Appeal decision to impact billing practices by Kylie Downes, December 2012 p.6
Challen v Golder Associates Pty Ltd  QCA 307 has significant implications for solicitors regarding itemisation and assessment of bills.
Practice and Procedure Case Note on Branson v Tucker  NSWCA 310 by Kylie Downes, December 2012 pp.38-39. Costs – barrister claiming amount in bill of costs rendered to solicitors – time limit on application.
Costs – barrister claiming amount in bill of costs rendered to solicitors – time limit on application.
Practice and Procedure Case Note on Julstar Pty Ltd v Lynch Morgan Lawyers  QDC 272 by Sheryl Jackson and Paul Garrett, November 2012 pp.36-37.
Open for inspection? In costs assessment, a lien for unpaid fees may not be enough to prevent an ‘inspection’ of the relevant files if it serves the interests of justice.
UCPR r743A – application for assessment of costs under the LPA – whether applicant entitled to inspect solicitor’s files where lien claimed – scope of assessment – whether applicant must specify grounds – relevance of discretionary factors – order for disclosure under UCPR r223.
Practice and Procedure Case Note on Paroz v Clifford Gouldson Lawyers  QDC 151 by Sheryl Jackson and Roger Quick, October 2012 pp.42-44.
This case offers practitioners an informative judicial view of some key concerns on costs disclosure and assessment.
Take care with ‘care and consideration’. And keep an eye on fees for reasons.
Provisions of the Uniform Civil Procedure Rules relating to costs assessment have received judicial consideration, providing some important lessons for practitioners.
Does it add up? Charging interest on unpaid legal costs. August 2012 pp.20-21.
Reserving our rights. QLS advocates on itemised billing guide. July 2012 pp.24-25.
On account. Assessment of costs under the Legal Profession Act 2007 by Kylie Downes SC and Carolyn Conway, July 2012 pp.34-36.
Law firms commonly issue periodic invoices. When these are issued over the course of extended litigation, practitioners should note that clients may seek assessment of all invoices issued during the litigation.
Pro bono – but what about costs? Even when acting pro bono, the possible recovery of costs must be considered at the outset.
This case highlights the needs for all solicitors to ensure that their practices maintain a high quality approach to costs management.
The District Court considers whether an application for assessment of costs under an interim bill at the time of a final bill is subject to the usual 12-month restriction.
And see this CLE paper.
A hard-hatted approach to billing by Roger Quick, August 2011 pp.34-36.
Building smarts in estimating, planning and budgeting.
Practice and Procedure Case Note on Clayton Utz Lawyers v P&W Enterprises Pty Ltd  QDC 5 by Sheryl Jackson, June 2011 pp.46-47. And see the April 2011 Proctor article about this case and the April 2011 Hearsay article and this CLE paper.
Charting a course through client costs agreements by Lance Rundle, May 2011 pp.34-35.
Decision highlights fee narrations by QLS Litigation Rules Committee, April 2011 p.32.
A recent QSC case demonstrates a number of issues that could deprive a successful party of its right to recover costs through a cost agreement.
Guidelines for Litigation Loans February 2011 p.13.
A recent Court of Appeal case examines the meaning of ‘third party payer’ in terms of Part 3.4 of the Legal Profession Act 2007.
Fair Trade? Why we need to rethink time billing by Brian Bartley, September 2010, p.12.
The chair of the QLS Ethics Committee asks whether we should be more concerned with abuses of time billing than time billing itself.
These decisions consider some of the costs provisions of the Legal Profession Act 2007 including the definition of ‘third party payer’ in s.301. (Note this LSC v Wright decision has been appealed and there is a Practice and Procedure article in Proctor February 2011 commenting on both these cases (see above)).
New consumer credit protection regime: Solicitors beware! by Wei-Loong Chen and Elise Whalan, March 2010 pp.35-36.
With new credit laws applying to retainer arrangements, practitioners need to proceed with caution, as a Victorian case illustrates – Brott v Shtrambandt  VSC 467.
ILPs: Will the price be right? Applying sections 53C and 76AZF of the Trade Practices Act 1974 (Cth) to incorporated legal practices by Maree Westbrook, March 2010 pp.19-22.
(The legislation referred to in this article has been superseded. Now see the Legal Services Commission Regulatory Guide 2-2012 (March 2012) in particular paragraph 4.2 Component Pricing).
Fee estimates and cost management by Robert Gallagher, February 2010 pp.39-40.
Estimating and agreeing fees remains a contentious issue for many practices. Robert Gallagher offers a helpful perspective.
Practice and Procedure Case Note on John Kallinicos Accountants Pty Ltd v Dundredan Pty Ltd  QDC 141 by Sheryl Jackson, December 2009 p.51.
Request for production of documents – UCPR r 222 – manner of compliance – whether requesting party must pay copying costs.
Reimbursements and GST. Will you be out of pocket? by Peter Allen and Marc Johnston, November 2009 pp.15-16.
GST payments on disbursements remain somewhat confusing. Peter Allen and Marc Johnston offer a guide to current practice.
Disclosure obligations on ex parte application for freezing order – duty of practitioners to the court – failure to comply with duty – serious dereliction of duty to court – supplemental order for costs against solicitors personally.
What steps can lawyers take to protect work-in-progress and fees paid being ‘clawed back’ by a liquidator or trustee in bankruptcy? by Paul Agnew, September 2009 pp.45-46.
Lawyers can consider a number of options to protect payment for their services in cases involving potential liquidation or bankruptcy. In this article, Paul Agnew examines two possibilities – taking security and retainers for defined future work.
No client agreement? What scale? by Stephen Hartwell, May 2009 pp.15-16.
Although there have been recent court decisions on legal costs in the absence of a costs agreement, there are still a number of grey areas, as Stephen Hartwell explains.
Legal Profession Act 2004 (NSW) – costs agreement between law practice and client – whether binding on non-associated third-party payer – GST implications when client entitled to input tax credit.
This case relates to costs assessments and the rights of non-associated third party payers such as lessees and mortgagors. Although this case deals with the NSW costs provisions the Queensland provisions are similar. (Note that after publication of this article this decision was appealed and the Court of Appeal confirmed the original decision except in relation to the GST point - Boyce v McIntyre  NSWCA 185).
And see this CLE paper.
Time costing – the ‘Prius’ Model by David Topp, October 2008 pp.47-48.
As the time costing debate continues, a hybrid “Prius” model may be the best way to go.
In Defence of Time Billing by Graeme McFadyen, August 2008 pp.49-50.
They say time is money, but in legal offices debate continues on what makes the best billing strategy.
All about Costs Assessment ’08 by Paul Garrett and Tony Deane, April 2008 pp.23-28.
This detailed article explains the amendments to Chapter 17A of the Uniform Civil Procedure Rules which from 10 December 2007 created a new regime for costs assessments, both for costs payable between parties and for costs payable under the Legal Profession Act 2007 between client and solicitor.
A quick guide to the new costs assessment regime February 2008 p.14.
Legal Profession Act 2007…The new legal costs provisions – what you need to know! by Peter Carne, August 2007 pp.9-10.
This article includes details of the transitional provisions.
Time to re-think the hourly fee? by Giles Watson, April 2007 pp.17-18.
Developments in law firm management suggest that it may be time to re-think our reliance on the basic economic unit of law firm profitability.
Counting the costs - a paper presented at the National Costs Lawyers Conference, Melbourne, 15 February 2013. Includes the Commissioner's latest views on care and consideration, cancellation fees, the Australian Consumer Law as it applies to lawyers, itemised bills and lump sum costs agreements.
Draft Regulatory Guide released 19 November 2012.
This guide deals with many aspects of itemised bills including entitlement to an itemised bill, the content of an itemised bill and the amount of an itemised bill (including the validity of 'reservation clauses' i.e. reservation of a right to substitute a bill for a higher amount than the original lump sum bill). See also the accompanying Explanatory Notes and the July 2012 Proctor Article Reserving our rights.
This guide deals with various issues relating to costs including unfair terms in costs agreements and the time limit for providing an itemised bill.
Released 9 March 2012. Comments closed 27 April 2012.
'No win-no fee' costs agreements - information for consumers (December 2012).
The pressures of billable hours: lessons from a survey of billing practices inside law firms by Christine Parker and David Ruschena (March 2011).
At what cost, costs? by John Briton, Legal Services Commissioner (delivered at QLS Symposium March 2011).
Wounding the bull: costs in a disciplinary context (March 2009).
Charging “excessive costs in connection with the practice of law” and other issues. By David Edwards, Principal Legal Officer.
(For further related resources see the ‘Personal Injuries’ section below).
Connollys Lawyers Pty Ltd v Davis  QCA 231
Bills of Costs – action to recover costs – where the client had retained the solicitor to two separate proceedings – where the client and solicitor signed a written costs agreement for each proceeding – where the client had difficulty in reading but signed the agreements upon the insistence of the solicitor – where after termination of the retainers the costs in both proceedings had exceeded the original estimates – where the client alleged the solicitor failed to meet obligations under Part 3.4 of the Legal Profession Act 2007 (Qld) (‘the Act’) including by failing to make adequate disclosure – consideration of the word “disclose” in s 308(1) of the Act and the phrase “unable to read” in s 314(2) of the Act – whether continuing disclosure in s 315 of the Act can be satisfied by regular invoices to the client.
Challen v Golder Associates Pty Ltd  QCA 307
Costs assessment – interim and final bills – whether additional time period for application for assessment of interim bills after final bill.
LPA ss.3, 300, 308, 333, 335, 738. UCPR r 743C.
(See article about this case in Proctor December 2012 p.6)
Julstar Pty Ltd v Lynch Morgan Lawyers  QDC 272
Costs assessment – whether inspection of file available where lien claimed – evidence for preliminary issue of factors relevant to discretionary decision to order assessment – whether grounds to be stated where full assessment sought. LPA s.325.
(See article about this case in Proctor November 2012).
Hayes v Mylne Lawyers  QCATA 76
Minor civil dispute – where a law firm seeks recovery of legal costs – where the requirements of the LPA not satisfied concerning disclosure of information to clients – where the basis of the costs sought not disclosed in evidence. LPA ss 308, 311, 316, 319, 320.
Paroz v Clifford Gouldson Lawyers  QDC 151
Assessment – effect of failure to make disclosure required by statute – whether double penalty. Effect of costs agreement not complying in a material way with disclosure obligations – assess on the basis of a fair and reasonable amount. Costs agreement – whether applicable to work already done – how costs to be assessed. Disclosure obligations of solicitor – effect of material non-compliance on assessment.
LPA ss 300, 308, 310, 316, 319, 322, 335, 340, 341. UCPR r 678.
(See also the article about this case in the Proctor October 2012)
Southwell v Jackson  QDC 65
Assessment of itemised bills – whether whole assessment ought to be set aside. Assessment of itemised bills – when retainer terminated – whether care and consideration claimable – whether cost of itemised bills claimable. LPA ss 340(1), 341(1). UCPR r 719, r 742.
(See also the article about this case in Proctor August 2012).
King v King  QCA 81
Costs – where the applicant succeeded on an appeal – where no cost orders were made – where applicant’s lawyers were acting pro bono – where costs agreement varied 15 minutes before delivery of judgment – where new costs agreement provided for recovery of costs under pro bono arrangement – whether costs should be awarded to the applicant. LPA s 308.
(See also the article about this case in Proctor June 2012).
Costs – costs assessment – where legal services were provided by the respondents to the applicants between December 2007 and September 2011 – where 115 tax invoices were issued for those legal services – where applicant seeks assessment of costs pursuant to s 335 LPA – where many invoices were issued more than 12 months prior to the application being filed on 2 March 2012 – where respondent accepts that the applicant is entitled to assessment in relation to invoices issued within 12 months prior to 2 March 2012 – where respondent contends that the applicant is time-barred in relation to earlier invoices by virtue of s 335(5) LPA – whether invoices constitute interim or final bills – whether applicant is entitled to an assessment of costs on all invoices issued by the respondent.
Costs – itemised bills – where applicant seeks a direction pursuant to r 743C UCPR that the respondent deliver itemised bills – whether information provided by the respondents to the applicants is inadequate – whether the respondent should be directed to deliver itemised bills.
LPA ss 300, 330, 332, 333, 334,335, 341.
(See also the article about this case in Proctor July 2012).
Golder Associates P/L v Challen  QDC 11.
Costs – assessment – series of bills – whether application within time – whether some bills interim bills – whether “final” bill delivered. LPA ss 300, 332, 333, 335. (See also the article about this case in Proctor May 2012). Note: This case was appealed – see Challen v Golder Associates  QCA 307 (above).
Willey v Ross Lawyers  QCATA 22
Minor civil dispute – where decision in default of response – where claim for legal fees – whether compliance with LPA – where delay in response not explained fully. QCAT Act 2009 s 61. LPA ss 329, 331
O'Neill v Wilson  QSC 220
Costs agreements - where solicitor relied on an unsigned 'costs agreement' - whether costs agreement existed. LPA ss.319(1)(b), 322.
Ireland v Trilby Misso Lawyers  QSC 127
Solicitor and client – retainer – duration, termination and change of attorney – where the respondent denied the appellant access to his papers unless outstanding fees were paid and other conditions were met – where the appellant had entered into a ‘no win, no fee’ agreement with the respondent.
Lawyers – liens – possessory lien – determination – whether appellant owes outstanding fees to the respondent – where the respondent refuses to deliver up papers on the appellant’s file – where the respondent claimed a possessory lien over the papers.
Turner v Mitchell Solicitors  QDC 61
Costs assessment - series of bills - whether application within time - whether some bills interim bills - discretion to assess anyway. LPA ss 333, 335(2).
Franklin v Barry & Nilsson Lawyers (No 2)  QDC 55
Costs – assessment – application to review costs assessor’s decision – where in 2003 the parties entered into a costs agreement for legal work directed to the Family Court – where in 2007 the proceedings were transferred to the Federal Magistrates Court – where the District Court held that the 2003 costs agreement was void with respect to new work done after transfer – where the Court subsequently ordered that eight bills be assessed by a costs assessor pursuant to s319(1)(c) of the LPA – whether the costs assessor erred in failing to properly consider the matters prescribed in s341(1) of the Act – whether the costs assessor erred in finding that the solicitors had failed to make disclosure pursuant to Chapter 3, Part 3.4, Division 3 of the Act – whether the costs assessor erred by applying the scale of costs under the Family Law Rules 2004 as a basis for determining a fair and reasonable value of legal services provided by the solicitors.
Edwards v Bray  QCA 72.
Costs agreements – generally – where applicant solicitor retained by the respondents – where applicant delivered itemised account to respondents – where costs assessor appointed by Solicitors Complaints Tribunal – where costs assessment given on 9 May 2006 – where applicant filed a claim for fees in Magistrates Court – where respondents applied for summary judgment – where judgment was entered – where respondents unsuccessfully appealed to the District Court – where applicant sought leave to appeal to the Court of Appeal – whether a statutory debt came into being on the costs assessment becoming binding pursuant to QLS Act s 6ZE(2) – whether QLS Act s 6ZE(2) provides an alternative source of the solicitor’s entitlement to fees or costs – applicable limitation period pursuant to Limitation of Actions Act 1974 (Qld).
Costs assessment - non-associated third party payer - whether the amount claimed is fair and reasonable in the circumstances. UCPR r.742(6). LPA s 341(3). Boyce v McIntyre  NSWSC 1218 (and see Proctor April 2009 Practice and Procedure case note about this case - above). Boyce v McIntyre  NSWCA 185. And see this CLE paper.
Clayton Utz Lawyers v P& W Enterprises Pty Ltd  QDC 5.
Legal practitioners – costs – whether bills constitute ‘itemised bills’.
QCoal Pty Ltd v Cliffs Australia Coal  QSC 479.
Solicitor and client costs – creation and duration of retainer – where order made that the applicants pay the respondents costs in a previous proceeding – where costs agreement made during the hearing of that proceeding and sought to be applied retrospectively – where applicants now seek declarations that the respondents’ costs agreement is not enforceable or voidable – where otherwise the applicants seek the costs statement to be struck out and declarations that the costs be assessed on the Court’s scale.
(See also the review of this case in Proctor April 2011).
Morales v Murray Lyons Solicitors  QCATA 87
Minor civil dispute – jurisdiction of QCAT to hear disputes seeking recovery of legal fees as a demand for a debt or liquidated sum – conditions precedent to the recovery of legal fees that arise under the LPA. LPA ss 319, 328, 329, 330, 331.
Legal Services Commissioner v Wright  QCA 321
LPA 2007 s.301 – entitlement to itemised bill – meaning of ‘third party payer’ – whether legal obligation to pay costs.
(See also the review of this case in Proctor February 2011).
Quaresmini v Crouch & Lyndon  FMCA 750
QLS Act s.48J. LPA ss 329(1), 330, 331.
Amos v Ian K Fry & Company  QCA 131
Procedure – costs – where order made for trustee/executor to deduct such costs from beneficiary’s share of estate as attributable to his conduct in commencing proceedings – where beneficiary refused leave to commence proceedings to seek a costs assessment order – where beneficiary sought leave to appeal from decision – whether beneficiary had standing to seek costs assessment order against trustee’s solicitor – meaning of ‘third party payer’ in the LPA – whether beneficiary had a legal obligation to pay costs.
(See also the review of this case in Proctor August 2010 and further comments in Proctor February 2011 at pp 52-53).
Legal Services Commissioner v Diane Marie Wright  QSC 168
Professions and trades – lawyers – complaints and discipline – generally – where respondent solicitor refused to provide itemised bill on the basis that the party seeking the itemised bill was not a client or third party payer – where complaint lodged with Legal Services Commissioner – where Commissioner filed originating application seeking declarations that the complainant was a client of the respondent, a third party payer or otherwise entitled to apply for an assessment of the subject costs – where applicant submitted that an implied retainer arose between the complainant and respondent solicitor – whether complainant was a client of the respondent solicitor – whether complainant was a third party payer within the meaning of the LPA 2007.
(See also the review of this case in Proctor August 2010. Also note this decision was appealed – see appeal decision above.
State of Queensland v Masman  QSC 430
Clients paid $95,000 to solicitors as retainer for legal services – whether the money was held on trust for clients – whether the money became property of the solicitors – whether the money could be subject to previous restraining orders under Criminal Proceeds Confiscation Act 2002 (Qld).
Chadwick Lawyers v McMullen  FMCA 992
LPA 319, 329, 331.
Legal Services Commissioner v Dempsey  LPT 20
See charges 1 and 2.
Vitobello & Hayter v Russell & Co  QDC 249
LPA ss 300, 335 - whether information in solicitors’ ledger was an ‘itemised bill’.
Legal Services Commissioner v Shera  LPT 015.
Overcharging in a legal aid matter.
Legal Services Commissioner v Duffield  LPC 05/07.
Overcharging where no executed client agreement. This case refers to s 48I of the Queensland Law Society Act 1952 which was in similar terms to the current s 319 LPA. (This case report is not available on the internet but see this Proctor article October 2008 pp 45-46).
Legal Services Commissioner v Hoolihan  LPT 003.
Failure to comply with request for bills and itemised accounts. See charges 9, 18 and 25.
Baker v Legal Services Commissioner  QCA 145.
See charges 1, 2, 7, 9, and 10. See also the June 2006 Proctor article about this case.
Legal Services Commissioner v Towers  LPT 3.
Grossly excessive charging by solicitor attorney of an incapacitated client. Charging at professional rates for non-professional activities. Failure provide itemised account.
In the Matter of Frank Nicholas Cop SCT/116 (3 February 2004).
Failure provide bill of costs, failure make written client agreement, increasing costs where no reservation clause, charging for work after termination of retainer, demanding payment of costs from a non-client with threat to sue, threat to sue for costs unless complaint to QLS withdrawn.
Council of the Queensland Law Society Inc v Roche  QCA 469.
Where solicitor acted for client under retainer – where solicitor sought to execute new retainer involving blended rates - where no evidence that solicitor advised client to seek independent legal advice - where client executed new retainer - where solicitor charged client high fees under new retainer - whether fees charged under new retainer constituted gross overcharging - whether solicitor committed breach of fiduciary duty to client.
This case is examined in detail in the LSC speech Wounding the bull: costs in a disciplinary context.
Maximum Interest Rate for Unpaid Solicitor Client Costs
Queensland Parliament Finance and Administration Committee: Report No. 28 - Inquiry into the Operation of Queensland's Workers' Compensation Scheme – see pp.166 to 175 which deal with ‘no-win-no-fee’ arrangements and the 50/50 rule.
Costs Payable in Personal Injury Claims under the Various Legislative Regimes by Paul Garrett, QLS Personal Injuries Conference July 2010.
The Legal Services Commission has commented on this issue in its Draft Regulatory Guide 3-2012 Billing Practices - Key Principles at p.11, and in Counting the costs at p.11. Also see the LSC/Griffith University Symposium report On Costs (May 2011) at pp.13-23.
Queensland Supreme Court Library resources
Quick on Costs (please contact the library on 3247 4373).
Document Delivery and Research Requests. QLS members can make document delivery and legal research requests through the QLS website.
G E Dal Pont Lawyers’ Professional Responsibility (2012)
· Chapter 14: Costs Disclosure and Costs Agreements
· Chapter 15: Recovery of Costs from Clients
(Available from Supreme Court Library using above link. Please be advised that, under Copyright legislation, Libraries are only able to supply one chapter per text.)
- 50-50 Rule Court of Appeal upholds decision - Proctor July 2008 p12.
- A hard-hatted approach to billling, Roger Quick - Proctor August 2011
- A quick guide to the new costs assessment regime - February 2008
- Appeal decision to impact billing practices - Proctor December 2012
- Barristers' Cancellation Fees - QLS Update (email) 4 August 2009
- Charting a course through client costs agreements
- Costs in Criminal Law by Glen Cranny, 13 October 2009
- Costs Payable in Personal Injury Claims under the Various Legislative Regimes by Paul Garrett, July 2010
- Decision highlights fee narrations - Proctor April 2011
- Disputes on barristers' fees - Proctor September 2010
- Does it add up, charging interest on unpaid legal costs - Proctor August 2012
- Fair Trade, why we need to rethink time billing by Brian Bartley - Proctor September 2010
- Fee Estimates and Cost Management by Robert Gallagher - Proctor February 2010
- Frank Cop - SCT 3 Feb 2004
- Guidelines for litigation loans - February 2011
- ILPs, Will the price be right - Proctor March 2010
- In defence of time billing by Graeme McFadyen - Proctor August 2008
- Legal Costs less than $1500? - You still need a Costs Agreement
- Legal Profession Act 2007 The new legal costs provisions – what you need to know - Proctor August 2007
- Managing Costs and Billing Within Your Practice by Jonathan Shaw - QLS Symposium March 2009
- New consumer credit protection regime, solicitors beware - Proctor March 2010
- No client agreement What scale by Stephen Hartwell - Proctor May 2009
- On account Assessment of legal costs under the LPA 2007 - Proctor July 2012
- Practice and Procedure - Boyce v McIntyre - Proctor April 2009
- Practice and Procedure - Branson v Tucker - Proctor Dec 2012
- Practice and Procedure - Clayton Utz v P & W Enterprises - Proctor June 2011
- Practice and Procedure - Golder Associates v Challen - Proctor May 2012
- Practice and Procedure - Heartwood v Redchip Lawyers - Proctor October 2009
- Practice and Procedure - Julstar Pty Ltd v Lynch Morgan Lawyers
- Practice and Procedure - Kallinicos v Dundredan - Proctor December 2009
- Practice and Procedure - King v King - Proctor June 2012
- Practice and Procedure - LSC v Wright - Proctor February 2011
- Practice and Procedure - LSC v Wright, Amos v Fry - Proctor August 2010
- Practice and Procedure - Paroz v Clifford Gouldson
- Practice and Procedure - QCoal Pty Ltd v Cliffs Australia Coal - Proctor April 2011
- Practice and Procedure - Southwell v Jackson - Proctor August 2012
- Practice and Procedure -Turner v Mitchells - Proctor Sept 2011
- Provide it (discovery copying fees) by Neil Watt - Proctor March 2008
- Reimbursements & GST - Proctor November 2009
- Reserving our rights - Proctor July 2012
- Solicitors professional responsibilities to their clients. The Michael Baker disciplinary decision - Proctor June 2006
- The boss and why there's a reason to worry - Proctor October 2008
- Time costing the Prius Model by David Topp - Proctor October 2008
- Time to re-think the hourly fee by Giles Watson - Proctor April 2007
- Update on assessment of costs by Paul Garrett - CLE paper May 2011
- What steps can lawyers take by Paul Agnew - Proctor September 2009