T&C draft

Terms of Agreement.

MyDefence offers a referral legal service acting for clients in criminal law matters. These Terms of Agreement comprise of the following:

  • Authority to Act;
  • Costs Disclosure Statement (Part A);
  • Costs Agreement (Part B); and
  • Use of the MyDefence website.

Authority to Act

By registering an account on the MyDefence website you hereby provide permission for MyDefence to refer you to a legal practitioner to act on your behalf in relation to your legal matter and to request documents from third parties as may be required.

You agree to pay professional costs plus disbursements of the referred legal practitioner pursuant to the below Costs Disclosure Statement (Part A) and Costs Agreement (Part B).

Costs Disclosure Statement (Part A)

Under Division 3 of Part 4.3 of the Legal Profession Uniform Law(Victoria) (“Uniform Law”), we must disclose to you the following information relating to legal costs.

1. The basis on which our charges will be calculated – section 174(1)(a)

Fixed Fee

Subject to you entering into a Costs Agreement with us, the referral lawyer’s charges are determined by Fixed fees depending on the number of charges in your police brief and if you have a prior criminal history or not.

If we incur other costs on your instructions and with your consent, your lawyer will charge $330.00 per hour including GST.

Disbursements

In providing referred legal services to you, it may also be necessary to incur other fees, expenses and charges including, Court filing and issue fees, Barristers’ fees, expert Doctors fees, freedom of information fees, bank charges, travel expenses, stamp duty, courier fees, long distance telephone charges, photocopying fees and company and other search fees.

These fees, expenses and other charges incurred on your behalf are referred to as disbursements. Your referral lawyer will charge you at cost for any disbursements we incur on your behalf. You must pay reasonable disbursements, including GST (Goods and Services Tax), incurred by us on your behalf on demand. The referral lawyer charge a sundries fee of $180 plus GST which is intended to cover sundry items such as postage, telephone, DX, insurance, archiving and stationery.

Your referral lawyer may also request that you provide them with payment in advance of incurring a disbursement on your behalf. These funds will be held in their trust account until payment of the disbursement is required.

If there are disbursements to be incurred that are unusual, they will seek your instructions before incurring the expense.

2. Estimated total legal costs – section 174(1)(a)

Your referral lawyer will endeavour to resolve your matter as cost effectively as possible. Please see an estimated plan of costs.

We estimate that total legal costs, including charges and disbursements will be $2,200.00 per court appearance. This per appearance fee is payable where your lawyer secures a full withdrawal of charges or you are found not-guilty at a contested hearing. The daily fee for attending a contested hearing is $3,300.00 per day which includes a barrister and instructing solicitor. We estimate that you can recover around 80% of your legal costs where you win at a contested hearing or police withdraw charges with costs.

Where you plead guilty to any charge, the police withdraw all charges without costs,  or we secure Diversion the below fixed fees apply and the lawyer is registered for GST.

Where you have no criminal priors and up to 5 criminal charges per police brief.

Our Professional Fees:                            $1000.00

Disbursements:                                        $       0.00

GST:                                                            $   100.00

TOTAL:                                                      $1100.00

Where you have criminal priors and up to 5 criminal charges per police brief.

Our Professional Fees:                            $1,300.00

Disbursements:                                        $    130.00

 GST:                                                           $  1430.00

TOTAL:                                                     $1,100.00

Where you have more than 5 criminal charges per police brief.

Our Professional Fees:                            $1,800.00

Disbursements:                                         $        0.00

 GST:                                                            $    180.00

TOTAL:                                                      $1,980.00

This estimate of total legal costs is NOT BINDING on your lawyer, as the work required may change, but is the best advice at this point in time. The estimate is based on the current understanding of the present circumstances of your matter. If the scope of this matter or your instructions change in a way that results in a significant change to anything we have previously disclosed, including this estimate, your lawyer will revise the estimate as soon as practicable. 

The major variables that might affect the calculation of these costs are:

  • the level of specialised knowledge and skill required;
  • the nature and complexity of your case;
  • the extent to which we engage others to be involved in the management of your case;
  • the impact of recent legal developments eg. Court decisions that may set a precedent for your case;
  • the number of documents we need to read, sort and analyse;
  • the time we spend in obtaining all relevant information and instructions and performing tasks on your behalf;
  • the seniority of the staff who perform the particular tasks;
  • whether your matter resolves early by way of police withdrawing charges or whether you contest charges at a contested hearing.

Recovery of costs from the police in criminal matters (Magistrates’ Court only)

If you are successful in defending your charges, the court is likely to award costs against the Police. In the event this occurs. you are likely to recover 90-100% of your legal costs, unless in any negotiation with prosecutors you agree not to claim costs.

3. Your rights – section 174(2)

  • You may seek independent legal advice before agreeing to the costs agreement proposed.
  • You may negotiate the terms of the costs agreement.
  • You may negotiate the billing method used (for example, by reference to timing or task).
  • You are entitled to receive a bill, and if you request it, fully itemised if requested within 30 days after the lump sum bill becomes payable. However, if you request an itemised bill and the total amount specified in the itemised bill exceeds the amount previously specified in the lump sum bill, then we may be able to recover the higher costs should the matter proceed to a costs assessment under section 198 or a binding determination under section 292 of the Uniform Law.
  • You are entitled, upon reasonable request, to progress reports of your matter and the current costs incurred in your matter, and to be notified of any significant changes affecting costs.
  • If there is a dispute or you are unhappy with the costs you can require mediation, apply for independent assessment before the Supreme Court Costs Court within 12 months after the bill was provided or request for payment was made or after the costs were paid, or seek to have the cost agreement set aside. You may also seek the assistance of the Victorian Legal Services Commissioner within 60 days after the legal costs have become payable, or where you have asked for an itemised bill, within 30 days after the itemised bill was provided. The time limits specified above may be waived if the complaint is made within 4 months after the required period in circumstances where the delay and reasons for the delay make it just and fair to do so, provided we have not commenced legal proceedings in respect of the legal costs. In the first instance we suggest that you raise any issues with us.
  • The law of Victoria applies to legal costs in relation to this matter.
  • You are entitled to accept or reject any offer we make for an interstate costs law to apply to your matter or notify us that you require an interstate costs law to apply to your matter.
  • The cost agreement you enter will show the basis on which the costs and disbursements will be calculated, estimate the total payable, or a range of estimates including major possible variables, when you should pay, the interest payable if you fail to pay, and the person you should speak to about any concerns you have on the costs.
  • The costs agreement will also estimate the range of costs and disbursements that you might recover from the other party if you are successful and the range of costs and disbursements of the other party you may have to pay if you are unsuccessful. An order by a court for payment of costs and disbursements will not necessarily cover the whole of your costs and disbursements.

4. Our accounts

  • Your lawyer will send you a bill at each stage in the matter and at the end of your matter.
  • We may ask you to pay an amount in advance to cover expenses or on account of your lawyer’s charges.
  • The bill is payable when you receive it.
  • If you do not pay our bill, we may be entitled to exercise a common law right known as a solicitor’s lien. The lien allows us to retain your documents until our bill is paid.

5. Interest on unpaid accounts – section 195(1)

If a bill remains unpaid 30 days after we gave it to you, your lawyer may charge you interest at a rate not exceeding the Cash Rate Target, as fixed by the Reserve Bank of Australia, plus 2 per cent, at the date the bill is issued.

6. Your right to request a written report on legal costs – section 190(1)

You have a right to request a written report of the legal costs incurred to date or since your last bill (if any) and your lawyer must provide such a report within a reasonable period and without charge.

7. If you have a concern about our legal costs – section 174(3)

If you have any concerns about the legal costs, please do not hesitate to contact us at mydefence.com.au/contact. This is because it is important to us that, in consenting to the proposed course of action for the conduct of your matter (in particular the proposed costs), you are informed and understand the issues involved.

8. Your documents

Your documents may be destroyed after seven years from the date of our final bill unless you write to us requesting retention for a longer period. At the end of the matter, and provided our invoices are paid in full, we will release your file and your documents as you direct.

9. Jurisdiction

The Uniform Law as applied in Victoria is applicable to legal costs in this matter.

10. Engagement of another lawyer or law practice – section 175

In providing referral legal services for you, it may be necessary to engage another law practice (including barristers) to provide specialist advice or services.

We will consult you about the terms of these engagements before incurring the expense. We will provide you with a statement setting out the rates and estimated costs of any other law practice we propose to engage as soon as the retained law practice provides this information to us.

We will likely engage a specialist barrister in the Contested Hearing stage of this estimate if you instruct us to contest any charges. The cost for a barrister is approximately $2,200.00 per day.

 

Costs Agreement (Part B)

Division 4 of Part 4.3 of the Uniform Law allows a law practice and you (the client) to agree on how the law practice’s charges are to be calculated and paid. It is called a “Costs Agreement” and it may be enforced in the same way as any other contract.

This document is an offer to enter into a Costs Agreement in accordance with the information contained in the Disclosure Statement given to you in compliance with Division 3 of Part 4.3 of the Uniform Law.

If you accept these terms, the Disclosure Statement and this Costs Agreement document will make up the complete Agreement for this matter.

To accept this offer to enter into Costs Agreement, you must sign and return a copy of this document to us. Various methods for signing this document are set out in the Acknowledgement at the end of this document.

1. The basis on which our charges will be calculated

Charges will be calculated in accordance with the method (i.e. combination of hourly rate and scale of fees where appropriate) detailed in the Disclosure Statement (Part A) that forms part of this Costs Agreement with you.

2. Your liability for our charges

An Interim Bills of Costs will be given to you at suitable breaks in the matter and a final Bill of Costs will be given to you at the conclusion of the matter. Our accounts are immediately due and payable.

If a bill remains unpaid 30 days after you receive it, we may charge you interest at a rate not exceeding the Cash Rate Target, as fixed by the Reserve Bank of Australia, plus 2 per cent, at the date the bill is issued.

If you do not pay our bill, we may be entitled to exercise a common law right known as a ‘solicitor’s lien’. The lien allows us to retain your documents until our bill is paid.

3. Your liability for disbursements

Your lawyer will charge you at cost for any disbursements we incur on your behalf. You must pay disbursements, including GST (Goods and Services Tax), incurred by us on your behalf either on demand or at the conclusion of this matter.

We may also request that you provide us with payment in advance of us incurring a disbursement on your behalf. These funds will be held in our trust account until payment of the disbursement is required.

4. Trust money

If your lawyer receives money into a trust account on your behalf, you authorise them to draw on that money to pay any amount due from you to us in accordance with the provisions of the Uniform Law and the Legal Profession Uniform General Rules 2015 relating to the withdrawal of trust money for legal costs. A trust statement will be forwarded to you upon completion of the matter.

5. Bills

Your lawyer may give bills to you in any way specified in Rule 73 of the Legal Profession Uniform General Rules 2015. For thepurposes of Rule 73, you consent to receiving bills:

  • by fax to the number specified by you;
  • by email address or mobile phone number to the address or number specified by you; or
  • by any other means of electronic transmission agreed to by you and us

6. Your obligations

We require you to, and you agree to:

  • provide full and honest instructions relevant to your matter and any material change in your circumstances that might impact on your matter while we continue to act for you;
  • co-operate in the matter and do all that we reasonably request of you in a timely manner;
  • accept and follow our reasonable legal advice; and
  • provide funds in advance in accordance with this Costs Agreement or some later arrangement.

If you fail to comply with any of these conditions, we have the option to terminate this Costs Agreement by advising you of termination in writing.

7. If we cease to act for you or you stop using this law practice

Circumstances may arise (such as a conflict of interest) that make it impossible for us to continue to act for you. We may also cease acting for you if you breach your obligations as set out in above.

We will notify you immediately if any of the above matters arise.

If we cease to act for you:

  • we will take steps to remove our name from the court record in any court proceedings;
  • you will receive a final account which will include all outstanding legal costs;
  • you must pay our legal costs up until the date we cease to act; and
  • we may retain your file and keep your documents until we are paid subject to any other statutory requirements.

If this law practice ceases to act for you during the course of this matter and before there is an outcome, then all legal costs incurred up to the date of the termination will be charged without any uplift fee being applied.

You may end our engagement by written notice at any time. If this occurs, then all legal costs incurred up to the date of the termination will be charged without any uplift fee being applied.Depending on circumstances, we may be entitled to exercise our right to a solicitor’s lien by retaining documents related to any matters we are conducting on your behalf.

8. Seeking independent legal advice

You are advised to seek independent legal advice prior to signing this Costs Agreement or otherwise agreeing to the terms of this Costs Agreement.

9. Acknowledgment

By registering an account on the MyDefence website, you ACKNOWLEDGE that you have:

  • read and understood the Disclosure Statement (Part A) pursuant to Division 3 of Part 4.3 of the Uniform Law; and
  • read, understood and approved this Agreement (Parts A & B); and
  • been advised of my right to get independent legal advice before entering into this Agreement; and
  • been advised that there is a “cooling off” period of not less than 5 clear business days, during which I have the right to terminate this Agreement by giving the law practice written notice of the termination after signing the Agreement; and
  • been advised that if you terminate this Agreement in writing within the 5-business-day “cooling off” period, the law practice may recover legal costs for legal services performed before the termination that were performed on your instructions before the termination and with your knowledge during that period; and
  • agreed that you may sign and return this Agreement in any of the following ways:
  • print and sign this Agreement and return it to the law practice by hand, post, electronically or other method;
  • reply electronically to the law practice stating that I agree to the terms and acknowledgements set out in the Agreement received and for the email which contains my printed name or signature to be my signature in the Agreement;
  • type my name into the Agreement and confirm by email to the law practice that it should stand as my signature in the Agreement; and
  • any other method in writing that would identify me as the client and my intention that I wish for my signature to be noted as being applied in the Agreement.

 

Use of the MyDefence website

  1. “MyDefence” means the operator of the MyDefence website.
  2. “Client” means customers of MyDefence.
  3. “Agreement” applies to these Terms of Agreement governing the relationship between MyDefence and the Client.
  4. MyDefence’s fees are priced in Australian Dollars and are subject to change at our discretion.
  5. The Client agrees to MyDefence referring their case to third party law firms.
  6. Where MyDefence refers a Client to a third party law firms, the third party law firm will agree to MyDefence’s fixed fee structure when providing the Client with legal services; or upon agreement between the Client and third party law firm to an alternative fee structure after the third party law firm’s assessment of the Client’s case.
  7. The Client warrants that in using MyDefence, data provided to MyDefence will not contain anything that is defamatory or offensive or that breaches copyright, trademark law or other intellectual property rights of any person, company or organisation.
  8. The Client of MyDefence takes responsibility in ensuring all details registered on their account are accurate.
  9. Save for any rights accrued under statute, MyDefence shall not be liable to any person (whether in contract, tort or otherwise) for any direct or consequential loss or damage suffered, or that may be suffered, as a result of any act or omission, whether negligent or otherwise, by or on behalf of MyDefence in relation to the provision, suspension or termination of MyDefence, or any other matter or thing relating to this Agreement.
  10. Save for any rights accrued under statute, the Client shall wholly indemnify MyDefence against any loss claim or damage whatsoever, whether direct or consequential which MyDefence may suffer or incur as a result of any action, proceeding, claim, demand or prosecution arising from this Agreement.
  11. All copyright in MyDefence’s images and trademarks vests with MyDefence. A person cannot reproduce or authorise the reproduction of MyDefence images without our prior written approval.
  12. The Client gives MyDefence an unrestricted license and the right to use any content uploaded or sent via MyDefence, subject to our Privacy Statement, for the purposes of improving the MyDefence service.
  13. The Client shall pay MyDefence fees specified on MyDefence prior to the Client’s next court appearance.
  14. The Client agrees that if they do not pay MyDefence fees prior to the Client’s next court appearance, MyDefence will inform the court that it will not be acting for the Client.
  15. All the rights, immunities and limitations of liability in this Agreement shall continue to have their full force and effect in all circumstances notwithstanding any breach of contract or of any conditions hereof by MyDefence.
  16. This Agreement constitutes the entire agreement between MyDefence and the Client.
  17. This Agreement is governed by and shall be construed in accordance with the laws of Victoria Australia. The Client agrees all disputes arising out of or in connection with this Agreement to the exclusive jurisdiction of the Courts of Victoria, Australia.
  18. If any provision is this Agreement is held to be unenforceable, all other provisions remain in force.
  19. The Client agrees that MyDefence reserves its rights and may in its sole and absolute discretion, refuse to accept the Client’s case for any reason.
  20. MyDefence may at any time, without cause, in our sole and absolute discretion, suspend either a Client’s use of MyDefence, or the MyDefence service in its entirety or terminate this Agreement and/or any approval granted to a Client to use MyDefence.
  21. Where the law precludes such exclusion and implies certain conditions and warranties into this Agreement, the liability of MyDefence for breach of such condition or warranty shall be limited, at the option of MyDefence, to supplying the service again at MyDefence’s expense limited to the cost of fees paid by the Client.