National Competition Policy Review of the Legal Profession Act 1987


Chapter Twelve - Costs and Costs Assessment


Table of Contents

I INTRODUCTION II CURRENT SCHEME Cost disclosure Cost assessment Mediation Appeals Costs fixed by regulations III EVALUATION Costs disclosure Method of calculation of costs Obtaining information about costs Conditional uplift fee Revision of a disclosure or an estimate Costs assessment Access to costs assessment Comparative cost information Third party matters A return to scales for third party matters? Right of appeal Mediation Broader issues: the costs indemnity rule and costs shifting Legal insurance Alternative dispute resolution

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I. INTRODUCTION

12.1 Principle 5 of the COAG Working Party Report stated that the Working Party supported moves to market based measures for establishing the price of legal services. Full disclosure and voluntary fee agreements were important elements of reform. The working group recommended that fee scales should not be used to set prices in the market, and supported contingency fee arrangements, including conditional uplift fees, as they would increase access to the justice system. The COAG Working Party also supported plain English fee agreements, and independent review of fee agreements and outcomes.

12.2 The Access to Justice 'Action Plan' recommended a number of reforms regarding the regulation of lawyer-client costs. These included the abolition of fee scales, the introduction of mandatory written costs agreements between lawyers and clients at the commencement of a matter, the introduction of penalties against lawyers who failed to comply with disclosure requirements, enabling the courts to set aside unfair costs agreements and allowing mediation of costs disputes for bills up to a specified amount. Regarding party-party costs, the Access to Justice 'Action Plan' recommended that if the costs indemnity rule were maintained, costs should be assessed "by reference to reasonable market rates for the legal services properly performed on behalf of that party for the purposes of the litigation.[3]

12.3 The reforms recommended by the COAG Working Party and the Trade Practices Commission Report were implemented by the 1993 Act, which inserted a new Part 11 into the Legal Profession Act. The 1993 Act abolished most scales for fees for legal services, as it was perceived that fee scales were operating as base fees and stifled competition. Further, consumers could not readily compare prices for comparable services and thus found it difficult to shop around for legal services. Fee deregulation coupled with disclosure were regarded as a means of facilitating competition in the market and addressing the disparity in information between providers of legal services and consumers.

12.4 The amendments made by the Legal Profession Reform Act were cited with approval in the Trade Practices Commission report. However, the operation of the costs reforms in facilitating the creation of a competitive market for legal services, has yet to be evaluated.

12.5 Scales of costs have also been largely abolished in Victoria. Part 4 of the Legal Practice Act 1996 (Vic) sets out a scheme for costs disclosure and review of fees which is similar to Part 11. However, there are some important differences, which are canvassed below.

II. CURRENT SCHEME

Costs disclosure

12.6 Part 11 of the Act set out the scheme for legal costs. Section 175 requires practitioners to make comprehensive disclosures to clients concerning the amount of costs, or their basis of calculation and the client's right to review and to a bill of costs.[4] A barrister or solicitor who is engaged by another barrister or solicitor must make disclosures to their instructing barrister or solicitor. If the amount of costs is not known, an estimate must be made. Disclosure must be made before the barrister or solicitor is retained and must be in writing.

12.7 Section 180 provides for exceptions from disclosure in circumstances where it is not reasonable. Section 181 provides for the barrister's rules, solicitors rules or joint rules to be made, with the approval of the Attorney General, indicating when it would not be reasonable to require a disclosure to be made. Solicitor's rules have been made, using the power set out in section 181, to provide for exemptions from costs disclosure. The most significant exemption relates to matters which the practitioner believes will cost less that $750 for individuals and $1,000 for corporations, excluding disbursements.[5]

12.8 Section 174 gives clients rights to be given information as to how a barrister or solicitor will charge for legal services and an estimate of the likely cost of legal services.

12.9 The Act provides for costs agreements, including conditional costs agreements. A conditional costs agreement is an agreement under which the costs of a matter are only payable if the matter is successful. Section 187 provides for the payment of a premium under conditional costs agreements, of up to 25% of costs. However, costs cannot be recovered as a proportion of the amount recovered in the proceedings: section 188.[6]

Costs assessment

12.10 Division 6 of Part 11 establishes a scheme for the independent assessment of costs. Applications for assessment of costs are made to the Supreme Court under section 203. Applications may be made by clients, instructing practitioners, barristers or solicitors who have given bills of costs, or a person who is required to pay party/party costs, as a result of the order of a court or tribunal. Costs assessment can be used to resolve disputes about costs, or as a means of ensuring that only fair and reasonable costs are passed on to a third party.
12.11 Cost assessment is carried out by costs assessors under section 208A for solicitor/client matters and section 208F for party/party matters. There are some differences between the criteria to be adopted for solicitor/ client matters and party/ party assessments. For a solicitor/client bill of costs, the assessor is required to examine whether it was reasonable to carry out the work to which the costs relate; whether or not the work was carried out in a reasonable manner; and the fairness and reasonableness of the amount of costs in relation to that work.

12.12 Section 208B provides that in assessing what is a fair and reasonable amount of costs, a costs assessor may consider whether the solicitor or barrister has complied with relevant statutory requirements and rules; the disclosure made; relevant advertisements as to the costs or skills of the solicitor; any costs agreement; the skill, labour and responsibility displayed on the part of the barrister or solicitor; the instructions; the complexity, novelty or difficulty of the matter; the quality of the work; the place and circumstances under which legal services were provided; and the time within which the work was required to be done.

12.13 Costs assessors cannot examine bills given under a costs agreement, unless the costs agreement is unjust: section 208C and 208D.

12.14 In the case of party/party matters, costs assessors must consider whether it was reasonable to carry out the work done; and the fair and reasonable amount for the work concerned. Assessors may take into account matters such as the quality of the work, the skill, labour and responsibility of the practitioners, the complexity, novelty or difficulty of the matter and the place and circumstances in which the work was done: section 208G.

12.15 A costs agreement in a party/ party matter may be taken into account but must not be used for the purposes of determining fair and reasonable costs: section 208H.

Mediation

12.16 Section 198B provides the mediation of matters by the Legal services Commissioner where the amount in dispute is less than $2,500. This provision has been in force since 1 April 1997 and it is understood that the Supreme Court now refers all of these matters to the Legal Services Commissioner.

Appeals

12.17 A limited right of appeal from the decision of a costs assessor exists on questions of law, under section 208L. Costs assessors are not required by the Act to give reasons or to hold hearings and generally decide matters on the papers.

12.18 Recently the Supreme Court has held that costs assessors are bound to provide reasons because of an implied statutory obligation. An appeal has been lodged from the decision and is awaiting hearing.[7]

Costs fixed by Regulations

12.19 Sections 196 and 197 provide for regulations to be made for scales to continue to apply to some categories of fees, including workers compensation, civil debt recovery and enforcement of judgements by a judgement creditor, probate and administration of estates, and for costs passed on to third parties, such as costs for the preparation of a lease.

12.20 The Regulations provide that some of the scales which were set by the former legal Fees and Costs Board continue to apply to matters covered by section 196.

III. EVALUATION

Costs disclosure

12.21 As stated above, the reforms to costs and assessment of costs introduced in New South Wales were the first of their kind in Australia, and there is little empirical evidence about their efficacy. However, the reports of the Legal Services Commissioner provide anecdotal information about the experience of complainants with disclosure. The Legal Service Commissioner reports that failure to comply with disclosure laws is an element of approximately 10% of complaints. However, he expresses the view that this understates the problem of non-disclosure, because there is widespread ignorance of the laws and many practitioners do not appear to comply.[8]

12.22 Moreover, the Commissioner states that he is concerned that consumers still are not comparing the prices for legal services offered by different practitioners. If this is the case, it suggests that a competitive market for legal services has not developed, at least for the complainants to the Legal Services Commissioner. If the problem of information asymmetry has not been overcome by disclosure of costs, there may be market failure and fee deregulation may have had a limited impact on competition between providers.

12.23 Further, because many legal services are subject to contingencies, practitioners may be disclosing an hourly rate as a means of compliance with the provisions. However, such a disclosure will not necessarily assist the consumer in calculating the total costs in a matter.

Method of calculation of costs

12.24 The abolition of fee scales may have encouraged practitioners to adopt time costing as the principal means of estimating costs.[9] However, it is questionable that time costing facilitates efficiency. Rather, it may penalise competent practitioners and reward the inefficient. On the other hand, task based costing may not allow for the complexity of a matter and encourage overcharging for simple matters.

Obtaining information about costs

12.25 The Legal Services Commissioner is of the view that the lack of information available about costs may be addressed by gathering and publishing 'comparative information' about legal services to be obtained from practitioners and published, so as to enable consumers to make informed choices.[10] The publication of comparative fee information would enable both practitioners and consumers to have ready access to information. It would be likely to encourage competition among practitioners. The information could be task based or based on hourly rates. It is noted that the Law Society has indicated an intention to collect this information and publish it for the benefit of both consumers and practitioners. [11]

12.26 There are several threshold issues to be addressed if comparative fee information is to be collected and published. They include identification of the agency responsible for collecting information; whether the information published should simply consist of the fees being charged by practitioners or whether the material would be independently scrutinised to ensure that the fees concerned were reasonable; how a 'reasonable' fee could be calculated, having regard to the place where the service was provided, the quality of the service, salaries, overheads, profit margins and efficiency; and the use of the information.

12.27 It is noted that comparative information could become little more than a scale if it were universally used by practitioners to set fees, and could have an anti-competitive effect. The publication of comparative tables of costs would not overcome the difficulties faced by consumers seeking high quality services, who may have limited knowledge of the nature of the legal services they require and cannot make qualitative comparisons. In addition, it is not clear whether the profession would agree to the provision of information about their pricing practices. Unless compliance was mandatory, there would be no means of ensuring that the information provided was accurate.


Conditional uplift fee

12.28 There are a number of problems which may arise from the use of conditional fee arrangements. Such agreements create a conflict of interest between the financial interests of a lawyer in the outcome of litigation and their duties to the court. They may result in increasing costs if practitioners apply conditional uplift fees in matters where success is almost assured.

12.29 The Victorian provisions prevent a legal firm or practitioner from entering into a conditional costs agreement unless the practitioner or partner has a reasonable belief that the matter will be successful.[12] This restriction counters some of the concerns caused by potential conflicts between the lawyers financial interest in winning the case and their duties to the court. However, the Victorian provisions do not address the problem of a practitioner claiming a contingency fee in a matter in which success is almost assured.

12.30 One way of preventing practitioners applying conditional uplift fees for inappropriate cases may be to restrict the use of conditional fee agreements to certain types of cases. Other jurisdictions have considered allowing conditional fee arrangements for only certain kinds of matters. The Australian Law Reform Commission considered introducing contingency fees for representative actions as a means of alleviating the costs disincentive to a person contemplating being the principle. The ALRC recommended that such arrangements should only be permitted if first approved fair and reasonable by the court.[13]

12.31 However, it may be difficult to restrict the use of conditional fee agreements to certain kinds of matters. Other means of addressing inappropriate charging of conditional uplift fees include requiring enhanced disclosure to be made as to the prospects of success in the matter in cases where such fees are to be charged, education of consumers about the purpose of such fees, and encouragement to compare prices, based on the likelihood of success of a matter.

12.32 The Access to Justice 'Action Plan' recommended that the introduction of contingency fee agreements should be subject to the following safeguards: that the lawyer must be satisfied that the claim has some prospect of success, but that the risk of failure warrants the percentage uplift fee; that the arrangement must be in writing and must disclose the lawyers usual fees and reasons why the uplift is warranted and must specify what outcome constitutes 'success'; that the agreement should provide a cooling-off period of five days; that the lawyer should provide the client with written advice about the clients' right to independent legal advice; and that the lawyer should inform the client about the existence of the cooling-off clause and about their right to apply to a court to set aside the agreement if the terms are unreasonable.[14]

12.33 South Australia has introduced some of these restrictions. The client must be informed of their right to obtain independent advice and of their right to have the agreement reviewed by the Supreme Court or the Complaints Committee. The agreement is required to be in plain English, be signed by the parties and provide for a five day cooling-off period.[15]

12.34 It is noted that in New South Wales that although the Act is silent on this point, a conditional uplift was only intended to form a part of solicitor/client costs.[16] The uplift is therefore effectively deducted from any award or settlement received by clients.

Revision of a disclosure or an estimate

12.35 Section 178 requires a disclosure to be made before the solicitor or barrister is retained, subject to certain exceptions. Subsections 177(4) and 178(4) require a disclosure to be made as to any significant increase in the estimated costs of legal services as soon as practicable after the practitioner becomes aware of the likely increase in costs. The Act appears to permit a practitioner to change his or her fee estimate at any time during the matter, even in circumstances where the client would be disadvantaged by the need to engage a different practitioner, such as immediately before a trial date.

12.36 Of course, a practitioner may need to adjust their estimate or rate of charging fees if circumstances change, especially in long running matters. Further, if a fee agreement is involved, the arrangement can later be set aside as unjust by an assessor. However, there may be a need for consideration to be given to restricting the ability of practitioners to notify clients of changes to their original estimate or hourly rate, in circumstances where the client would be unfairly prejudiced if he or she was to instruct a new practitioner in the matter.

QUESTIONS

A. Has the system for costs disclosure fostered the development of a market for legal services? Do consumers have sufficient information to shop around for legal services? Are consumers in a position to judge the quality of a practitioners?

B. Has the removal of scales for most categories of legal work enhanced competition within the legal profession?

C. Why is the rate of compliance with costs disclosure low?

D. What additional information could be provided to consumers to assist them in choosing appropriate legal services?

E. How could comparative price information be obtained?

F. What is the role of specialist accreditation scheme in overcoming market failure?

G. Should any restrictions be placed on the use of conditional fees involving an uplift?

H. Should any restrictions be placed on the ability of a practitioner to revise their original estimate of the total fee in a matter, or their method of charging?

Costs assessment

12.37 The purpose of cost assessment was to ensure that clients of solicitors and persons liable to pay party/party costs had access to a speedy, straightforward mechanism for costs determination. Assessments are conducted by experienced practitioners and are processed promptly. However, parties do not receive reasons or any documentation which suggests the basis of decisions.

12.38 Assessors assess costs based on what is fair and reasonable. However, while the Act gives guidance to assessors about the matters to be taken into account, it does not provide for assessors to use comparative information to determine what is fair and reasonable.

12.39 The Access to Justice 'Action Plan' commended the New South Wales model for assessment of costs introduced by the 1993 reforms, but raised concerns about the broad discretion of costs assessors in assessing 'reasonableness' of costs and the difficulty of assessing whether charges are in accordance with market rates without reference to objective market surveys.[17] It recommended that "the criteria for assessment should specifically include reasonable market rates for the work performed, provision should be made for market surveys to be carried out in accordance with approved guidelines and costs assessors should not necessarily be limited to practising lawyers".[18]

Access to costs assessment

12.40 The Act provides for an application to be made for costs assessment by a client who has been given a bill of costs, a barrister or solicitor who is given a bill of costs by another practitioner who has been instructed in a matter, a barrister or solicitor who has given a bill or person who must pay an unspecified amount of costs as a result of a court order.
12.41 However, the right to seek assessment does not extend to third parties who have agreed to pay costs as part of contractual arrangements, such as mortgagors and lessees, or beneficiaries of estates where a solicitor or barrister is instructed by an executor but the costs are deducted from the assets available for distribution. Further, a practitioner who receives a bill of costs from another practitioner has only 30 days to make an application for assessment. It may be argued that the limitations on the right to seek costs assessment deprive the person who is liable to pay the bill of a right to review which should be available to them.

Comparative cost information

12.42 The publication of comparative fee information as an aid to consumers and the profession in the context of costs disclosure was discussed above. Comparative fee information could also be of assistance to assessors, to the profession and to clients. It could make the outcome of assessment more predictable and increase the accountability of assessors. However the matters needing to be addressed mentioned above, apply also to the use of comparative fee information in the costs assessment process.

Third party matters

12.43 Market failure may also arise if the costs disclosed are normally paid by a third party. The effect of the costs indemnity rule is that in areas where plaintiffs generally are successful, such as matters arising under the Motor Accidents Act 1988, defendants pay the fees of plaintiffs, even though they are not a party to the disclosure by a solicitor. The fees of plaintiffs vary widely, based on the size and location of the firm, whether Counsel has been briefed and the experience and expertise of the practitioner.

12.44 Insurers claim that legal costs have risen significantly since the abolition of scales, and that these increases can be attributed to the lack of incentive of plaintiffs to instruct lawyers to contain costs. These conditions are likely to engender market failure because the contracting parties have no incentive to contain costs. Similar considerations apply to mortgagees and lessees, who generally pay the legal costs of mortgagors and lessors respectively.

12.45 The Legislative Council Standing Committee on Law and Justice is conducting an inquiry into the Motor Accidents scheme, established under the Motor Accidents Act 1988. The Committee has commissioned research into costs practices to be conducted by the Justice Research Centre, with the co-operation of the profession. While some work has been done on costs by the Insurance Council of Australia, this research will provide the first comprehensive empirical evidence on costs movements in third party matters since the commencement of the 1993 reforms.

12.46 In a seminar held in May 1997, the Committee heard the views of participants and observers of the scheme on legal costs, and the effect of the introduction of competition policy on third party costs. While the views expressed by participants were based on anecdotal experience, representatives of the legal profession, costs consultants and insurers agreed that the levels of costs were of concern. The Committee has expressed concerns that legal fees charged and assessed appear to have risen since the abolition of scales in 1994.

12.47 It is noted that one reason for the apparent increase in party/party costs is likely to be that a greater proportion of costs are paid by insurers as party/party costs than in the past. One of the objects of the 1994 amendments was to ensure that a successful plaintiff recovered a greater proportion of his or her costs than had been the case on taxation, and costs assessors are required to conduct assessments based on 'fair and reasonable' costs, rather than costs necessarily incurred, which was the standard formerly applied on taxation by officers of the Supreme Court.[19] Therefore, the costs assessment scheme supports the operation of the costs indemnity rule.

12.48 One means of addressing the problems of third party costs would be to require disclosure to third parties, such as insurers or mortgagors. However, a similar proposal, for the mutual exchange of costs information, was rejected by the Australian Law reform Commission, in its broader examination of costs in litigation, because it would enable the more powerful party to intimidate the weaker party and could interfere with the lawyer client relationship. Such a scheme could have the result of requiring plaintiffs to choose from a panel of lawyers, chosen by insurers on the basis of costs rather than skills.

A return to scales for third party matters?

12.49 An obvious means of controlling costs which are passed on to third parties would be the reintroduction of scales for those matters. However, it should be noted that the disadvantages of scales which were identified by the Trade Practices Commission may render any public benefit achieved by scales illusory. The matters identified by the Trade Practices Commission were:

Fee scales can reduce or eliminate price competition between providers of legal services;
Fee scales reduce the incentive to economise on costs, and to adopt innovations in management, business structure and services delivery. Scales may actually reward inefficiency and discourage passing on to consumers the benefits of new technology or practice management;

Fee scales were not operating effectively because most consumers were unaware of fee scales, they provided insufficient information to assess reasonable fees for diverse legal services and the methodology used to determine fee scales is unlikely to produce guidance reflecting actual market conditions; and
Fee scales may limit the capacity of more efficient service providers and new entrants to the market to attract business by discounting and may discourage the supply of higher quality services at rates above the scale.

12.50 While the criticism of the methodology formerly used to set scales is noted, there appears to be no reason that scales could not be developed so as to reflect market conditions, provided that suitable benchmarks for market prices in third party matters can be identified. This issue requires further consideration when empirical evidence on the costs of legal services in third party matters is available.

12.51 A related issue is whether the retention of scales in those matters currently covered by the Regulations made pursuant to section 196 of the Act can be justified in the public interest. The matters covered by the regulation are generally matters where costs are passed on to third parties and may be regarded as justified in the public interest on this basis. This is an example of market failure and it appears that regulation of costs is warranted in these circumstances.

12.52 Section 111 of the Victorian Act provides for practitioner remuneration orders to be made by the Legal Costs Committee, providing for practitioners to charge scales, specified amounts, maximum amounts, or any other way or combination of ways. Section 111 provides for an order to be made setting a scale for legal services connected with procuring a mortgage or any other loan. However, the power is broad ranging and there is no requirement for a public interest test to be applied before a fee is set. The inclusion of a general power for fees to be set for certain categories of matters by an independent body may be warranted, although in order to prevent undue interference in the market for legal services, it would be appropriate for a public interest test to be applied to fixed costs. This would ensure that fixed costs applied only in circumstances of market failure.

Right of appeal

12.53 The only right of appeal from an assessment is on a question of law to the Supreme Court. The rationale for restricting rights of appeal was to ensure that the process was simple and inexpensive. However, there is a lack of caselaw on the meaning of the provisions governing assessment, which gives assessors and clients and practitioners little guidance. This issue would be addressed by the introduction of a right to seek leave to appeal or for assessors to state a case to the Court. However, the introduction of a right to seek a merit appeal is likely to increase the adversarial nature, complexity and cost of the assessment process.

Mediation

12.54 Since April 1997, disputes involving less than $2,500 have been referred for mediation by the Legal Services Commissioner. These amendments were made to address concerns that the assessment process was too formal for small disputes. The Legal Services Commissioner has indicated that mediation has been successful in these matters. There may be justification for extending the mediation scheme to larger matters. However, it is not clear what criteria are applied by mediators to mediation, and how these compare with the matters taken into account by assessors. Analysis of this issue is warranted, to ensure that consistent principles are applied in mediation and assessment, although it is suggested that analysis of the success of mediation as an alternative to assessment or the disciplinary system would be premature at this stage.

12.55 If the use of mediation in small matters is successful, then there appears to be no reason why larger matters could not also be referred to mediation. Mediation could have the advantage of encouraging the parties to confine the assessment to the matters in issue, prior to seeking adjudication. Mediation may also be a cheaper means of resolving costs disputes.

Broader issues: the costs indemnity rule and costs shifting

12.56 The costs indemnity rule has been cited as a possible cause of market failure. There may be scope for consideration of the costs allocation rules and whether competition in the legal services market would be enhanced if parties were required to pay their own costs. It is noted that the Australian Law Reform Commission rejected this option for civil and judicial review proceedings because the judicial system should reward a successful litigant.[20] Further, it is questionable whether rules which are designed to ensure that successful litigants are not penalised should be changed for a collateral purpose, to contain legal costs.

Legal Insurance

12.57 Another means of facilitating competition might be the wider use of legal insurance schemes. Such schemes have had little success in Australia although some trade unions now provide legal assistance. The scheme generally involves the payment of a premium for indemnity against costs incurred in civil and administrative law matters. Claimants may choose from a panel of lawyers and receive services approved by the insurers. Schemes often include unlimited telephone advice. However, family law and criminal matters are usually excluded. Further, the scheme may inhibit the choice of practitioners and insurers may seek to control the amount of services provided.

Alternative dispute resolution

12.58 It is possible that legal costs would be contained by the greater use of alternative dispute resolution in substantive matters instead of litigation. At present there appears to be no empirical information available about the relative costs of different procedures. However, a study of Victorian mediation processes is underway.[21]


QUESTIONS

A. Is the costs assessment scheme an effective means of reviewing the fees charged by legal practitioners? Could improvements be made to the scheme? Should there be any change to the provisions governing access to the scheme?

B. Is the standard applied by assessors to calculating costs appropriate? Should assessors have access to, and be guided by, benchmarks for fees in some, or all, categories of matters?

C. Is there any justification for the re-introduction of scale fees in any matters?

D. Should there be any change to the limited right of appeal from an assessment which currently applies?

E. Does the assessment scheme meet the needs of consumers and practitioners in small matters? Is the mediation of these matters preferable? Should the Act give some guidance to mediators in the mediation process?

F. What is the role of procedural reform in cost containment? Should the costs indemnity rule be revised? Would the use of alternative dispute resolution contain costs?

Footnotes

[2] Legal Practice Act 1996 (Vic) s 228

[3] Access to Justice Advisory Committee, Access to Justice: an Action Plan, Commonwealth of Australia, 1994, p. 175

[4] Practitioners are required to make costs disclosures in Victoria, South Australia, Western Australia and Tasmania. No costs disclosures are required in Queensland, Northern Territory or Australian Capital Territory. See Legal Practice Act 1996 (Vic), s 86, Rules of Practice (Tas), R.13 (?)

[5] Rule 1.2 of the Solicitors Rules, gazetted on 12 December 1997.

[6] similar provisions exist in Victoria; Legal Practice Act 1996, s 98-99, South Australia; Legal Practitioners Act 1981, ss41-42

[7] Kennedy Miller Television Pty Ltd v SJ Lancken & Anor (1 August 1997, unreported, Sperling J)

[8] Office of the Legal Services Commissioner Annual Report, 37.

[9] Proceedings, at 25. (Paper presented by the Legal Services Commissioner)

[10] OLSC Annual Report, 47-49.

[11] Law Society of New South Wales, Annual Report for 1997, (Sydney, 1997) ix.

[12] Section 97(5).

[13] Australian Law Reform Commission, Grouped Proceedings in the Federal Court, 1988, paragraphs 273-300. Cited in Access to Justice, an Action Plan, p. 181

[14] ibid. pp. 191-193

[15] Legal Practitioner's Act 1981, ss 41-42; Law Society of South Australia, Professional Conduct Rules, rule 8.10 [from ATJ - p.180]

[16] Statement of the Hon JP Hannaford MLC, Proceedings of the Seminar on the Motor Accidents Scheme - Legal Costs, Parliament of new South Wales Standing Committee on Law and Justice (Sydney 1997),

[17] Access to Justice Advisory Committee, Access to Justice: an Action Plan, Commonwealth of Australia, 1994, pp. 173-175

[18] Access to Justice Advisory Committee, Access to Justice: an Action Plan, Commonwealth of Australia, 1994, p. 176

[19] Proceedings, see n 7 above, paper delivered by David Bowen of NSW Attorney General's Department, 48.

[20] ALRC, Costs Shifting - Who Pays for litigation? Report No 75 (Canberra, 1995), 6.

[21] Proceedings, 111 (Professor Ted Wright, Justice Research Centre).