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Sir Terence O'Rort
12 December, 2007  
Daphnis' Rules, OK!

Queensland’s new costs rules. The assessors should not be hampered by skill or rules. Daphnis de Jersey declares this a “win for consumers”


imageQueensland CJ Daphnis de Jersey has delivered an early Christmas present to the local legal flock in the form of the Uniform Civil Procedure Amendment Rule (No.4) 2007.

I’ve already had occasion to report on the annoying habits of the Supreme Court Registrars who had the temerity to suggest that Brisvegas lawyers might overcharge.

Former Taxing Officer Bob Houghton was beheaded earlier this year and Deputy Taxing Officer John McNamara was “reassigned” to the Magistrates Court.

The problem with the taxing system was all the funny little rules and procedures that meant nobody could understood how costs were taxed.

The end result sometimes meant that one of society’s most downtrodden groups, Queensland lawyers, didn’t always get their full pound of flesh from the punters.

In a bold move Daphnis has done away with these 19th century relics by making it optional for costs assessors appointed by the court to know anything about assessing costs.

Under the latest edict the CJ can issue a practice direction specifying what matters must be contained in an affidavit to be filed by a person wanting to be appointed as a costs assessor.

Under rule 743J a person is eligible for appointment as a costs assessor if they are an Australian lawyer who has at least five years’ experience in either or both the practice of law or the assessment of costs.

The drafting magic in a sweep gets rid of the necessity for an applicant to know anything about “the law of costs”.

But just to make sure that no other tricks can be played on poor fee gougers special attention has been paid in the rules as to how “costs assessors” are to assess the costs.

There are no rules! So simple and yet so elegant.

Rule 720(1) says that the costs assessor can decide on the procedure to be followed on the assessment and rule 720(4) says that the costs assessor can do all or any of the following:

(a) hear the costs assessment in private;

(b) carry out the costs assessment on the papers without an oral hearing;

(c) not be bound by laws of evidence or procedure applying to a proceeding in the court;

(d) be informed of the facts in any way the cost assessor considers appropriate;

(e) not make a record of the evidence given.

imageNever let it be said that Daphnis (pic) does not consider the rights of the punters because rule 720(2) ordains that whatever procedure is adopted by the costs assessor it must be “consistent with the rules of natural justice … and fair and efficient”.

What could be more transparent for the post-gouged customer than a process that is conducted in private, without anyone attending, where the rules of evidence don’t apply and there is no record made of the process?

In effect a solicitor from Charleville who has had a ticket for five years and has done some appearances in the Magistrates Court and a few cottage conveyances is able to assess the lawful amount of costs due between solicitor and client and party and party. No law required.

The spirit of giving is alive and well in Daphnisland and it’s about time that this little sackful of goodies was dropped down the chimney to the needy members of the legal profession “in and for the State of Queensland”.

Last Friday (Dec. 7) at the Christmas breakfast the CJ extolled the splendid new costs regime to the hash brown and scrambled egg munching fraternity of big-wigs.

He said: “the consumer should be the winner in this new scenario.”

We can only assume he was joking.

Sir Terence O’Rort reporting