ByLawyers News and Updates

101 Costs Answers – ALL STATES

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101 Costs Answers is the latest addition to the By Lawyers ‘101’ series of helpful reference materials.

Located in the Reference materials folder on every By Lawyers matter plan, this publication contains valuable commentary and precedents on all aspects of legal costs.

The precedents include all of the By Lawyers costs agreements/client services agreements and costs disclosures, drawn together from all By Lawyers publications into a convenient single publication.

The By Lawyers costs agreements are compliant with the strict requirements of the various state laws. They cater for all areas of law, with detailed recitals of the scope of work usually undertaken in each type of matter. This not only defines the retainer but makes it easy for practitioners to produce documents quickly upon engagement.

The 101 Costs Answers commentary includes:

Disclosure requirements

The commentary helps practitioners to navigate some of the more complicated disclosure requirements including regulated costs and the specific obligations for different types of litigation matters. The effect of non-disclosure is also covered.

Disbursements

Commentary on defining and recovering disbursements includes relevant case law and examples. The By Lawyers costs agreements are drafted to clearly identify usual disbursements.

Counsel’s fees

The commentary deals with the contractual relationship between solicitors and barristers as well as disclosure requirements. With the solicitor responsible for payment of counsel’s fees regardless of the solicitor’s agreement with the client, the By Lawyers costs agreements include counsel’s fees as specific disbursements which the client is obliged to pay.

Debt recovery

Where debt recovery is necessary, 101 Costs Answers contains letters of demand and example pleadings to assist with the recovery of costs. There is also detailed commentary on costs assessment procedures and the relevant forms for each state are available on the matter plan.

Like all By Lawyers publications, 101 Costs Answers contains interactive links to relevant legislation and cases, which are always kept updated.

Motor Vehicle Accidents – NSW

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The Costs section in the By Lawyers Motor Vehicle Accidents From 1 December 2017  guide has been reviewed and enhanced.

The By Lawyers NSW Motor Vehicle Accident publication contains two separate guides – one for motor vehicle accidents which occurred before 1 December 2017, another for motor vehicle accidents which occurred from that date. This reflects the two separate statutory schemes which apply.

The Costs section of the matter plan and commentary has been re-organised with new sub-headings for improved searchability and additional content. Enhancements include:

  • Restrictions on costs generally clarified and emphasised, given their significance to practitioners for claims under the Motor Accident Injuries Act 2017;
  • Costs in statutory benefits claims – maximum allowances for work relating to each of the three types of disputes in statutory benefits claims – merit, medical and miscellaneous;
  • Costs in common law claims – the allowable costs for common law claims divided into stages of the matter now listed in the commentary;
  • Contracting out of the maximum costs provisions, with commentary on the restrictions that apply;
  • Addition of the recent case AAI Limited trading as GIO v Moon [2020] NSWSC 714 on the ability of the Dispute Resolution Service to award costs above the maximum in certain cases;
  • Payment – how a practitioner submits a tax invoice to the insurer; and
  • Costs disclosure to SIRA – lawyers representing claimants are required to provide SIRA with a breakdown of the costs charged to the client at the end of the matter.

This review is part of By Lawyers continuing commitment to enhancing our content and helping our subscribers enjoy practice more.

Motor vehicle accidents – NSW

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The statutory scheme for motor vehicle accidents in NSW varies depending upon whether the accident occurred before or after 1 December 2017. The Motor Accidents Compensation Act 1999 applies to accidents before that date. The Motor Accident Injuries Act 2017 applies to accidents that occurred after that date.

A new Motor Accidents Compensation Regulation 2020 commenced on 1 September 2020. It repeals and replaces the Motor Accidents Compensation Regulation 2015. These regulations are under the Motor Accidents Compensation Act 1999 – that is, they relate to claims for motor vehicle accidents which occurred BEFORE 1 December 2017.

By Lawyers Motor vehicle accidents publication has two separate guides to assist practitioners when acting for clients injured in motor accidents under both statutory schemes, before and after 1 December 2017.

The 2020 regulation

The explanatory memorandum for the new 2020 regulation notes:

The object of this Regulation is to remake, with some changes, the Motor Accidents Compensation Regulation 2015, which is repealed on 1 September 2020 by section 10(2) of the Subordinate Legislation Act 1989. The Regulation provides for the following matters—

(a) the maximum costs for legal services provided in connection with claims relating to motor accidents covered by the compulsory third-party insurance scheme under the Motor Accidents Compensation Act 1999,

(b) the circumstances in which a legal practitioner and party may contract out of those maximum costs for legal services (to the extent they are payable on a practitioner and client basis),

(c) the maximum fees for medico-legal services and expert evidence provided in respect of claims,

(d) the assessment of claims by claims assessors,

(e) other matters relating to costs including what is to occur if a claimant fails to attend a medical assessment, the rate of certain travel expenses and providing for GST to be taken into account,  

(f) the maximum amounts payable by insurers for certain treatment provided to claimants,

(g) the classes of motor vehicles that are taken to be subject to an unregistered vehicle permit for the purposes of section 10A (Treatment of certain vehicles for purposes of third-party policy) of the Act,

(h) the time in which an insurer must pay an assessed amount of damages to a claimant,

(i) prescribing the Australian Prudential Regulation Authority as an authority to which protected information may be divulged for the purposes of section 217 (Secrecy of information obtained from or relating to insurers or proposed insurers and other persons) of the Act,

 (j) providing for information about settlement amounts, deductions and amounts paid to claimants to be disclosed to the State Insurance Regulatory Authority by legal practitioners,

 (k) creating a duty for legal practitioners not to give or receive fees or other consideration in respect of referrals in relation to claims,

 (l) savings and transitional matters.

Publication updates

The changes introduced by the 2020 version of the regulations are not substantial. The most significant is the provision, with some exceptions, for the automatic adjustment for inflation of the maximum costs for legal services and maximum fees for medico-legal services.

The By Lawyers Motor Vehicle Accidents – Accidents prior to 1 December 2017 Guide has been updated accordingly.

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