Division 12.8.2Assessment process

### Division 12.8.1—Itemised costs account Note: This Division provides that, if an account payable by a person is not in an itemised form, the person has the right to request an itemised costs account. The person may then dispute the itemised costs account by following the procedures set out in this Division. A person may apply to extend the time for taking any action required under these Rules (see rule 15.06). #### 12.33 Request for itemised costs account A person who has received an account (other than an itemised costs account) and wants to dispute the account, or any part of it, must, within 28 days after receiving the account, request the lawyer who sent it to serve an itemised costs account for the whole or part of the account disputed. #### 12.34 Service of lawyer’s itemised costs account (1) A person entitled to party and party costs must serve an itemised costs account on the person liable to pay the costs within 4 months after the end of the proceeding. > Note: A person entitled to costs may serve an itemised costs account even if the person liable to pay the costs has not requested it. (2) For party and party costs, the person entitled to costs must serve a costs brochure at the same time as the itemised costs account is served under subrule (1). > Note: A costs brochure is a brochure about costs approved by the Chief Executive Officer. #### 12.35 Lawyer’s itemised costs account (1) An itemised costs account (the account) must specify each item of costs and expense claimed. (2) Each item specified in the account must be numbered and described in sufficient detail to enable the account to be assessed. (3) The account must set out, in columns across the page: (a) in relation to each item for which costs are payable: (i) the date when the item occurred; and (ii) a description of the item, including whether the work was done by a lawyer or an employee or agent of a lawyer; and (iii) the amount payable for the item; and (b) at the end of the column setting out the amounts payable—the total amount payable for the items. (4) For each expense claimed, the account must include: (a) the date when the expense was incurred; and (b) the name of the person to whom the expense was paid; and (c) the nature of the expense; and (d) the amount paid. #### 12.36 Disputing itemised costs account A person served with an itemised costs account may dispute it by serving on the person entitled to the costs a Notice Disputing Itemised Costs Account within 28 days after the account was served. > Note 1: If no Notice Disputing Itemised Costs Account is received and the costs are not paid, the person entitled to the costs may seek a costs assessment order (see rule 12.50). > Note 2: If the parties agree on the amount to be paid for costs, they may lodge a draft consent order (see Part 10.2 for consent orders). #### 12.37 Assessment of disputed costs (1) This rule applies if a Notice Disputing Itemised Costs Account has been served under rule 12.36. (2) The parties to a dispute in relation to the costs must make a reasonable and genuine attempt to resolve the dispute. (3) If the parties are unable to resolve the dispute, either party may ask the court to determine the dispute by filing in the filing registry of the court where the proceeding was conducted the itemised costs account and the Notice Disputing Itemised Costs Account no later than 42 days after the Notice Disputing Itemised Costs Account was served. (4) The court may take into account any failure to comply with subrule (2) when considering any order for costs. #### 12.38 Amendment of itemised costs account or Notice Disputing Itemised Costs Account A party may amend an itemised costs account or a Notice Disputing Itemised Costs Account by filing the amended document with the amendments clearly marked: (a) at least 14 days before the date fixed for the assessment hearing; or (b) after that time with the consent of the other party; or (c) as ordered by the court. > Note: The only items that may be raised at an assessment hearing are those items included in the Notice Disputing Itemised Costs Account (see subrule 12.45(2)). ### Division 12.8.2—Assessment process #### 12.39 Fixing first court date (1) If an itemised costs account and a Notice Disputing Itemised Costs Account is filed under subrule 12.37(3), a Judicial Registrar must fix a date for: (a) a settlement conference (see rule 12.41); or (b) a preliminary assessment (see rule 12.42); or (c) an assessment hearing (see rule 12.45). (2) The date fixed must be at least 21 days after the Notice Disputing Itemised Costs Account is filed. #### 12.40 Notification of hearing A party filing a Notice Disputing Itemised Costs Account must give the party who served the itemised costs account at least 14 days notice of the court event and the date fixed for the event under rule 12.39. #### 12.41 Settlement conference At a settlement conference for an itemised costs account, a Judicial Registrar: (a) must: (i) give the parties an opportunity to agree about the amount for which a costs assessment order should be made; or (ii) identify the issues in dispute; and (b) must make procedural orders for the future conduct of the assessment process. #### 12.42 Preliminary assessment (1) At a preliminary assessment of an itemised costs account, a Judicial Registrar must, in the absence of the parties, calculate the amount (the preliminary assessment amount) for which, if the costs were to be assessed, the costs assessment order would be likely to be made. (2) The Judicial Registrar must give each party written notice of the preliminary assessment amount. #### 12.43 Objection to preliminary assessment amount (1) A party may object to the preliminary assessment amount calculated under rule 12.42 by: (a) giving written notice of the objection to the Judicial Registrar and the other party; and (b) paying into court a sum equal to 5% of the total amount claimed in the itemised costs account as security for the cost of any assessment of the account; within 21 days after receiving written notice of the preliminary assessment amount. (2) On receiving a notice and security, the Judicial Registrar must fix a date for an assessment hearing for the itemised costs account. (3) The party objecting may be ordered to pay the other party’s costs of the assessment from the date of giving notice under paragraph (1)(a) unless the itemised costs account is assessed with a variation in the objecting party’s favour of at least 20% of the preliminary assessment amount. > Note: The court may order that a party is not required to pay security under paragraph (1)(b). #### 12.44 No objection to preliminary assessment (1) If: (a) a Judicial Registrar does not receive a notice of objection under paragraph 12.43(1)(a); or (b) an amount as security for costs is not paid under paragraph 12.43(1)(b); the Judicial Registrar may make a costs assessment order for the amount of the preliminary assessment amount calculated under rule 12.42. (2) A costs assessment order under this rule has the force and effect of an order of the court. #### 12.45 Assessment hearing (1) The Judicial Registrar conducting an assessment hearing for a disputed itemised costs account must: (a) determine the amount (if any) to be deducted from each item included in the Notice Disputing Itemised Costs Account; and (b) determine the total amount (if any) payable for the costs of the assessment; and (c) calculate the total amount payable for the costs allowed; and (d) deduct the total amount (if any) of costs paid or credited; and (e) calculate the total amount payable for costs. (2) At the assessment hearing, a party may only raise as an issue a disputed item included in the Notice Disputing Itemised Costs Account. (3) At the end of the assessment hearing, the Judicial Registrar must: (a) make a costs assessment order; and (b) give a copy of the order to each party. > Note 1: At an assessment hearing, the onus of proof is on the person entitled to costs. That person should bring to the hearing all documents supporting the items claimed. > Note 2: If it is not practicable to make the costs assessment order at the assessment hearing, the Judicial Registrar may reserve the Registrar’s decision before making the order. (4) Within 14 days after the costs assessment order is made, a party may request the Judicial Registrar to give reasons for the Registrar’s decision about a disputed item. (5) A costs assessment order under this rule has the force and effect of an order of the court. #### 12.46 Powers of Judicial Registrars (1) A Judicial Registrar may do any of the following at an assessment hearing: (a) summon a witness to attend; (b) examine a witness; (c) require a person to file an affidavit; (d) administer an oath; (e) order that a document be produced; (f) make an interim or final costs assessment order; (g) adjourn the assessment hearing; (h) if satisfied that there has been a gross or consistent breach of a lawyer’s obligations under this Chapter—refer an issue to the appropriate professional regulatory body; (i) refer to the court any question arising from the assessment; (j) determine whether costs were fairly and reasonably incurred, were of a fair and reasonable amount and were proportionate to the matters in issue; (k) make a consent order fixing the amount of costs to be paid; (l) dismiss an account if: (i) it does not comply with these Rules or an order; or (ii) the person entitled to costs does not attend the assessment hearing; (m) order costs; (n) do, or order another person to do, any other act that is required to be done under these Rules or an order. > Note: Example: For the purposes of paragraph (h), an issue that may be referred to a professional regulatory body is if the lawyer grossly overcharged a client or failed to disclose an important issue. (2) On being satisfied that the time for reviewing a costs assessment order has passed, the Judicial Registrar must: (a) determine how any amount paid as security for the costs of assessment is to be distributed or refunded; and (b) order that the payment be made out of court. #### 12.47 Assessment principles (1) A Judicial Registrar must not allow costs that, in the opinion of the Registrar: (a) are not fair and reasonable; or (b) are not proportionate to the issues in the proceeding. (2) If the court has ordered costs on an indemnity basis, the Judicial Registrar must allow all costs reasonably incurred and of a reasonable amount having regard to, among other things: (a) the scale of costs in Schedule 3; and (b) any costs agreement between the party to whom costs are payable and the party’s lawyer; and (c) charges ordinarily payable by a client to a lawyer for the work. (3) In assessing costs as between party and party, a Judicial Registrar must not allow: (a) costs incurred because of improper, unnecessary or unreasonable conduct by a party or a party’s lawyer; or (b) costs for work (of a kind or amount) that was not reasonably required to be done for the proceeding; or (c) unusual expenses. #### 12.48 Allowance for matters not specified (1) A Judicial Registrar may allow a reasonable sum for work properly performed that is not specifically provided for in Schedule 3. (2) In considering whether to allow an amount for costs or an expense, the Judicial Registrar may consider the following: (a) any other fees paid or payable to the lawyer and counsel for work to which a fee or allowance applies; (b) the complexity of the proceeding; (c) the amount or value of the property or financial resource involved; (d) the nature and importance of the proceeding to the party concerned; (e) the difficulty or novelty of the matters raised in the proceeding; (f) the special skill, knowledge or responsibility required, or the demands made, of the lawyer by the proceeding; (g) the conduct of all the parties and the time spent on the proceeding; (h) the place where, and the circumstances in which, work or any part of it was done; (i) the quality of work done and whether the level of expertise was appropriate to the nature of the work; (j) the time in which the work was required to be done. #### 12.49 Neglect or delay before Judicial Registrar (1) This rule applies if, after a Notice Disputing Itemised Costs Account was filed under subrule 12.37(3), a party or a party’s lawyer: (a) fails to comply with these Rules or an order; or (b) puts another party to unnecessary or improper expense or inconvenience. (2) The Judicial Registrar may: (a) order the party to pay costs; or (b) disallow all or part of the costs in the itemised costs account. #### 12.50 Costs assessment order—costs account not disputed (1) This rule applies to a person entitled to costs who: (a) has served an itemised costs account under rule 12.34; and (b) has not been served with a Notice Disputing Itemised Costs Account under rule 12.36. (2) A Judicial Registrar may make a costs assessment order if the person has filed: (a) a copy of the itemised costs account; and (b) an affidavit stating: (i) when the itemised costs account was served on the person liable to pay the costs; and (ii) the amount (if any) that has been received or credited for the costs; and (iii) that the person liable to pay the costs has not served a Notice Disputing Itemised Costs Account under rule 12.36; and (iv) that the time for serving a Notice Disputing Itemised Costs Account has passed. (3) If a costs assessment order is made under subrule (2), the person entitled to costs must serve a copy of the order on the person liable to pay costs. (4) A costs assessment order under this rule has the force and effect of an order of the court. #### 12.51 Setting aside a costs assessment order (1) This rule applies to a party who is liable to pay costs and receives a costs assessment order under subrule 12.44(1) or 12.50(3). (2) The party may, within 14 days after receiving the costs assessment order, apply to have it set aside. > Note: If a party wishes to object to a costs assessment order after an assessment hearing has taken place, the party must do so in accordance with Part 12.9. ## Part 12.9—Review of assessment #### 12.52 Application for review (1) A party may apply to the court to review the decision of a Judicial Registrar at an assessment hearing under rule 12.45 by filing an Application for Review and an affidavit. (2) The affidavit must include: (a) the number of each item in the itemised costs account to which the party objects to the Judicial Registrar’s decision; and (b) the reasons for objecting to the decision; and (c) the decision sought from the court for each objection. #### 12.53 Time for filing an application for review An application for review must be filed within 14 days after the applicant receives the Judicial Registrar’s reasons for a decision about a disputed item requested under subrule 12.45(4). #### 12.54 Hearing of application (1) An application for review must be heard by a Judge. (2) At the hearing of the application: (a) the court must not receive any new evidence; and (b) the court may: (i) exercise all the powers of the Judicial Registrar; and (ii) set aside or vary the Judicial Registrar’s decision; and (iii) return any item to the Judicial Registrar for reconsideration; and (c) a party may raise an issue only if: (i) it was identified as a disputed item in the Notice Disputing Itemised Costs Account; or (ii) it concerns the costs of assessing the itemised costs account; or (iii) it concerns an alleged error of calculation in, or omission from, the assessment of the itemised costs account; or (iv) it concerns an alleged error of law or fact by the Judicial Registrar, and the party has made a request under subrule 12.45(4). (3) A hearing of an application for review does not operate as a stay of the decision reviewed.