Subdiv 4Complaints of overcharging

Subdivision 4—Complaints of overcharging 77N—Investigation of allegation of overcharging (1) Subject to subsections (2) and (3) and section 77C, if a complaint of overcharging is made against a legal practitioner or former legal practitioner, the Commissioner must investigate the complaint unless the complaint is received by the Commissioner more than 2 years after the final bill to which the complaint relates was delivered to the client or the complaint is resolved before the Commissioner commences an investigation. (2) The Commissioner may require a complainant to pay a reasonable fee, fixed by the Commissioner, for investigation of the complaint and decline to proceed with the investigation unless the fee is paid. (3) The Commissioner may not proceed with the investigation of a complaint of overcharging while the bill to which the complaint relates is the subject of an application for adjudication of costs before the Supreme Court under Schedule 3. (4) For the purposes of an investigation the Commissioner may do either or both of the following: (a) by notice in writing— (i) require the legal practitioner or former legal practitioner to make a detailed report to the Commissioner, within the time specified in the notice, on the work carried out for the client to whom the bill was delivered; and (ii) require the legal practitioner or former legal practitioner to produce to the Commissioner, within the time specified in the notice, documents relating to the work; (b) arrange for the costs that are the subject of the complaint of overcharging to be assessed by a legal practitioner who is, in the opinion of the Commissioner, qualified to make such an assessment. (4a) The Commissioner— (a) may require a complainant to pay the reasonable costs of an assessment by a legal practitioner arranged under subsection (4)(b); and (b) may, if the complaint is upheld, refund those costs to the complainant. (5) A legal practitioner or former legal practitioner must comply with a requirement under subsection (4)(a). Maximum penalty: $10 000 or imprisonment for 1 year. (6) At the conclusion of the investigation, the Commissioner— (a) must report to the complainant, the client to whom the bill was delivered (if that client is not the complainant) and the legal practitioner or former legal practitioner on the results of the investigation; and (b) may recommend that the legal practitioner or former legal practitioner reduce a charge or refund an amount to the complainant or the client to whom the bill was delivered. (7) If— (a) the amount in dispute in a complaint of overcharging is no more than $50 000; and (b) the costs the subject of the complaint have been assessed by a legal practitioner in accordance with subsection (4)(b); and (c) the Commissioner has, by written notice, given the complainant, the client to whom the bill was delivered (if that client is not the complainant) and the legal practitioner or former legal practitioner details of the assessment and invited them to make written submissions within the period (which must be at least 7 days) specified in the notice, the Commissioner may, after the end of the specified period and after having regard to any submissions received, make a determination as to whether or not there has been overcharging and, if so, the amount that has been overcharged. (8) If the Commissioner makes a determination under subsection (7)— (a) the Commissioner must give the complainant, the client to whom the bill was delivered (if that client is not the complainant) and the legal practitioner or former legal practitioner a certificate certifying the determination; and (b) the determination is binding on, and enforceable by or against, the legal practitioner or former legal practitioner in relation to whom the complaint was made and the client to whom the bill was delivered. (9) Subsection (8)(b) does not apply if the Supreme Court has adjudicated and settled the bill that is the subject of the complaint of overcharging. (10) If a complaint of overcharging made against a legal practitioner or former legal practitioner results in a determination or finding that there has been overcharging or a recommendation, order or agreement that the legal practitioner or former legal practitioner reduce a charge or refund an amount to the complainant— (a) the complainant is entitled to a refund of any fee paid to the Commissioner for investigation of the complaint; and (b) the amount of the fee refunded to the complainant is recoverable from the legal practitioner or former legal practitioner as a debt due to the Commissioner; and (c) the costs of any assessment undertaken by a legal practitioner under subsection (4)(b) for the purposes of investigating the complaint are recoverable from the legal practitioner or former legal practitioner as a debt due to the Commissioner. (11) The provisions of Schedule 4 apply to an investigation under this section.