Legal representation

Unless the total legal costs in your matter are likely to be less than $750 (excluding GST and disbursements), your lawyer must give you a written costs disclosure document as soon as possible after you formally agree to hire them (preferably in writing).

The costs disclosure document must:

• disclose how they will charge you for your matter – this may be an agreed fee or a fee calculated on the basis of time spent (see ‘How solicitors charge’, below) – and provide you with an estimate of the total legal costs you will need to pay (including GST and disbursements);
• include information about your rights:
• to negotiate a costs agreement;
• to negotiate a billing method (e.g. by reference to time spent, or tasks completed, or to an agreed price based on value, or otherwise);
• to receive a bill and to request an itemised bill (see ‘How solicitors charge’); and
• to seek the assistance of the VLSB+C if you dispute the costs charged by your lawyer.

If there is any significant change to the information your lawyer has given you, they must update you in writing.

Before you finalise any legal matter, your lawyer must give you a reasonable estimate of the total legal costs you will have to pay. This should include any legal costs of another party, and/or any payments you should receive from another party. These costs may be paid as part of a court order or an agreement settling the dispute.

Consent and understanding

As well as giving you a written costs disclosure document, your lawyer must take all reasonable steps to ensure that you understand and consent to their proposed course of action for your matter, and to the estimated costs involved. You should have a clear written description of the work that they will be doing for you. If you still don’t understand what this means, you should ask your lawyer to explain it to you using plain language.

Lawyers must not charge more than fair and reasonable legal costs. The law sets out the factors that must be considered when determining whether costs are fair and reasonable; these include:

• the level of skill, experience, specialisation and seniority of the lawyer(s) who worked on the matter;
• the level of complexity, novelty and difficulty of the issues involved in the matter;
• the extent to which the case involved a matter of public interest;
• the labour and level of responsibility involved in the matter;
• the circumstances in acting on the matter, including (for example) any or all of the following:
  • the urgency of the matter,
  • the time spent on the matter,
  • the time and place where business was transacted in the matter,
  • the number and importance of any documents involved in the matter,
  • the quality of the completed work,
  • the retainer and the instructions (express or implied) given in the matter.

A solicitor’s bill is in two parts.

First, there is the fee for the solicitor’s professional services in performing the particular work. This fee is known as the solicitor’s professional costs.

Second, there are expenses called ‘disbursements’, which are costs the solicitor has paid to third parties on your behalf (e.g. the cost of obtaining a rates certificate or a barrister’s fees).

The professional costs charged by a solicitor can be calculated in different ways, including:

• item-by-item;
• fixed or agreed fees;
• time costing;
• conditional fees; or
• subscription fees.

Note that a solicitor may ask you to make a payment before they start working on your matter (see ‘Payment in advance’, below).

A solicitor must not accept money for the payment of their bill until the bill has been given to you and a certain period of time (which is set by the Legal Profession Uniform Law Application Act 2014 (Vic)) has passed.

Item-by-item

In this method of charging (also known as ‘charging on scale’), a fee is charged for each item of work performed (e.g. issuing a summons, preparing an affidavit, making a photocopy). These amounts are added together to make up the total amount charged.

This way of charging is common in court cases. The amount that can be charged for each item is set out in a court’s scale of costs, and varies according to which court your case is heard in.

Fixed or agreed fees

In the fixed or agreed fee method of charging, fees are based on the entire matter, or by particular stages or milestones of work performed (rather than each item of work carried out). For example, a fixed fee is charged for lodging divorce applications in the Federal Circuit and Family Court of Australia.

Fixed fees are becoming more common in cases involving litigation. Depending on the legal matter, fees may be fixed by the court or by government. Fees can also be fixed by agreement between the lawyer and client, with set amounts for each stage of the matter – this is sometimes called ‘agreed pricing’ or ‘value-based costing’.

Time costing

Lawyers can charge according to how much time they spend working on your matter. Where a lawyer agrees to charge an hourly rate, they must disclose what that rate is and how they will apply it. The amount charged can depend on the seniority and experience of the lawyer (e.g. a junior lawyer may charge less per hour than a principal lawyer).

An hourly rate is charged in ‘units’. Usually, each unit is six minutes. This means that a lawyer can charge for the full six minutes, even if the piece of work took three minutes. However, this is subject to the overall costs being fair and reasonable.

Conditional fees payment schemes (including no-win, no-fee)

In a conditional fees payment scheme (also known as a ‘conditional costs agreement’), you and your lawyer agree on the conditions under which you will pay your lawyer’s fees (e.g. you will pay them only if the action is successful).

A conditional costs agreement must be in writing and you must sign it for it to be accepted. The agreement must also inform you of your rights to seek independent legal advice before entering into a conditional costs agreement.

Conditional costs agreements vary between lawyers. For example, if you lose, you may pay nothing or you may have to only pay disbursements (e.g. the cost of medical reports or copying fees). However, you may have to pay the legal costs of the other party. Your lawyer must ensure you understand these variables.

Alternatively, if the case succeeds, the conditional costs agreement may allow the lawyer to charge you up to 25 per cent more than their normal fee. Be aware, this does not allow the lawyer to take any percentage of the money recovered in the case, only an extra percentage of the fees. 

Subscription fees

Some law firms offer subscription fees. These fees are a regular set payment, usually made monthly. Subscribers can use particular legal services within a defined scope or time limit. This kind of service is useful for people who need ongoing limited-scope legal advice (e.g. small business owners).

For more information about this kind of service, see the VLSB+C’s website.

Contingency fees and group costs orders

In any matter involving court proceedings, a lawyer cannot enter an agreement with you in which the lawyer is to be paid an agreed percentage of the total amount awarded to you. Such fee arrangements (known as ‘contingency fees’) are not lawful in Victoria, other than in the following circumstances.

From 1 July 2020, the Supreme Court has been able to make what are known as ‘group costs orders’ in class actions. These orders allow lawyers of plaintiffs to receive a percentage of any amount recovered in the proceedings as payment for legal costs, with all class members to share the liability for paying these costs. The percentage to be received by a plaintiff’s lawyer is set by the court and may be varied at any time during the proceedings.

Payment in advance

A solicitor may ask you to make a payment before providing legal services. Any advance payment you make must be paid into a trust account. Trust accounts are supervised by the VLSB+C; they are where lawyers keep money on behalf of their clients. Money in trust accounts can only be used in a way that the client has authorised or that is in accordance with the Legal Profession Uniform Law Application Act 2014 (Vic).

If you are successful in a matter that involves litigation in a court or tribunal, the court or tribunal may order the other party to pay some of your lawyer’s costs. How much these costs are depends on which court or tribunal makes the order.

In the Supreme Court, County Court and Magistrates’ Court, costs are usually calculated on a ‘standard’ basis. That is, only costs reasonably incurred and of a reasonable amount are allowed.

In the Victorian Civil and Administrative Tribunal (VCAT), parties are generally expected to pay their own legal costs, unless VCAT orders otherwise. VCAT may award costs if a party fails to comply with a direction issued by VCAT (e.g. a direction limiting the length of submissions) or acts in a way that unnecessarily disadvantages another party.

The bill you receive from your lawyer may be:

• a lump sum bill: this has one total amount of legal costs, which covers all the work to which the bill relates; or
• an itemised bill: this has a detailed list of the legal costs associated with every task to which the bill relates.

Where the costs are based on an agreed price, an itemised bill records in more detail the tasks the lawyer performed in the course of your matter.

The bill must include, or be accompanied by, a written statement setting out:

• the options available to you to dispute the legal costs in the bill; and
• any time limits that apply to those options.

You should be aware that:

• a lawyer who charges more than a fair and reasonable amount may be guilty of unsatisfactory professional conduct or professional misconduct;
• if you are given a lump sum bill, within 30 days, you can ask your lawyer to give you an itemised bill; your lawyer must give you an itemised bill within 21 days of your request;
• your lawyer cannot sue you to recover legal costs until at least 30 days after you have been given their bill;
• in certain circumstances, a lawyer can charge interest on an unpaid bill; however, the interest rate they can charge must be no more than the Reserve Bank cash rate (0.10 per cent at the time of writing (1 July 2022)), plus two per cent;
• if you have asked for an itemised bill within 30 days of receiving your lump sum bill, your lawyer cannot sue you to recover legal costs until at least 30 days after you have been given the itemised account; and
• your lawyer cannot sue you to recover legal costs if you have made a complaint to the VLSB+C and your dispute has not been resolved.