Under section 3.4.9 of the Legal Profession Act 2004 (the Act) we must disclose to you (the client) the following information relating to legal costs. There is a prescribed form for this – which is set out at the end. The following is my own “plain English” form.
The Act allows a law practice and you to agree on how the law practice’s legal costs are to be calculated and paid. It is called a “costs agreement” and it may be enforced in the same way as any other contract. You have the right to negotiate a costs agreement with us.
This document constitutes a disclosure statement and a costs agreement, and sets out the standard terms of engagement and information on fees and costs for Omond & Co. (the firm). It is subject to any other agreement between the firm and a client.
You may accept the costs agreement by signing and returning the copy of this document, or by continuing to give instructions to us in any ongoing or new matter.
1. The work we do
We will only accept work when we believe we can do it on a cost-efficient basis.
If we do not believe we have the experience or expertise to do a particular piece of work, we will advise you of this, and suggest a number of options to you as to how the work should be handled. This may involve us advising you of another firm or individual lawyer who we believe will be able to the work competently and cost-effectively and:
· you instructing that firm or person directly, or
· us instructing that firm or person on your behalf, and managing the process for you.
2. What we need from you
For us to be able to provide accurate, timely legal advice, we need you to give us full details of the background and other circumstances relating to the matter on which our assistance is sought. If you can provide this in writing, it is obviously best for all concerned.
Please note that we provide legal advice only. Although we will always try to provide this in the context of your commercial circumstances, we do not provide commercial, financial or other advice.
Our duty of care is to the client named in our engagement letter or client agreement. If another person wants to rely on our advice, they do so at their own risk, ie they can only sue the firm if we agree in writing beforehand that they can rely on our advice.
3. Fees and costs
We offer a range of different options for calculation of fees. Please feel free to discuss these with us. Examples of these are set out on our website.
In the absence of any specific agreement, our fees will be based on hourly rates. The current rate for our principal, James Omond, is $395 per hour, effective 1 July 2009. Hourly rates for any other relevant fee earners are set out on our website. Rates may change from time to time. The revised rate applies to your matter from the date of the change.
For each new matter we undertake, we will attempt to provide you with an estimate of our legal costs, including other charges.
This estimate will not be binding on us as the work required may change. It is required to be given to you by the Act and will be based on our understanding of the present circumstances. If this estimate or the scope of this work changes, we may need to revise the estimate.
If it is not reasonably practicable to estimate the total legal costs, we will provide a range of estimates of the total legal costs, and the major variables that will affect the calculation of these costs.
We do not bill in ‘6-minute units’, but on the actual time incurred on a matter.
All travel time specifically for a client is charged at 100% of the applicable hourly rate except for:
· travel time spent working productively on other clients’ files;
· travel time in excess of 12 hours in any one day,
neither of which is chargeable.
The client must reimburse all reasonable out of pocket expenses incurred by the firm when travelling at the client’s request including (without limitation):
· economy class travel (business class for flights of 2 hours or more duration);
· taxi and/or rental car charges; and
· reasonable accommodation and living expenses.
When time charges apply, the firm will not apply any mileage charges for use of a private car in such travel.
Disbursements will be charged at cost, except that there will be no charge for:
· secretarial or word processing services
· postage
· STD telephone calls, mobile phone calls, receiving or sending faxes, and incidental photocopying other than in exceptional circumstances
· file opening / administration fees.
We will always try to give you an estimate of the likely fees and disbursements if the actual fees and disbursements are not known for a particular matter. The actual fees and costs may differ from the estimate if the scope or nature of the matter or of our role changes or unforeseen circumstances arise. We may also enter into a ‘fixed fee’ arrangement under which we take on the risk of such variations.
All necessary and proper disbursements will be incurred by the firm practice on your behalf.
Unless specified otherwise, quoted hourly rates do not include GST, and GST will be added to the amount to be paid.
The firm is registered for GST purposes, and will submit tax invoices in the form prescribed for the purposes of the GST legislation.
4. Method of billing and payment
We will send you our account regularly (usually monthly). Accounts are payable on receipt, but in any event not later than 14 days after the date of issue. Where you consent, we will provide accounts in electronic format, with electronic signature.
We may charge you interest on unpaid accounts. Interest will be charged on legal costs at the maximum rate permissible under the Act or, if no such rate is specified, at a rate equal to the rate payable under the Penalty Interest Rates Act 1983 (Vic) as at the relevant date, increased by 2 percent.
If you do not promptly pay accounts of third parties retained to do work for you(e.g. barristers, overseas trade mark attornies), we will pay these directly, and reserve the right to apply a margin of up to 10% for making such payment on your behalf.
If our accounts remain unpaid, we may cease work on your matter after giving you reasonable notice, and we may retain the file until all outstanding accounts have been paid.
An itemised bill of costs will be given on your request made within 30 days after receipt of a lump sum bill of costs.
5. Progress reports
You may request a written progress report at any time. Otherwise, we will give you progress reports at suitable intervals. Please let us know if you require a report at another time.
6. If you dispute our legal costs
If you have any concern about our legal costs, or our legal services, please do not hesitate to speak to James Omond. If we cannot satisfactorily resolve your concern with you, you may:
Costs Review
You may apply to the Taxing Master of the Supreme Court of Victoria for a review of the whole or any part of legal costs. An application for a costs review may be made even if the legal costs have been wholly or partly paid.
There are different time limits that apply for making an application for costs review because of changes in legislation.
If you first instructed us before 12 December 2005, an application for a costs review must be made within two months of receiving the bill.
If you first instructed us on or after 12 December 2005, the time limit varies according to when you received the bill of costs:
- If you received the bill before 9 May 2007, an application for costs review must be made within 60 days of receiving the bill.
- If you received the bill on or after 9 May 2007, an application for costs review must be made within 12 months after –
- the bill was given or the request for payment was made to you; or
- the costs were paid if neither a bill was given nor a request was made.
The Taxing Master has a discretion in relation to the legal costs of the review process, the issue of who pays the legal costs of the review process can depend how much (if at all) the bill is reduced.
For further information about applications to the Taxing Master, contact the Associate to the Taxing Master on 9603 9324.
The Setting Aside Of A Costs Agreement
If you have entered into a costs agreement, you may apply to the Victorian Civil and Administrative Tribunal (the Tribunal) for an order that the costs agreement be set aside.
The Tribunal may set aside a costs agreement if satisfied that the agreement is not fair or reasonable.
If the costs agreement is set aside, the Tribunal may order the legal practitioner to pay your costs of the hearing. If the costs agreement is not set aside, the Tribunal may order you to pay the legal practitioner's costs of the hearing.
There is no time limit for making this type of application.
For further information, contact the Legal Practice List of the Tribunal on
9628 9081 or visit its website www.vcat.vic.gov.au.
Making A Complaint To The Legal Services Commissioner
The Legal Services Commissioner may accept complaints involving a dispute (costs dispute) in relation to legal costs not exceeding $25,000 in respect of any one matter.
A complaint involving a costs dispute must be made within 60 days after the legal costs were payable or, if an itemised bill was requested in respect of those costs, within 30 days after the request was complied with. The Commissioner may accept a complaint involving a costs dispute made outside of this period, but made within 4 months after the end of that period, if satisfied that:
· there was a reasonable cause for the delay in making the complaint; and
· legal proceedings have not been commenced for the recovery or review of the legal costs that are the subject of the complaint.
Subject to limited exceptions, a complainant who makes a complaint involving a costs dispute must lodge the unpaid amount of the disputed costs with the Commissioner within 28 days after making the complaint.
7. Going to Court
If your matter involves going to court:
· you may need a barrister to appear on your behalf. We may ask you to enter into a cost agreement directly with that barrister.
· you should be aware that, even if you win your case and the court orders the other party to pay your costs, the amount the other party has to pay is normally less than the fees and costs you have to pay to your barrister (and to us), and possibly significantly less.
· the Court may make an order that you pay another party’s legal fees and costs (for instance, if you lose the case). These fees and costs would be in addition to those you have to pay to your barrister (and to us).
8. Electronic mail
Email communications and electronic transmissions of confidential or privileged documents or advice is a convenient method of delivery. However, electronic internet mail is not secure and any communications or documents transmitted may be interfered with, contain computer viruses or other defects and may not be successfully replicated on other systems. You agree that we will not be liable for any copying, recording, reading or interference by others during or after a transmission, for any delay or non-delivery, or for any damage caused in connection with a transmission.
9. Files
In the interest of storage space, we may destroy our files for your matters (except documents in safe custody) at any time 7 years after the date of our final bill to you on the matter.
10. Official enquiries
We may be required in the future to participate in any enquiry, commission or proceedings arising out of our engagement by you. This may, for example, involve us producing documents, seeking to claim and defend your privilege to resist inspection or disclosure of certain documents or giving evidence at an enquiry. We will seek your instructions if these circumstances arise, but you agree to reimburse us for our out-of-pocket expenses and for the time we spend at our then-current hourly rates.
11. Jurisdiction
The law of Victoria shall apply to legal costs in this matter.
You have the right to sign a costs agreement under a corresponding law or to advise us that you require the law of another jurisdiction to apply.
12. Engagement of another lawyer
We may need to engage on your behalf a barrister or other lawyer to provide specialist advice or services. We will consult you about the terms of this engagement and provide you with a statement setting out the details of this person's fee before incurring the expense.
13. Ending our engagement
You may end our engagement by written notice at any time. If you do this, you must pay our legal costs up until that time.
Circumstances may arise (such as a conflict of interest) which make it impossible for us to continue to act for you. If this happens, we will contact you immediately.
If you do not pay our account or if you fail to pay money in advance if it is requested, we may stop work until we are paid. If the account continues to remain unpaid we may cease to act for you.
If we cease to act for you:
· we will not incur any liability as a result
· we will remove our name from the court record in any court proceedings
· you will receive a final account which will include all outstanding legal costs
· you must pay our legal costs up until the date when we cease to act
· we retain the right to keep your documents until we are paid.
14. Acceptance
Your continued instructions will constitute confirmation of your acceptance of these terms.
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Date of issue of these terms: 1 July 2009
Form B3, Regulation 3.4.4
Form of Disclosure of Costs to Clients
Legal costs - your right to know
You have the right to-
· negotiate a costs agreement with us
· receive a bill of costs from us
· request an itemised bill of costs within 30 days after you receive a lump sum bill from us
· request written reports about the progress of your matter and the costs incurred in your matter
· apply for costs to be assessed within 12 months if you are unhappy with our costs
· apply for the costs agreement to be set aside
· make a complaint to the Legal Services Commissioner. This includes making a complaint that involves a civil dispute to the Legal Services Commissioner within 60 days after the legal costs were payable or, if an itemised bill was requested in respect of those costs, within 30 days after the request was complied with
· accept or reject any offer we make for an interstate costs law to apply to your matter
· notify us that you require an interstate costs law to apply to your matter
For more information about your rights, please read the fact sheet entitled “Legal costs-your right to know”. You can ask us for a copy, or obtain it from the Legal Services Commissioner (or download it from their website at http://www.lsc.vic.gov.au/documents/LSC_Your_right_to_know.pdf ).
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