County Court (Chapter I Costs Amendment) Rules 2014

Authorised by the Chief Parliamentary Counsel Authorised Version i County Court (Chapter I Costs Amendment) Rules 2014 S.R. No. 150/2014 TABLE OF PROVISIONS Rule Page 1 Object 1 2 Authorising provisions 1 3 Commencement 1 4 Principal Rules 1 5 Definitions 1 6 Copies on request 2 7 Inspection of documents referred to in affidavit of documents 2 8 Definitions and application 2 9 Rule 63A.05 substituted 2 63A.05 Costs to be taxed by Costs Court 2 10 Default judgment 2 11 Rule 63A.17 substituted 3 63A.17 Amendment 3 12 Rule 63A.20 substituted and new Rule 63A.20.1 inserted 3 63A.20 Interlocutory application 3 63A.20.1 Taxation of costs on interlocutory application or hearing 3 13 Rule 63A.22 substituted 4 63A.22 Costs reserved 4 14 Evidence transcript costs 4 15 Costs liability of lawyer 4 16 Rule 63A.28 substituted 4 63A.28 Bases of taxation 4 17 Party and party basis 4 18 Rule 63A.30 substituted 5 63A.30 Standard basis 5 19 Rules 63A.31 substituted 5 63A.31 Usual basis of taxation 5 20 Where solicitor and client basis applicable and party as trustee 5 21 Costs and fees 5 22 Heading to Part 5 of Order 63A amended 5 23 New Rule 63A.44 inserted 6 63A.44 Charge of legal practitioner for work done out of Victoria 6 24 Discretionary costs 6 25 Rules 63A.52, 63A.53 and 63A.54 revoked 7 -- 1 of 15 -- Rule Page ii Authorised by the Chief Parliamentary Counsel 26 Rules 63A.59 to 63A.61 substituted 7 63A.59 Basis of taxation of costs payable by client 7 63A.60 Taxation between solicitor and client 8 63A.61 Basis of taxation of costs payable otherwise than by client 8 27 Rule 63A.72 substituted 8 63A.72 Increase or decrease of amounts in Scale 8 28 Rule 63A.82 substituted and new Part 8 inserted 9 63A.82 Hearing and trial fees 9 PART 8—TRANSITIONAL PROVISIONS 10 63A.83 Transitional provision—County Court (Chapter I Costs Amendment) Rules 2014 10 29 Scale of costs 10 30 Schedule 1 amended 10 31 New Schedule 2 inserted 10 SCHEDULE 2—Witnesses' Expenses and Interpreters' Allowances 10 ═══════════════ ENDNOTES 13 -- 2 of 15 -- Authorised by the Chief Parliamentary Counsel Authorised Version 1 STATUTORY RULES 2014 S.R. No. 150/2014 County Court Act 1958 County Court (Chapter I Costs Amendment) Rules 2014 A majority of the Judges of the County Court makes the following Rules: 1 Object The object of these Rules is to amend Chapter I of the Rules of the County Court in relation to costs. 2 Authorising provisions These Rules are made under section 78 of the County Court Act 1958 and all other enabling powers. 3 Commencement These Rules come into operation on 6 October 2014. 4 Principal Rules In these Rules, the County Court Civil Procedure Rules 20081 are called the Principal Rules. 5 Definitions In Rule 1.13(1) of the Principal Rules insert the following definition— "County Court costs scale means a fee, charge or amount that is 80 per cent of the applicable rate set out in Appendix A to Chapter I of the Rules of the Supreme Court;". -- 3 of 15 -- S.R. No. 150/2014 County Court (Chapter I Costs Amendment) Rules 2014 Authorised by the Chief Parliamentary Counsel 2 6 Copies on request In Rule 27.05(1) of the Principal Rules, for "rate set forth in Appendix A" substitute "County Court costs scale". 7 Inspection of documents referred to in affidavit of documents In Rule 29.09(6)(b) of the Principal Rules, for "in Appendix A" substitute "at the County Court costs scale". 8 Definitions and application (1) In Rule 63A.01(1) of the Principal Rules, in the definition of costs, after "disbursements" insert "and reasonable costs of recording and transcript". (2) After Rule 63A.01(4) of the Principal Rules insert— "(5) For the purposes of this Order, a reference in Appendix A of Chapter I of the Rules of the Supreme Court to the Supreme Court is taken to be a reference to the County Court.". 9 Rule 63A.05 substituted For Rule 63A.05 of the Principal Rules substitute— "63A.05 Costs to be taxed by Costs Court Unless the Court otherwise orders, costs to be taxed in accordance with this Order shall be taxed in the Costs Court.". 10 Default judgment In Rule 63A.08(1) of the Principal Rules, for "the appropriate scale in Appendix A" substitute "the County Court costs scale". r. 6 -- 4 of 15 -- S.R. No. 150/2014 County Court (Chapter I Costs Amendment) Rules 2014 Authorised by the Chief Parliamentary Counsel 3 11 Rule 63A.17 substituted For Rule 63A.17 of the Principal Rules substitute— "63A.17 Amendment Where a pleading is amended (whether with or without leave) the costs of and occasioned by the amendment and the costs of any application for leave to make the amendment are the parties' costs in the proceeding, unless the Court otherwise orders.". 12 Rule 63A.20 substituted and new Rule 63A.20.1 inserted For Rule 63A.20 of the Principal Rules substitute— "63A.20 Interlocutory application Where an interlocutory or other application is made in a proceeding and— (a) no order is made on the application; or (b) the order made is silent as to costs— the costs are the parties' costs in the proceeding, unless the Court otherwise orders. 63A.20.1 Taxation of costs on interlocutory application or hearing If an order for costs is made on an interlocutory application or hearing, the party in whose favour the order is made shall not tax those costs until the proceeding in which the order is made is completed, unless the Court orders that the costs may be taxed immediately.". r. 11 -- 5 of 15 -- S.R. No. 150/2014 County Court (Chapter I Costs Amendment) Rules 2014 Authorised by the Chief Parliamentary Counsel 4 13 Rule 63A.22 substituted For Rule 63A.22 of the Principal Rules substitute— "63A.22 Costs reserved Where by order of the Court the costs of any interlocutory or other application, or of any step in a proceeding, are reserved, the reserved costs are the parties' costs in the proceeding, unless the Court otherwise orders.". 14 Evidence transcript costs Rule 63A.22.1 of the Principal Rules is revoked. 15 Costs liability of lawyer (1) In Rule 63A.23(4) of the Principal Rules, for "Registrar" substitute "Costs Court". (2) Rule 63A.23(5) of the Principal Rules is revoked. 16 Rule 63A.28 substituted For Rule 63A.28 of the Principal Rules substitute— "63A.28 Bases of taxation Subject to this Part, costs in a proceeding which are to be taxed shall be taxed on— (a) a standard basis; (b) an indemnity basis; or (c) such other basis as the Court may direct.". 17 Party and party basis Rule 63A.29 of the Principal Rules is revoked. r. 13 -- 6 of 15 -- S.R. No. 150/2014 County Court (Chapter I Costs Amendment) Rules 2014 Authorised by the Chief Parliamentary Counsel 5 18 Rule 63A.30 substituted For Rule 63A.30 of the Principal Rules substitute— "63A.30 Standard basis On a taxation on a standard basis, all costs reasonably incurred and of reasonable amount shall be allowed.". 19 Rules 63A.31 substituted For Rule 63A.31 of the Principal Rules substitute— "63A.31 Usual basis of taxation Except as provided by these Rules or any order of the Court, including the Costs Court, costs shall be taxed on the standard basis.". 20 Where solicitor and client basis applicable and party as trustee Rules 63A.32 and 63A.33 of the Principal Rules are revoked. 21 Costs and fees (1) In Rule 63A.34A(1)(a) of the Principal Rules, for "Scale of Costs contained in Appendix A" substitute "County Court costs scale or the relevant Scale of Costs". (2) For Rule 63A.34A(3) and (4) of the Principal Rules substitute— "(3) Witnesses' expenses and interpreters' allowances shall be fixed in accordance with the scale in Schedule 2.". 22 Heading to Part 5 of Order 63A amended In the heading to Part 5 of Order 63A of the Principal Rules omit "PARTY AND PARTY". r. 18 -- 7 of 15 -- S.R. No. 150/2014 County Court (Chapter I Costs Amendment) Rules 2014 Authorised by the Chief Parliamentary Counsel 6 23 New Rule 63A.44 inserted After Rule 63A.38 of the Principal Rules insert— "63A.44 Charge of legal practitioner for work done out of Victoria Where a bill includes a charge for work done out of Victoria by a legal practitioner— (a) so far as is practicable, the charge shall, if allowed, be allowed in an amount appropriate to the place where the work was done; and (b) except where the work was done by a legal practitioner who is a member of, or employed by, the same legal practice, the charge shall be shown as a disbursement.". 24 Discretionary costs (1) In Rule 63A.48(1) of the Principal Rules, for "Appendix A shall be allowed at the discretion of the Registrar or the Costs Court" substitute "the County Court costs scale shall be allowed at the discretion of the Costs Court". (2) For Rule 63A.48(2) of the Principal Rules substitute— "(2) In exercising the discretion under paragraph (1), the Costs Court shall have regard to the following— (a) the complexity of the matter; (b) the difficulty or novelty of the questions involved in the matter; (c) the skill, specialised knowledge and responsibility involved and the time and labour expended by the legal practitioner; r. 23 -- 8 of 15 -- S.R. No. 150/2014 County Court (Chapter I Costs Amendment) Rules 2014 Authorised by the Chief Parliamentary Counsel 7 (d) the number and importance of the documents prepared and perused, regardless of length; (e) the amount or value of money or property involved; (f) research and consideration of questions of law and fact; (g) the general care and conduct of the legal practitioner, having regard to the instructions and all relevant circumstances; (h) the time within which the work was required to be done; (i) allowances otherwise made in accordance with the County Court costs scale; (j) any other relevant matter.". 25 Rules 63A.52, 63A.53 and 63A.54 revoked Rules 63A.52, 63A.53 and 63A.54 of the Principal Rules are revoked. 26 Rules 63A.59 to 63A.61 substituted For Rules 63A.59 to 63A.61 of the Principal Rules substitute— "63A.59 Basis of taxation of costs payable by client Subject to Rule 63A.60, costs payable to a solicitor by the solicitor's client to which this Part applies shall, subject to any Act or any order of the Court or any agreement between the solicitor and the client, be taxed on the standard basis as defined by Rule 63A.30. r. 25 -- 9 of 15 -- S.R. No. 150/2014 County Court (Chapter I Costs Amendment) Rules 2014 Authorised by the Chief Parliamentary Counsel 8 63A.60 Taxation between solicitor and client (1) Costs not reasonably incurred or not of reasonable amount may nevertheless be allowed to a solicitor against a client if— (a) the costs were incurred with the authority of or the amount was authorised by the client; and (b) before the costs were incurred the solicitor expressly warned the client that the costs might not be allowed on a taxation of costs as between party and party. (2) An authority for the purpose of this Rule may be express or implied. (3) Where the client is a person under disability, references to the client in paragraph (1) include references to the litigation guardian of the client. 63A.61 Basis of taxation of costs payable otherwise than by client Costs payable to a solicitor by a person other than the client to which this Part applies shall, subject to any Act or any order of the Court or any agreement between that person and the client, be taxed on the standard basis as defined by Rule 63A.30.". 27 Rule 63A.72 substituted For Rule 63A.72 of the Principal Rules substitute— "63A.72 Increase or decrease of amounts in Scale In any particular taxation of costs, the Court or the Costs Court may increase or decrease the amount or value of any allowance or expense in the County Court costs scale or r. 27 -- 10 of 15 -- S.R. No. 150/2014 County Court (Chapter I Costs Amendment) Rules 2014 Authorised by the Chief Parliamentary Counsel 9 Schedule 2 as the Court or the Costs Court thinks fit.". 28 Rule 63A.82 substituted and new Part 8 inserted For Rule 63A.82 of the Principal Rules substitute— "63A.82 Hearing and trial fees (1) Despite the provisions of any applicable scale, the fees payable to counsel to appear at a hearing or trial shall be at the discretion of the Court or the Costs Court which may fix such fees— (a) on the basis of daily fees; (b) as a lump sum fee covering the whole of the hearing or trial; or (c) on such other basis as the Court or the Costs Court considers appropriate. (2) Where such fees are fixed on the basis of daily fees— (a) the daily fee for the second or any subsequent day of the hearing or trial shall, unless the Court or the Costs Court determines otherwise by reason of the special circumstances of the case, include all time spent by counsel in preparation and conferences on that day of the hearing or trial as well as the actual time spent by counsel in Court on the hearing or trial on that day; and r. 28 -- 11 of 15 -- S.R. No. 150/2014 County Court (Chapter I Costs Amendment) Rules 2014 Authorised by the Chief Parliamentary Counsel 10 (b) the Court or the Costs Court may allow differing amounts in respect of various days of the hearing or trial. PART 8—TRANSITIONAL PROVISIONS 63A.83 Transitional provision—County Court (Chapter I Costs Amendment) Rules 2014 For the avoidance of doubt, these Rules, as amended by the County Court (Chapter I Costs Amendment) Rules 2014, apply to all things done or required to be done or omitted to be done on or after 6 October 2014 in, or in relation to, any proceeding in the Court, including the Costs Court (including all work and all amendments, applications and orders), regardless of the date of commencement of the proceeding.". 29 Scale of costs Appendix A to the Principal Rules is revoked. 30 Schedule 1 amended The note at the foot of Schedule 1 to the Principal Rules is revoked. 31 New Schedule 2 inserted After Schedule 1 to the Principal Rules insert— "SCHEDULE 2 WITNESSES' EXPENSES AND INTERPRETERS' ALLOWANCES The charges in this Scale are exclusive of any GST chargeable. 1 Witnesses' expenses (1) Witnesses giving evidence in an expert or professional capacity—$175.00–$352.00 per hour or part thereof, not exceeding $2189.00 per day. r. 29 -- 12 of 15 -- S.R. No. 150/2014 County Court (Chapter I Costs Amendment) Rules 2014 Authorised by the Chief Parliamentary Counsel 11 (2) Persons not referred to in the preceding paragraph who are engaged in business as principals on their own behalf— $365.00 per half day or part thereof but not in any event to exceed $656.00 in any one day. (3) Other witnesses—$108.00 per hour, provided that a witness who receives wages, salary, remuneration or fees may be allowed the amount actually lost by reason of attendance not exceeding $656.00 per day. (4) Travelling expenses, if witnesses' residence or place of business is more than 7 kilometres from place of hearing, the sum reasonably and actually paid. (5) Witnesses attending in more than one case will be entitled to a proportionate part only in each case. (6) Professional, scientific or expert witnesses, for time necessarily occupied in qualifying to give evidence, to be allowed such reasonable sum as was necessarily and properly incurred. 2 Meals and accommodation of witnesses and transport costs (1) A reasonable sum to be fixed by the Costs Court. (2) In cases in which it is considered reasonable to bring heavy or bulky articles to court or the precincts of the court as exhibits or for inspection by Judge or Jury, a reasonable sum may be allowed for costs of conveyance or transport. 3 Interpreters' allowances (1) Attending professional, scientific or expert witnesses qualifying to give evidence, attending conference with solicitor or counsel $74.00, or for each hour $52.00 but not in any event to exceed $317.00 in any one day. (2) Attending court where the period of absence from the place of business or residence is 4 hours or less, $182.00, and for each hour or part thereof in excess of 4 hours, $52.00, but not in any event to exceed $317.00 in any one day. 4 Travelling, accommodation and meals of interpreters A reasonable sum to be fixed by the Costs Court.". r. 31 -- 13 of 15 -- S.R. No. 150/2014 County Court (Chapter I Costs Amendment) Rules 2014 Authorised by the Chief Parliamentary Counsel 12 Dated: 1 October 2014 M. ROZENES, Chief Judge K. L. BOURKE G. R. ANDERSON J. M. J. PATRICK J. A. SMALLWOOD P. G. LACAVA S. M. COHEN F. R. GUCCIARDO M. E. SEXTON M. GAMBLE F. E. HOGAN H. T. MASON I. E. LAWSON G. P. MULLALY J. A. CAMPTON K. E. KINGS W. A. WILMOTH J. D. MONTGOMERY F. MILLANE J. L. PARRISH S. S. DAVIS G. T. CANNON F. P. HAMPEL M. E. DEAN J. G. MORRISH J. F. CARMODY D. A. PARSONS R. J. H. MAIDMENT A. J. HOWARD R. H. SMITH M. D. MURPHY W. E. STUART M. E. KENNEDY D. G. BROOKES D. L. ALLEN J. A. JORDAN P. G. MISSO ═══════════════ r. 31 -- 14 of 15 -- S.R. No. 150/2014 County Court (Chapter I Costs Amendment) Rules 2014 Authorised by the Chief Parliamentary Counsel 13 ENDNOTES 1 Rule 4: S.R. No. 148/2008. Reprint No. 2 as at 1 January 2014. Reprinted to S.R. No. 167/2013. Subsequently amended by S.R. No. 100/2014. Endnotes -- 15 of 15 --