77N—Investigation of allegation of overcharging
(1) Subject to
subsections (2) and (3) and section 77C, if a complaint of
overcharging is made against a legal practitioner or former legal
practitioner, the Commissioner must investigate the complaint unless the
complaint is received by the Commissioner more than 2 years after the
final bill to which the complaint relates was delivered to the client or the
complaint is resolved before the Commissioner commences an investigation.
(2) The Commissioner
may require a complainant to pay a reasonable fee, fixed by the Commissioner,
for investigation of the complaint and decline to proceed with the
investigation unless the fee is paid.
(3) The Commissioner
may not proceed with the investigation of a complaint of overcharging while
the bill to which the complaint relates is the subject of an application for
adjudication of costs before the Supreme Court under Schedule 3.
(4) For the purposes
of an investigation the Commissioner may do either or both of the following:
(i)
require the legal practitioner or former
legal practitioner to make a detailed report to the Commissioner, within the
time specified in the notice, on the work carried out for the client to whom
the bill was delivered; and
(ii)
require the legal practitioner or former
legal practitioner to produce to the Commissioner, within the time specified
in the notice, documents relating to the work;
(b)
arrange for the costs that are the subject of the complaint of overcharging to
be assessed by a legal practitioner who is, in the opinion of the
Commissioner, qualified to make such an assessment.
(4a) The
Commissioner—
(a) may
require a complainant to pay the reasonable costs of an assessment by a
legal practitioner arranged under subsection (4)(b); and
(b) may,
if the complaint is upheld, refund those costs to the complainant.
(5) A
legal practitioner or former legal practitioner must comply with a requirement
under subsection (4)(a).
Maximum penalty: $10 000 or imprisonment for 1 year.
(6) At the conclusion
of the investigation, the Commissioner—
(a) must
report to the complainant, the client to whom the bill was delivered (if that
client is not the complainant) and the legal practitioner or former
legal practitioner on the results of the investigation; and
(b) may
recommend that the legal practitioner or former legal practitioner reduce a
charge or refund an amount to the complainant or the client to whom the bill
was delivered.
(a) the
amount in dispute in a complaint of overcharging is no more than $50 000; and
(b) the
costs the subject of the complaint have been assessed by a legal practitioner
in accordance with subsection (4)(b); and
(c) the
Commissioner has, by written notice, given the complainant, the client to whom
the bill was delivered (if that client is not the complainant) and the
legal practitioner or former legal practitioner details of the assessment and
invited them to make written submissions within the period (which must be at
least 7 days) specified in the notice,
the Commissioner may, after the end of the specified period and after having
regard to any submissions received, make a determination as to whether or not
there has been overcharging and, if so, the amount that has been overcharged.
(8) If the
Commissioner makes a determination under subsection (7)—
(a) the
Commissioner must give the complainant, the client to whom the bill was
delivered (if that client is not the complainant) and the legal practitioner
or former legal practitioner a certificate certifying the determination; and
(b) the
determination is binding on, and enforceable by or against, the legal
practitioner or former legal practitioner in relation to whom the complaint
was made and the client to whom the bill was delivered.
(9)
Subsection (8)(b) does not apply if the Supreme Court has adjudicated and
settled the bill that is the subject of the complaint of overcharging.
(10) If a complaint of
overcharging made against a legal practitioner or former legal practitioner
results in a determination or finding that there has been overcharging or a
recommendation, order or agreement that the legal practitioner or former
legal practitioner reduce a charge or refund an amount to the
complainant—
(a) the
complainant is entitled to a refund of any fee paid to the Commissioner for
investigation of the complaint; and
(b) the
amount of the fee refunded to the complainant is recoverable from the
legal practitioner or former legal practitioner as a debt due to the
Commissioner; and
(c) the
costs of any assessment undertaken by a legal practitioner under
subsection (4)(b) for the purposes of investigating the complaint are
recoverable from the legal practitioner or former legal practitioner as a debt
due to the Commissioner.
(11) The provisions of
Schedule 4 apply to an investigation under this section.