A costs order fixes liability. Taxation fixes the amount. Order 22 Divisions 3 and 4 of the National Court Rules 1983 govern it.
Rules 38 to 42
The Registrar shall be the taxing officer of the Court.
The taxing officer may — (a) dispense with the filing or service of notice of a motion to proceed with taxation; (b) require any party represented jointly with any other party … to be separately represented; (c) take evidence by the examination of witnesses or otherwise; (d) direct the production of any document; (e) adjourn any proceedings before him; and (f) do such other things as the Court may by order direct.
Rule 40 — the taxing officer may exercise the Court’s powers to extend times under Order 1 Rule 15 and to fix times under Order 1 Rule 16.
Rule 41 — where a party has had due notice of the time appointed, or notice has been dispensed with, the taxing officer may proceed in his absence.
Costs to be taxed under an order shall, unless the order otherwise provides, include the costs of the taxation; and costs to be taxed under these Rules shall include the costs of the taxation.
The taxing officer may make orders as to those costs and shall include in his certificate the amount of those costs and a statement of the persons to whom and by whom those costs are to be paid or the fund out of which those costs are to be paid.
Rules 45 to 48
An application may be made to the Registrar to have costs taxed where — costs are to be taxed and paid by or under these Rules; or by or under an order of the Court; or where the Court makes an order under Rule 44 (costs forming part of an account); or where costs are payable under any Act under which costs may be taxed in the Court without an order of or reference to the Court for taxation.
And by Rule 45(3), the Rule shall not prevent the parties to an action agreeing as to the amount of the costs to be paid.
(1) It shall be in writing and shall be filed.
(2) The bill to be taxed and a copy of it shall be annexed to the application.
(3) Where the Court has ordered taxation, that order or a copy of it shall also be annexed.
(4) A copy of the application shall be served by the party seeking the taxation on every other interested party.
An application under section 63 of the Lawyers Act 1986 is likewise made in writing and filed, with the bill and a copy annexed, and served by the person seeking the taxation on the lawyer who rendered the bill. The succeeding rules apply with necessary modifications.
Note that Rule 45(1) expressly excludes from that Rule the taxation of costs for any business done by a solicitor, being a taxation under Section 63 of the Lawyers Act 1986 — the two routes are separate. See solicitor and client costs.
(1) The Registrar shall fix a time and place for the taxation and give notice to the applicant, to the solicitor concerned, and to every other interested party.
(2) The bill shall be taxed and settled by the Registrar at the time and place fixed, subject to such adjournments as the Registrar considers necessary.
(3) Where either party does not appear, the Court may order the Registrar to proceed with the taxation.
Rules 51 to 55
Rule 51 — the taxing officer may arrange and direct what parties should attend and disallow the costs of attendance of any party whose attendance he considers unnecessary; but any party interested may attend any taxation.
Rule 52 — on an adjournment, the taxing officer may order any party attending before him to serve notice of the adjournment on any absent party.
Rule 53 — where costs are payable out of a fund, provision is made for notice to persons interested.
Rule 54 — reference to Court; Rule 55 — default of party entitled.
(1) Where a solicitor fails to file his bill for taxation within the time fixed or otherwise delays or impedes the taxation, the solicitor shall not, unless the taxing officer otherwise orders, be allowed the fees … for preparing his bill of costs and for attending the taxation.
(2) If, on the taxation, one-sixth or more of the amount of the bill … is taxed off, the solicitor shall not be allowed the fees … for preparing the bill and for attending the taxation.
The one-sixth rule is a strong discipline against overstating a bill. Note that sub-rule (2) contains no “unless the taxing officer otherwise orders” qualification.
Rule 58
Where a party entitled to be paid costs is also liable to pay costs, the taxing officer may (a) tax both and set off the amount allowed against the amount he is entitled to be paid, certifying the balance and the parties by and to whom the balance is payable; or (b) withhold his certificate … until that party has paid or tendered the amount he is liable to pay.
And costs may be set off notwithstanding that a solicitor for a party … has a lien for costs in the proceedings.
Rules 59 and 62
The taxing officer may make separate and interim certificates, and shall, after the conclusion of the taxation of any bill, make a final certificate of his disallowance of the costs in the bill or of the amount at which he allows the costs.
Critically, sub-rule (4): where the officer decides to allow or disallow an item, he shall not, except with the consent of the parties interested, make a certificate dealing finally with that item, until the expiry of 14 days after the date of the decision.
A certificate shall, unless made on a filed bill, be filed in the proceedings.
Sources
- National Court Rules 1983 — O 1 rr 15, 16; O 13; O 22 rr 9, 38–62
The Lawyers Act 1986, including section 63, is not available on PacLII.
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.