesting our assistance. We will review your file within 24 hours of receipt and advise you of all steps required to ensure your file is costed efficiently, with the fullest costs recovery in mind.

Practitioners have obligations under their relevant Legal Profession Act or under the Uniform Law to provide a Bill of Costs or Costs Statement, usually within 28 days of a client’s request.

So, if you have been requested by a client to provide an itemised account, remember that you are obliged to prepare one, and that Blackstone Legal Costing can work within almost any deadline.

If your client has the benefit of a costs order, if the order relates to an interim step in the proceedings (such as costs of an application seeking orders relating to discovery), and the order states that the costs are payable forthwith, your client is entitled to have those costs assessed immediately.

In all other cases your client will normally need to obtain final orders as to costs before embarking on the costs recovery process.

For advice on your own circumstances, contact us through the form below. We will walk you through all steps needed to recover entitlements at the earliest possible time.

Litigation continues to become more and more expensive, and, since 2017, Blackstone has seen marked increases in the number and value of applications seeking security for costs in all states and territories throughout Australia.

Blackstone lawyers are experts in what constitutes reasonable costs incurred in complex commercial litigation. As advisors to some of Australia’s largest litigation funders on future costs budgeting, we routinely provide both contested and uncontested evidence setting out anticipated costs for use in security for costs applications, at state and federal level.

Blackstone’s specialist teams in Queensland, New South Wales and Victoria are available at any time to provide expert evidence either in support of or opposing applications seeking security for costs. Simply contact us via the form below.

The rise of legal costs budgeting is a recent phenomenon in Australia. Originating in the United Kingdom, Lord Jackson’s reforms to the legal costs regime promoted budgeting of costs in every litigated matter.

Here, Australia’s courts are now increasingly following suit, routinely directing parties to set out the anticipated costs of proceedings.

This has significant benefits to parties in litigation, enabling all involved to have a clear understanding about the possible costs consequences of proceeding with a prosecution or defence action.

With twenty years’ experience providing evidence in support of, or opposing, security for costs applications, Blackstone is uniquely placed to assist when your client is directed to file a legal costs budget as part of their responsibilities to the court.

Do you know what your costs are really worth on a party/party basis?

On a fair and reasonable basis, most of our clients underestimate what their file is worth.

Others have unrealistically high expectations, in which case they may be jeopardising a sensible settled outcome for their clients.

If you have a costs order on behalf of your client, we recommend sending the file to a legal costs specialist firm like Blackstone, with a simple letter of instruction requesting your client’s costs be recovered.

We take over from there.

What should you send with your file? In short, everything. A costs lawyer requires the whole file, including:

The power to order a specified gross sum for costs arises under s 98(4)(c) of the Civil Procedure Act 2005 NSW. Similar provisions exist in every state and territory, as well as in the Federal Court.

The principles relevant to the exercise of the discretion to make such an order were considered by Justice Einstein in Idoport Pty Limited v National Australia Bank Limited and Ors, Idoport Pty Limited v Donald Robert Argus [2007] NSWSC 23 (6 February 2007).

The rule’s purpose is to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation.

The order requires that the Court be confident that the approach taken to estimate costs is logical, fair and reasonable; and that it can sufficiently arrive at an appropriate sum on the materials available.

A gross sum assessment, by its very nature, does not envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place, and the approach taken must be logical, fair and reasonable.

In short, applications for costs in a fixed amount often fail without expert assistance. If all the circumstances warrant such an order, however, they are generally obtained.

Should you be considering such an application, contact Blackstone Legal Costing via the form below, and we will walk you through the process and its hurdles.