Legal Practice Act 2003

Legal Practitioners (Magistrates Court) (Civil) Determination 2012

 

Legal Practitioners (Magistrates Court) (Civil) Determination 2012

Contents

Part 1 — Preliminary

1.Citation1

Part 2 — Notice and Inquiries

2.Notice under section 278 of the Act2

3.Inquiries and submissions under section 277 of the Act2

Part 3 — Report of Committee’s Conclusions

4.Hourly rates and scale of costs continued3

Schedule

1.Citation5

2.Commencement5

3.Application5

4.No minimum charge5

5.Fixed items5

6.Time estimates6

7.Settled proceedings6

8.Hourly rates6

9.Trial Length7

10.Costs8

Notes

Compilation table15

 

Legal Practice Act 2003

Legal Practitioners (Magistrates Court) (Civil) Determination 2012

Part 1 — Preliminary

1.Citation

(1)This Report may be cited as the Legal Practitioners (Magistrates Court) (Civil) Report 2012.

(2)The Determination set out in the Schedule to this Report is referred to in this report as the Legal Practitioners (Magistrates Court) (Civil) Determination 2012.

Part 2 — Notice and Inquiries

2.Notice under section 278 of the Act

The Legal Costs Committee has complied with the notice provisions of section 278 of the Act.

3.Inquiries and submissions under section 277 of the Act

Before making the Legal Practitioners (Magistrates Court) (Civil) Determination 2012 the Legal Costs Committee—

(a)reviewed all submissions received as a result of the notice given under section 278 of the Act;

(b)consulted with the Magistrates Court and the Chief Magistrate;

(c)consulted with The Law Society of Western Australia Inc. and the Western Australian Bar Association Inc.;

(d)reviewed the Legal Practitioners (Magistrates Court) (Civil) Determination 2010[1];

(e)had regard to relevant provisions of the Magistrates Court Act 2004 and the Magistrates Court (Civil Proceedings) Act 2004; and

(f)conferred with other legal practitioners.

Part 3 — Report of Committee’s Conclusions

4.Hourly rates and scale of costs continued

(1)The information gained as a result of the inquiries and submissions described in clause 3 satisfied the Legal Costs Committee that having regard to the provisions of the Magistrates Court Act 2004 and the Magistrates Court (Civil Proceedings) Act 2004, it remains appropriate to determine hourly and daily rates and a scale of costs for legal work applicable to civil proceedings in the Magistrates Court.

(2)It is the recommendation of the Legal Costs Committee that —

(a)as a result of the inquiries and submissions described in clause 3;

(b)having considered the impact of relevant Australian Bureau of Statistics data;

(c)having considered submissions and data from The Law Society of Western Australia; and

(d)taking into account the incidental administrative implications of the calculation of the Goods and Services Tax,

the hourly and daily rates referred to in subclause 4 (1) be varied from the hourly and daily rates used in the Legal Practitioners (Magistrates Court) (Civil) Determination 2010 as the basis for the recommended scale of costs which have generally been rounded up or down to represent various increases of between 6.25% and 9.09% inclusive of the Goods and Services Tax and for administrative convenience, divisible by 11. Those rates are set out in Table A of the Legal Practitioners (Magistrates Court) (Civil) Determination 2012.

(3)Having regard to the information gained as a result of the inquiries and submissions described in clause 3 the Legal Costs Committee has concluded it remains appropriate to —

(a)order the scale to reflect the procedures utilised in the Magistrates Court and the flow of litigation;

(b)maintain consistency where practicable with the format of the Legal Practitioners (Supreme Court)(Contentious Business) Determination 2012; and

(c)provide for hourly and daily rates applicable to Counsel and Senior Counsel.

(4)The Legal Costs Committee intends, because the scale sets maximum hourly and daily rates and amounts and allowances that must not be exceeded, that the hourly and daily rates and scale of costs will apply in circumstances requiring the determination of allowable and other costs in the minor cases procedure of the Magistrates Court.

(5)The Legal Costs Committee intends that the Determination shall apply to all civil proceedings dealt with in the Magistrates Court, including civil jurisdiction conferred on the Court by a written law, such as but not limited to the Dividing Fences Act 1961 and the Restraining Orders Act 1997.

(6)The recommendations of the Legal Costs Committee are not intended to override the entitlement of a law practice to make a written agreement as to costs with a client under the Act.

 

Schedule

Legal Profession Act 2008

Legal Practitioners (Magistrates Court) (Civil) Determination 2012

1.Citation

This Determination may be cited as the Legal Practitioners (Magistrates Court) (Civil) Determination 2012.

2.Commencement

This Determination comes into operation on 1 November 2012.

3.Application

(1)This Determination applies to the remuneration of practitioners in respect of business carried out by law practices in or for the purposes of civil proceedings before the Magistrates Court.

(2)This Determination does not apply to the remuneration of law practices based on costs incurred in respect of business carried out before the commencement of this Determination.

(3)Nothing in this Determination applies to costs in proceedings transferred to the Magistrates Court pursuant to the Courts Legislation Amendment and Repeal Act 2004 insofar as those costs relate to work undertaken prior to the date of transfer.

4.No minimum charge

In no respect is this Determination to be seen as providing a minimum charge for any work other than the items referred to in clause 5. For example, item 2(b) provides for $2,992 for the work involved. The figure of $2,992 is a maximum, but on taxation less than $2,992 might be allowed. Where there is a set cost or time or level of fee earner indicated, the purpose is to indicate to the Assessing Officer what reasonably may be expected in most cases.

5.Fixed items

Some items in this Determination have been fixed without any indication of how these items have been calculated. These items are 1, 2(a), 4(a), 12, 13(c), 18(a)(ii), 19(a), 21 and 22(a). These have been fixed because, based on past practices, the Court staff require a fixed figure when completing the form of Entry of Judgment by Default and the like.

6.Time estimates

The reason for stating the number of hours estimated to be necessary to perform each of the items of work described in this Determination is to provide guidance to the Court when dealing with the question of costs so that the Court has some idea how much time is reasonably necessary to perform work in most cases. For example, in item 16(a), which relates to preparation for trial or getting up case for trial, the time indicated is that which can be expected in most cases. Some items reflect a number of hours that have been estimated so as to include work done with respect to the process of obtaining and considering evidence, interrogatories, documents, disclosures and the like, for example items 2(b), 4(b), 5, 10 and 20. The hours referred to in this Determination will guide the Assessing Officer about the amount which should be allowed in a particular case.

7.Settled proceedings

It is intended that item 14 should apply even if there is no trial. Thus, if the case is settled before trial and the law practice can demonstrate that preparation for trial was carried out, costs may be recovered for that work and allowed on an assessment of costs.

8.Hourly rates

(1)The hourly and daily rates set out in Table A are the maximum hourly and daily rates, inclusive of GST, which the Legal Costs Committee determines shall be used to calculate the dollar amounts set out in Table B. Except for certain items, each item in this Determination specifies a dollar amount with reference to the fee earner.

(2)The daily rates set out in Table A are intended to cover all work done on a hearing or trial day whether in or out of court including preparation of written submissions and are not intended to be supplemented in any way by additional hourly charges given that the maximum number of hours allowed for the daily rate is 10 hours per day.

9.Trial Length

The Legal Costs Committee has resolved that having regard to comments from the Chief Magistrate, it is appropriate to provide a proportionally greater allowance for a half day trial than a trial which lasts into a second half day, but not a second day. Items 16(a)—(d) (inclusive) in Table B reflect this change, with items 16(e) and (f) providing the allowance for additional days of trial.

Table A

Fee Earner

 

Maximum allowable rates

Senior Practitioner (admitted for 5 years or more)(SP)a

hourly rate

$374

Junior Practitioner (admitted for less than 5 years)(JP)a

hourly rate

$275

Clerk/Paralegal (CPL)

hourly rate

$132

Counsel fees charged as a disbursement to law practices or charged by in‑house Counsel —

Counsel (C)*

hourly rate
daily rate

$297
$2,970

Senior Counsel (SC)†

hourly rate
daily rate

$495
$4,950

aThe reference to Junior Practitioner or to Senior Practitioner in this Determination includes all legal practitioners even if the services were rendered in another State or Territory. Where a local practitioner has held an interstate practice certificate, the length of admission in that other jurisdiction is to be counted in assessing that practitioner’s years of admission for the purposes of this Determination.

*The reference to Counsel in this Determination means a practitioner acting as a barrister other than as Senior Counsel.

†The reference to Senior Counsel in this Determination includes reference to Queens Counsel or Senior Counsel appointed in Western Australia, or appointed in any State or Territory in Australia and whose appointment is afforded recognition by the Chief Justice of Western Australia.

10.Costs

Unless a law practice has made a written agreement as to costs with a client under the Act, the costs of or in relation to a party to an action or other proceeding (inclusive of GST and counsel fees but exclusive of other disbursements) —

(a)recoverable from one party by another party; or

(b)payable by a party to that party’s own law practice,

shall not exceed the amounts set out in Table B.

Table B

MAGISTRATES COURT CIVIL SCALE OF COSTS 2012

Item

 

Time

Fee Earner

Maximum Amount
$

1.

Letter of demand issued prior to proceedings

 

 


66

2.

Claim —

 

 

 

 

(a)Claim, including instructions, but excluding Statement of Claim

For each additional defendant

 

 



374
55

 

(b)Statement of Claim (including preparation and lodgement of a particulars of claim, where necessary or by order, and statutory declaration and list of documents)






8 hours






SP






2,992

3.

Appointment of litigation guardian

2 hours

JP

550

4.

Response —

 

 

 

 

(a)Lodgement of a response to a claim

 

 


187

 

(b)Statement of defence (including preparation and lodgement of a statutory declaration)




8 hours




SP




2,992

 

(c)Counterclaim, including instructions and statement of claim in the counterclaim, statutory declaration in support of counterclaim (where required), and all other documents necessary







8 hours







SP







2,992

5.

Third party claim, including instructions and list of documents


8 hours


SP


2,992

6.

Disclosure

 

 

 

 

Giving additional disclosure where ordered by the Court


3 hours


JP


825

7.

Inspection

 

 

 

 

Inspection and giving inspection whether by personal attendance or otherwise



per hour



JP



275

8.

Interrogatories —

 

 

 

 

(a)Delivery of interrogatories

5 hours

SP

1,870

 

(b)Answers to interrogatories including affidavit


5 hours


SP


1,870

9.

Interpleaders

 

 

 

 

Interpleader proceedings

 

 

 

 

(a)where uncontested

1 hour

JP

275

 

(b)where contested

 

 

An allowance in accordance with item 10

10.

Application to the Court

 

 

 

 

Proceedings and/or responses to applications (including all documentation and preparation for hearing)




1 day preparation

½ day hearing




C




4,455.00

 

Note: In relation to the above, if the proceedings do not commence and settle or adjourn on the day of the hearing then the Assessing Officer shall allow such amount as is reasonable in the circumstances

 

 

 

11.

Applications in court, including applications under Part 21 of the Magistrates Court (Civil Proceedings) Rules 2005, not otherwise provided for




1 hour




SP




374

12.

Application for entry of judgment by default (without trial)

 

 


132

13.

Offers of settlement, notices, practice directions, applications, declarations, memoranda, affidavits

 

 

 

 

(a)Offers of settlement

2 hours

SP

748

 

(b)Acceptance of offer of settlement


2 hours


SP


748

 

(c)Other notices and certificates referred to or required by the Act, Rules or procedures of the Court (including practice directions) not otherwise specified in this Scale

 

 






132

 

(d)Preparation, lodgement and service of affidavits and statutory declarations not otherwise provided for




per hour




SP




374

 

(e)Drawing and serving of interlocutory orders (where ordered or required)



2 hours



JP



550

 

(f)Preparation, lodgement and service of a listing conference memorandum



6 hours



SP



2,244

 

(g)Applications in court not otherwise provided for


1 hour


JP


275

14.

Preparation of case

 

 

 

 

Preparation for trial (includes work reasonably and necessarily undertaken prior to commencement of proceedings)



50 hours



SP



18,700

15.

Examination of witness before trial by a practitioner, pursuant to an order

 

 


An allowance in accordance with item 16(e) or (f)

16.

Trial —

 

 

 

 

(a)Fee on brief for Counsel ie half day trial and preparation


2 days preparation

½ day of trial


C


7,425

 

(b)Allowance for second half day of trial

 


C


1,485

 

(c)Fee on brief for Senior Counsel ie half day trial and preparation (where two or more Counsel are certified for)




2 days preparation

½ day of trial




SC




12,375

 

(d)Allowance for second half day of trial for Senior Counsel

 


SC


2,475

 

(e)Counsel fee for the second and each successive day of hearing

 


C


2,970

 

(f)Counsel fee for Senior Counsel for second and each successive day of hearing

 



SC



4,950

 

(g)Instructing practitioner attending trial


per hour


JP


275

 

(h)Clerk attending trial

per hour

CPL

132

 

Note: Subject to to paragraphs (a)-(h) if —

 

 

 

 

(1)The trial lasts less than 2 hours; or

 

 

 

 

(2)The trial does not commence and settles or adjourns on the day of the trial,

 

 

 

 

then the Assessing Officer shall allow such amount as is reasonable in the circumstance.

 

 

 

 

(i)Attending on reserved judgment (including preparation, consideration of reasons for decision and all necessary work and attendances to obtain final orders)







per hour







SP







374

17.

Pretrial, mediation, conferrals, or other conferences —

 

 

 

 

(a)where required by an Act, order of the Court, by the Rules or by practice direction;

 

 

 

 

(b)including informal conferences where reasonably held after commencement of proceedings; and




per hour




SP




374

 

(c)preparation reasonably undertaken for the conferences described in paragraph (b) of this item

 

 

 

18.

Judgments and order —

 

 

 

 

(a)Settling and extracting judgment or order —

 

 

 

 

(i)with appointment

1 hour

JP

275

 

(ii)without appointment

 

 

187

 

(b)Request for certified copy of judgment or order

 

 


132

19.

Enforcement —

 

 

 

 

(a)Execution

 

 

187

 

(b)If against land, an additional

3 hours

JP

825

20.

Proceedings in court pursuant to Civil Judgments Enforcement Act 2004 for the following —

 

 

 

 

(a)Means Inquiry

 

 

 

 

(b)Default Inquiry

 

 

 

 

(c)Suspension of enforcement order application

 

 

 

 

(d)Application to cancel or amend an order;

 

 

 

 

For each appearance by practitioner

8 hours

SP

2,992

 

For each appearance by clerk

3 hours

CPL

396

21.

Registration of judgements

 

 

 

 

Registration of judgments including those under Service and Execution of Process Act 1992 (Cwlth)

 

 



187

22.

Assessment of costs including drawing bill —

 

 

 

 

(a)Lodgement of bill of costs

 

 

55

 

(b)Drawing bill of costs, copies and service

 

 

Such amounts as are reasonable in the circumstances

 

(c)Making an objection to a bill

 

SP

 

(d)Assessment of costs (including the time spent in preparing for the assessment)

 

 

23.

Appeals

 

 

 

 

An appeal to a Magistrate from a decision of a Registrar

 

 

Allowances calculated in accordance with item 10

24.

Copies

 

 

 

 

Copies where necessary, including of documents for which allowance is otherwise made in this Determination



per page

 



0.165

25.

Accounts and inquiries

 

 

 

 

Attending on taking accounts, inquiries

 

SP

Such amounts as are reasonable in the circumstances

26.

Other work —

 

 

 

 

(a)Time reasonably spent by a legal practitioner on work requiring the skill of a legal practitioner (of the standing indicated) but not covered by any other item







per hour







SP/JP/SC/C/CPL

 

 

or

 

 

 

 

(b)Time reasonably spent by a legal practitioner, or by a clerk or paralegal of a legal practitioner, on work not covered by any other item or by paragraph (a)







per hour







SP/JP/SC/C/CPL

 

 

27.

Disbursements

 

In addition to the fees and charges allowed under this Determination —

 

(a)As between a law practice and client, a law practice may charge and be allowed disbursements necessarily or reasonably incurred; and

 

(b)As between party and party, a party may be allowed disbursements incurred by that party except insofar as they are of an unreasonable amount or have been unreasonably incurred, so that subject to the above exceptions, that party is fully reimbursed for its disbursements

28.

Allowances for witnesses

 

The amount of any costs to be paid in respect of work done by a practitioner in conducting any proceedings in a case may include a reasonable allowance for —

 

(a)witnesses called because of their professional, scientific or other special skill or knowledge; and

 

(b)witnesses called other than those covered in paragraph (a). In fixing an allowance for witnesses under paragraph (b), including the Claimant and Defendant, the Assessing Officer may have regard to the amount of salary, wages, or income (if any) actually lost by the witness.

 

 

 

Notes

1This is a compilation of the Legal Practitioners (Magistrates Court) (Civil) Determination 2012. The following table contains information about that determination.

Compilation table

Citation

Gazettal

Commencement

Legal Practitioners (Magistrates Court) (Civil) Determination 2012

29 Oct 2012 p. 5173-9

1 Nov 2012 (see cl. 2)

 

 

 


[1]

Published in Gazette 29 June 2010.