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2020 Inquiry into Legal Practitioners’ Scales of Costs

The submission to the Joint Costs Advisory Committee’s (JCAC) 2020 inquiry into the quantum of costs allowable to legal practitioners pursuant to the scales of costs contained in the rules of the High Court of Australia (High Court), Federal Court of Australia (Federal Court), Family Court of Australia (Family Court) and Federal Circuit Court of Australia (Federal Circuit Court) was prepared by the Law Council of Australia. 

The JCAC’s inquiry again provides an opportunity to ensure that parties awarded costs are, as much as possible, not out-of-pocket following resolution of their legal matter in a federal court.

The cost of litigation and accessing legal representation in Australia is an issue of ongoing concern to the community and the legal profession. Clients must be able to have confidence that what is charged by lawyers, and what may be recovered, is appropriate and reasonable, while legal practitioners have a right to be fairly remunerated for their skill and labour.

The award of costs should provide a just result to the successful party, who should not be substantially out-of-pocket after an order for costs is made. As the Law Council has submitted in previous years, it is concerned that the scales of costs have failed to keep pace with actual costs incurred by parties and do not reflect the value of the intellectual work undertaken by practitioners; current charging practices; or changes in the technology used within firms and by practitioners. The Law Council understands that in some cases, the actual costs incurred by firms has increased as a result of the COVID-19 pandemic.

The Law Council submits that the recommendations of the JCAC each year should be expeditiously enacted by the various federal courts to ensure that any discrepancy between the scales and the actual costs incurred is minimised and therefore that practitioners and their clients are not losing the benefit of the annual increases recommended by the JCAC.
 

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