Guide to Discretionary Items in Bills of Costs
The obligation of parties and their lawyers to conduct proceedings in the Court consistently with the overarching purpose of civil practice and procedure includes the use of the most inexpensive and efficient practices reasonably available (see sections 37M and 37N of the Federal Court of Australia Act 1976).
With party and party bills of costs, taxing officers apply a “fair and reasonable” test to all claims, including any claims for items referred to in this guide and any disbursement claims (see the definition of “costs as between party and party” in the Dictionary to the Federal Court Rules 2011 (FCR 2011)). In exercising the discretion inherent in the “fair and reasonable” test, as well those arising under rules 40.30 and 40.31 of the FCR 2011, a taxing officer will consider the cost effectiveness of approaches adopted. Less efficient practices (for example a clerk attending at the Registry to present a document for filing rather than lodging it online through eLodgment) may result in a reduction in the amounts allowed for the relevant items and/or a reduction in any loading for skill, care and responsibility.
Schedule 3 to the FCR 2011 provides taxing officers with a discretion in relation to claims made for preparation of bills of costs (item 2.5), copying documents (item 9.1) and skill, care and responsibility (item 11.1). The information set out in the table below provides a guide about how those discretions are commonly exercised.
The approaches indicated in that table may be used by a taxing officer of the Federal Court when exercising powers under Division 40.2 (Taxation of Costs) of the FCR 2011. This guide is not, however, to be regarded as limiting the taxing officer’s discretion to allow higher or lower fees or disbursements if it is considered appropriate. Similarly, the guide is not to be regarded as limiting the taxing officer’s discretion as to the methodology by which those fees are quantified.
This guide takes effect from 1 October 2014.
Warwick Soden
Registrar
| Item | Common Approach |
|---|---|
| 2.5 - Bill of Costs | In accordance with item 1 (items 1.1, 1.2 & 1.3 of the Schedule).In accordance with item 1 (items 1.1, 1.2 & 1.3 of the Schedule). Notes: 1. As stated in item 1, work by a lawyer that was capable of performance by a law graduate/articled clerk or paralegal/clerk will be allowed at the lower item 1.2 or 1.3 rate. 2. Where a bill of costs is prepared by an external costs consultant, the amount charged by the costs consultant should be claimed as a disbursement. |
| 9.1 - Copies | For each printed side of a page - $0.25 Notes: 1. Where there is large or bulk copying, the rate allowed will usually be lower than $0.25. 2. Where copying is outsourced, the amount charged by the service provider should be claimed as a disbursement. |
| 11.1 - Skill, care and responsibility | A percentage of the amount allowed for items 1—10, in the range of 0—15%, is commonly allowed. Notes: Taxing officers will consider the matters set out in rule 40.31 and item 11.1, including lawyer's work already allowed at the item 1.1 rate, research under item 5.1 and counsel's fees already allowed. |
