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Federal Court: Revised Guide to Discretionary Items in Bills of Costs to take effect from 1 October 2014

The Federal Court Scale of Costs under Schedule 3 of the Federal Court Rules 2011 (Cth) (“FCR”) refers to several items in relation to which a Taxing Officer is required to exercise his or her discretion. These include claims made for preparation of Bill of Costs (scale item 2.5), perusal (scale item 3.1), collation (scale item 8.1), copies (scale item 9.1), witness expenses (scale item 17.1) and skill care and responsibility (scale item 11.1).

A further revised Guide to Discretionary Items in Bills of Costs has been circulated by the Court and will take effect from 1 October 2014. This provides information and guidelines to assist Taxing Officers in exercising their discretion when applying the Federal Court Scale of Costs. All legal practitioners should take note of this Guide when preparing Bills of Costs in order to avoid unnecessary Objections.

The Federal Court Deputy Registrar, John Mathieson, has confirmed that the Guide “does not limit the Taxing Officer’s discretion to allow higher or lower fees or disbursements”. Similarly, the guide is not to be regarded as limiting the Taxing Officer’s discretion as to the “methodology which can be applied to quantify those fees”.

Taxing Officers have a further wide discretionary power to not allow certain costs on taxation (FCR rule 40.30), to allow certain costs by having regard to the nature and importance of a proceeding and other relevant circumstances (FCR rule 40.31), and to make decisions using the “fair and reasonable” test in regard to party and party costs.

The Deputy Registrar has confirmed that the most recent Guide to Discretionary Items in Bills of Costs reminds Court users that in exercising the discretion mentioned in the above paragraph, “Taxing Officers are required to consider the cost effectiveness of the approaches adopted”. This is consistent with the overarching purpose of civil practice and procedure provisions.

All legal practitioners are reminded of the obligation placed on parties by sections 37M and 37N of the Federal Court of Australia Act 1976 (Cth) to act consistently with the overarching purpose of civil practice and procedure provisions, which is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.

A copy of the revised Guide to Discretionary Items in Bills of Costs is scheduled to be published on 30 September 2014 on the Federal Court’s website at http://www.fedcourt.gov.au/.

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