2022 Inquiry into Legal Practitioners’ Scales of Costs
The Law Council is grateful for the opportunity to provide a submission to the Joint Costs Advisory Committee (JCAC) as part of its 2022 inquiry into the quantum of costs (including expenses and fees for witnesses) 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), and Federal Circuit and Family Court of Australia (Divisions 1) and (Division 2) (FCFCOA) – together, the Courts.
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 one of the Courts.
The Law Council maintains its concern that the scales of costs across the Courts have failed to keep pace with actual costs incurred by parties and do not reflect the value of the intellectual work undertaken by lawyers, current charging practices, current market conditions, and changes in the technology used by practitioners.
In this submission, the Law Council makes the following recommendations:
(a) the JCAC should recommend an increase in the scales of costs that is at least in accordance with the Federal Costs Advisory Committee (FCAC) Formula (4.0 per cent based on data for the March 2022 quarter);
(b) the JCAC should recommend that each of the Courts consider adopting a process whereby the scales are updated annually based on its recommendations;
(c) the JCAC should seek a referral from the Courts to consider the changes in the practices of the Courts and legal practitioners as a result of increased use of technology in order to ensure that the Courts’ scales of costs adequately reflect current practices. Alternatively, the Courts should implement a separate process for considering this matter;
(d) further to the FCAC formula, the JCAC should recommend an increase to the quantum of the scales in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021; and
(e) the JCAC should recommend that the Federal Court update the National Guide to Counsel Fees to recognise changes in market rates and market conditions affecting barristers' fees since the Guide was issued in 2013.