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Sir Terence O'Rort
3 July, 2007  
Daphnis to "guide" costs regime

The new (interim) arrangements for costs assessments in Queensland have a decidedly rickety feeling. Instead of a decent set of rules Daphnis de Jersey can just provide “guidance” about appropriate directions


imageUp here in Brisvegas things run differently.

There has been lots of trumpeting by the Queensland Law Society and the Bjelke-Beattie government to mark the new Legal Profession Act 2007 (most of which commenced on July 1).

However, amid all the gaiety it seems somebody forgot about making new rules about how customers who have been ripped-off by voracious solicitors can get any satisfaction.

Instead of rules and procedures we now have Daphnis de Jersey’s (pic) holy writ. The CJ issued on June 28 Practice Direction No.7 of 2007 quaintly entitled Costs Assessments: Interim Arrangements.

According to Daphnis:

“The court is moving to establish, by statutory amendment and amendment of the UCPR, a regime for the assessment of costs by accredited costs assessors, in addition to assessment by the Registrar. This Practice Direction is intended to set up a mechanism for the assessment of costs other than by the Registrar pending the establishment of that regime.”

Brilliant. Except that no rules for the accreditation of costs assessors have yet been made.

But wait! Daphnis, Trainspotter and his pals might have the answer in paragraph 3, which says:

“It is envisaged these assessments be carried out by members of the legal profession, and acknowledged that it would not be necessary for this purpose that a current practising certificate be held.”

How it works is that everyone mills around having cups of tea while they …

“should endeavour to agree on the identity of the person to carry out that assessment.”

Picture the scene: the parties have just spent two weeks tearing each other’s fingernails out in a bitterly contested Supreme Court trial yet, according to Daphnis, the party who has to fork-up will be perfectly happy to do everything possible to hasten the day payment is to be made.

But there’s more; paragraph 4 states:

“The parties may agree that the assessment be carried out by an appropriately qualified person admitted to the legal profession.”

Well at least Rhino Baker can’t be a costs assessor, but retired buffers who once had practising certificates are permitted to do the job.

And let’s face it, who would be better informed about the current costs of litigation than people who have not practised for ages?

Paragraph 8 is the Houghton provision:

“There are currently within the Registry, assessments which stand part heard… Parties to those proceedings are encouraged to invoke the procedure contemplated by this practice direction with a view to bringing those assessments to a conclusion.”

Perhaps we could paraphrase Daphnis’ real meaning in these terms:

“There are currently within the Registry, assessments which stand part heard by Bob Houghton which are not the subject of any transitional provisions and which cannot be heard by anyone else without re-doing the entire assessment or without legislative intervention but we forgot about this when we got rid of Bob which unfortunately is a terrible stuff-up by me and the Trainspotter.”

So much for party and party costs.

The position becomes even more amusing when we turn to the second half of Daphnis’ decree, dealing with solicitor and client costs.

It refers to Rule 743A of the Uniform Civil Procedure Rules, and goes on to say that where a punter makes application to a court for a costs assessment the court may give directions about how the assessment is to be carried out and the Chief Justice may by practice direction provide “guidance as to what directions may be appropriate”.

Now the entire court hierarchy in Queensland is dependent upon Daphnis’ “guidance”. Obviously, the CJ is going to be far too busy in Queensland to head to Canberra when the Tub goes.

Maybe he knows already that Pat Keane has the nod.

There follows a long list of things about which Daphnis’ guidance may be sought, including: who carries out the assessment, issues for determination, the delivery of itemised costs statements, grounds of objection, procedure for assessment, etc.

What’s wrong with just having some rules about these things?

Instead, we wait for someone to bring the tablets of stone down from Daphnis’ mountain in George Street.

In the meantime, the barristers charge for reading time, consultation time, appearance time, adjournment time, travel time, thinking time, making a phone call about picking up the brief time, making another phone call about payment of their account time and making another phone call about being taken to lunch time.

Not to be left out, solicitors charge for the conference by the two partners with the senior associate, the associate, the two employed solicitors and the two paralegals not forgetting the consultations, conferences, internal meetings, internal memos and supervision.

And all of this before they get to court.

What is going on in George Street?

Sir Terence O’Rort reporting.