ByLawyers News and Updates

County Court costs – VIC

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New rules provide for County Court costs to be taxed in the Costs Court under the Supreme Court Scale of Costs that operates by reference to hourly rates from 1 January 2025.

Costs in the County Court are dealt with under Order 63 of the County Court Civil Procedure Rules 2018, which now adopts the Scale of Costs in Schedule 1 of Appendix A to the Supreme Court (General Civil Procedure) Rules 2015.

In most cases, the parties will agree on the amount of costs to be paid. If they do not agree, the dispute is referred to the Costs Court.

The scale is based principally on time costing. If a client has been charged on the basis of hourly rates for work done, Section 1 of the Scale applies and provides that the costs payable to the entitled party are to be allowed on the basis of reasonable hourly rates, up to the maximum hourly rate set out in the scale. There are 3 tiers of maximum rates according to a practitioner’s years of post-admission experience. There are no minimum rates.

Section 1 also sets out maximum hourly rates for work done by employees of a law practice who are not legal practitioners. The maximum rates for those employees depend on whether their work required legal skill or knowledge.

All claims must be reasonable. In setting rates to be charged to clients, and in making costs claims, practitioners must observe their overarching obligation to ensure that costs are reasonable and proportionate under s 24 of the Civil Procedure Act 2010.

The time-based model does not mean that a law practice must charge their clients on an hourly basis. The scale also provides for assessment of costs where the entitled party has not been charged on the basis of hourly rates. In such a case, the Costs Court will allow a reasonable amount for the work.

See the By Lawyers County Court (VIC) and Supreme Court (VIC) publications for more information.

Costs – All states

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By Lawyers 101 Costs Answers reference manual has been extensively reviewed and enhanced.

This comprehensive reference manual is available in the Reference materials folder on all By Lawyers matters plans. The 101 Costs Answers guide is also as part of the By Lawyers Practice Management publication.

Commentary enhancement

An important new section of commentary has been included dealing with disclosure before settlement in litigation matters. Barrister Philippe Doyle Gray, who we are delighted to welcome to the ranks of our authors, covers in detail the requirement under the Legal Profession Uniform Law for clients to receive advice about the cost implications of settlement. Philippe has also made his helpful Settlement Computer available via a link in the By Lawyers commentaries. This automated spreadsheet assists practitioners with the sometimes complicated calculations required to properly give disclosure before settlement, taking into account the various possibilities for the resolution of a matter.

The new section of commentary has been added to the By Lawyers litigation and injuries guides in those states where the Legal Profession Uniform Law applies, namely New South Wales, Victoria and Western Australia.

New precedents

Two new precedent letters to the client have been added to provide clients with the necessary disclosure before settlement:

  • Letter to client – Costs disclosure before settlement – NSW, VIC and WA;
  • Letter to client – Costs disclosure before settlement – QLD, SA, TAS, ACT and NT.

There is one precedent letter for Legal Profession Uniform Law states and one for the other jurisdictions where costs disclosure before settlement is not mandatory but is nonetheless best practice.

These new letters are available in the If required – Updating costs disclosure and security for costs folder on all By Lawyers matter plans. They are also available on the relevant litigation and injuries matter plans under Going to court.

Costs agreements

By Lawyers extensive suite of costs agreements that comply with the regulatory requirements in each state are currently under review. Keep an eye out for a future News & Updates post when the revised versions are published.

Family law cases – FED

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A number of recent family law cases have been added to 101 Family Law Answers.

These new family law cases are located in the following sections of this helpful reference manual:

Costs orders

For a discussion of interim lump sum payments see Russo and Russo & Ors [2020] FCWA 182 at [61]-[66].

Settlement offers

In Paradin & Paradin [2020] FamCAFC 245 an order that the husband pay the wife’s costs was set aside. The husband had rejected the wife’s Calderbank offer because it was ambiguous and was not specific as to breakdown of payments. Strickland J stated at [57]:

… I am reminded … of what the Full Court said in Pennisi, namely, it is critical to consider the context in which an offer is made … And, as was said by the Full Court in Cross & Beaumont [2008] FamCAFC 68 … at [51] that context can be that ‘[i]f the recipient of the offer is demonstrably unable to comply with his or her obligations under the proposed settlement, it is difficult to see how the offer could be relied upon in support of an application for costs’.

Contributions – Conduct and family violence

Benson & Drury [2020] FamCAFC 303 saw the Full Court dismiss an appeal by the de facto husband against a 5% adjustment in the de facto wife’s favour. The adjustment had been made due to the impact of family violence upon her contributions, based on the arguments raised in Kennon. However, the Full Court stated that the primary judge was in error for not considering the Kennon argument in a holistic way. At [35] they stated:

…The contributions which have been made significantly more arduous have to be weighed along with all other contributions by each of the parties, whether financial or non-financial, direct or indirect to the acquisition, conservation and improvement of property and in the role of homemaker and parent. All contributions must be weighed collectively and so it is an error to segment or compartmentalise the various contributions and weigh one against the remainder.

101 Family Law Answers is available as a related guide and also in the reference materials folder in all By Lawyers Family Law publications. It provides more detailed information and relevant family law cases. It is separated into the various Family Law matter types – Property Settlement, Children, Financial Agreements and Divorce. It also covers general procedural issues and the enforcement of orders.

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