Legal Practitioners Act 1893

Legal Practitioners (Supreme Court) (Contentious Business) Determination 1996

 

Legal Practitioners (Supreme Court) (Contentious Business) Determination 1996

Contents

Part 1 — Preliminary

1.Citation2

2.Commencement2

3.Application2

4.Notice under section 58Y of the Act2

Part 2 — Investigations carried out by the Committee

5.3

Part 3 — Amendment to basis for fixing costs

6.4

Part 4 — O.66, R.12 Rules of the Supreme Court

7.Order under O.66, R.12 of the Rules of the Supreme Court6

Part 5 — Miscellaneous

8.Fixed amounts in certain items in Schedule9

Part 6

9.10

Schedule

Notes

Compilation table16

 

Legal Practitioners Act 1893

Legal Practitioners (Supreme Court) (Contentious Business) Determination 1996

Made by the Legal Costs Committee under section 58W of the Act.

Part 1 — Preliminary

1.Citation

This determination may be cited as the Legal Practitioners (Supreme Court) (Contentious Business) Determination 1996.

2.Commencement

This determination comes into operation on 1 February 1997.

3.Application

(1)Subject to subclause (2) this determination applies to —

(a)contentious business in the Supreme Court of Western Australia (“Supreme Court”); and

(b)pursuant to sections 64(1), 66 and 67(2) of the District Court of Western Australia Act 1969, to contentious business in the District Court.

(2)This determination does not apply to —

(a)the costs of appeals to the District Court of Western Australia (“District Court”) (which are covered by a separate determination); or

(b)costs incurred before 1 February 1997.

4.Notice under section 58Y of the Act

The Committee has complied with section 58Y of the Act.

Part 2 — Investigations carried out by the Committee

5.

(1)Before making this determination the Committee took the following steps —

(a)obtained information from the Supreme Court and District Court about the number of solicitors conducting Supreme Court and District Court litigation;

(b)reviewed all submissions received following notice given under section 58Y of the Act;

(c)conducted oral hearings with interested parties;

(d)prepared and circulated to relevant parties drafts of the scales with descriptive items covering the work performed by solicitors in the conduct of litigation in the Supreme Court and District Court;

(e)obtained information as a result of a survey of solicitors about the amount of time which had been spent and the charges which had been made for the last Supreme Court case conducted in the respondent’s office;

(f)conducted a survey of solicitors to ascertain hourly rates charged by them for work performed by senior practitioners, junior practitioners and paralegals and clerks, and

(g)conducted a survey of members of the Western Australian Bar Association (Inc) to ascertain the hourly and daily rates charged by members of that Association.

(2)The information obtained satisfied the Committee that the existence of competition for the supply of services to parties involved in litigation made it safe to adopt the rates charged by practitioners as a guide to the rates to be used in this determination.

Part 3 — Amendment to basis for fixing costs

6.

(1)The Committee has decided to alter the basis used for fixing the scale of costs.

(2)The underlying basis for the previous scales of costs was adopted in 1953 and was described inter alia by the Full Court of the Supreme Court of Western Australia in Cruickshank v Producers Markets Co‑operative Ltd [1960] WAR 184 —

“... the 1953 amendments to the costs rules ... have introduced a novel basis for the fixing of costs, as a result of which, broadly speaking, the remuneration allowable to the profession in litigious works is to be based not on work done but on the value of the subject‑matter of the lis ‑ a value to be fixed by the court where the claim is not for a liquidated sum. Formerly the costs recoverable in a civil action were fixed by the Taxing Master after a painstaking and sometimes protracted consideration of the many items contained in elaborate bills of costs culled from diary entries and cost sheets ... Under the new scale the costs allowable are by no means measured by the work actually done. ...The effect is that under the new scale the taxation of profit costs becomes a mere formality; the discretion of the Taxing Master is reduced to a minimum and the real discretion becomes that of the trial judge. His discretion is to fix the value of the subject‑matter of the litigation where the claim is other than a liquidated sum ...”.

(3)It is the view of the Committee that it is no longer possible to support a scale based on an ad valorem charge for the main item of getting up case for trial. The scale of litigation and the way it is conducted has changed immeasurably since 1953. A survey of costs charged, time spent, and the amount in issue shows that the scale does not reflect the basis on which many solicitors actually charge for the provision of legal services. This has the consequence that solicitors may enter into agreements under section 59 of the Act in order to avoid the constraints of the scale. On the other hand, the Committee considers that there should not be a return to a scale which produces a bill containing numerous small items.

(4)The new scale of costs set out in the Schedule reflects the fact that the costs of legal services provided in relation to Supreme Court and District Court actions are in the main calculated by reference to the time reasonably spent in the provision of those services and by applying to that time a reasonable hourly rate, that rate varying according to the seniority and experience of the practitioner and the complexity of the work.

Part 4 — O.66, R.12 Rules of the Supreme Court

7.Order under O.66, R.12 of the Rules of the Supreme Court

(1)Another matter also had to be addressed by the Committee. This relates to the circumstances in which a special costs order should be made under O.66, R.12 of the Rules of the Supreme Court. The Committee's determinations have never prevented the Court from making special costs orders and such orders are often made. However, the lack of information about how the maximum amounts in former determinations were calculated has made the task of the Court a difficult one. The result is that there is an uncertainty about the likely outcome in relation to special costs order applications.

(2)The new scale of costs shows the time and the fee earner whose hourly rates have been used to calculate the dollar amount in the scale. Set out in the table are the average maxima of hourly and daily rates revealed by the survey. Each item in the scale of costs specifies a dollar amount by reference to a fee earner.

Table

Fee Earner

Average Maximum Rates

Senior Practitioner (admitted for more than 5 years)

(SP)hourly rate

Junior Practitioner (admitted for less than 5 years)

(JP)hourly rate

Clerk/Paralegal(C/PL)hourly rate

Counsel Fees charged as a disbursement to practitioners or charged by in-house counsel:

Junior Counsel(JC)hourly rate

daily rate

Queen's Counsel(QC)hourly rate

daily rate

 

$270

 

$180

$130

 

 

$210

$2,300

$370

$3,500

The reference to Queen's Counsel in this determination (which includes the scale in the schedule) includes reference to Senior Counsel appointed in any State or Territory in Australia and whose appointment is afforded recognition by the Chief Justice of the Supreme Court.

(3)Thus, for example, item 6(a) of the Schedule which relates to the drawing and settling of a statement of claim, provides for a maximum of 10 hours for the preparation of this document to be performed by a senior practitioner charging at a rate of $270 per hour. In fact, in a particular matter, the time reasonably spent in drawing and settling a statement of claim may be only 2 hours and it may be performed by a practitioner who is relatively junior. By reason of the lack of complexity of the case, it may be that such practitioner should only reasonably charge at the rate of $180 per hour. If that be the case, then $360 would be a reasonable charge. Alternatively, if the statement of claim were drawn in complex litigation and 30 hours were reasonably spent on the task by a senior practitioner who might reasonably charge $280 per hour, then it would be appropriate for that party, if it were successful in the litigation to ask for a special costs order to be made by the Court to increase the maximum amount in item 6(a). This flexibility applies to each item in the scale other than the amounts set out in the items referred in Part 4.

(4)Thus, by way of further example, it can be seen that item 2 of the Schedule applies a maximum of $540. It has been calculated on the basis of a junior practitioner taking 3 hours to perform the work and charging at a rate of $180 per hour. However, if in a particular case a senior practitioner performed the work and took 2.45 hours at a reasonable hourly rate of $220 per hour, the result would still be within the maximum amount allowed by the scale. It would then be a matter for the Taxing Officer to decide whether the time spent in performance of the work was reasonably spent by a practitioner of that seniority.

(5)It will be noted from items 13 and 14 of the Schedule that if more than 100 hours must reasonably be spent on getting up the case for trial and if more than 3 days must reasonably be spent by counsel in mastering the brief and preparing for the trial, then the Committee considers that to be a basis to seek a special order for costs under O.66, R.12 of the Rules of the Supreme Court.

Part 5 — Miscellaneous

8.Fixed amounts in certain items in Schedule

Items 1(a) and (b), 3 and 28(a) and (b) of the Schedule are fixed maximum amounts to provide the Court staff with a fixed figure when completing the form of a writ of summons, a writ of execution or when entering judgment by default.

Part 6

9.

The above text and the Schedule hereto constitutes a determination made by the Legal Costs Committee under section 58W of the Act.

 

Schedule

Subject to the provisions of the Rules of the Supreme Court and to the provisions of the Legal Practitioners Act 1893 permitting a solicitor to make a written agreement as to costs with a client, the costs of or in relation to a party to an action or other proceeding inclusive of counsel fees but exclusive of other disbursements) —

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

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

shall not exceed the maximum amounts set out in the scale of costs in the Schedule.

SUPREME COURT SCALE OF COSTS

 

Item

 

 

Time

Fee Earner

 

$

1.

(a)Writ of summons, whether generally or specially indorsed, including instructions but excluding statement of claim.

(b)For each additional defendant

 

 

 

 

 

400

50

2.

Next friend or guardian ad litem

3 hours

JP

540

3.

Entry of judgment without trial

 

 

130

4.

(a)Payment into or out of Court

2 hours

JP

360

 

(b)Offer of compromise under 0.24A

2 hours

SP

540

 

(c)Acknowledgment of offer under 0.24A

 

 

30

 

(d)Acceptance of offer of compromise under O.24A

 

2 hours

 

SP

 

540

 

(e)Notice of offer to consent to judgment

2 hours

SP

540

 

(f)Other notices referred to or required by the Rules or procedures of the Court (including practice directions)

 

 

 

 

30

5.

Memorandum of Appearance

0.5 hours

C/PL

60

6.

Pleadings

 

 

 

 

(a)Statement of Claim

10 hours

SP

2,700

 

(b)Defence

10 hours

SP

2,700

 

(c)Counterclaim

10 hours

SP

2,700

 

(d)Reply (if necessary), defence to counterclaim, or any other pleading

 

10 hours

 

SP

 

2,700

7.

(a)Third party notice

2 hours

SP

540

 

(b)Pleadings in third party proceedings

6 hours

SP

1,620

8.

(a)Requesting particulars of a pleading (where and to the extent necessary)

(b)Giving particulars of a pleading

 

3 hours

5 hours

 

JP

JP

 

540

900

9.

(a)Notice requiring discovery

0.33 hours

C/PL

30

 

(b)Giving discovery of documents

10 hours

JP

1,800

 

(c)Inspection and giving inspection-per hour

 

JP

160

10.

(a)Delivery of interrogatories

5 hours

SP

1,350

 

(b)Answers to interrogatories

10 hours

JP

1,800

11.

Examination of witness before trial by counsel or solicitor, pursuant to order

 

 

An allowance in accordance with item 14(c) or (d)

12.

Application for and striking jury

1 hour

JP

180

13.

Getting up case for trial (subject to item 14(f) (includes work reasonably and necessarily undertaken prior to commencement of proceedings)

 

 

 

100 hours

 

 

 

SP

 

 

 

27,000

14.

Counsel fees:

 

 

 

 

(a)Fee on brief, i.e. first day of trial and preparation

3 days preparation; 1st day of trial

JC

9,200

 

(b)Fee on brief for Queen's Counsel, i.e. first day of trial and preparation (where two or more counsel are certified for)

3 days preparation; 1st day of trial

QC

14,000

 

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

 

JC

2,300

 

(d)Counsel fee for Queen's Counsel for second and each successive day of hearing (where two or more counsel are certified for)

 

QC

3,500

 

(e)Solicitor attending trial, per hour

 

SP

270

 

(f)Clerk attending trial, per hour

 

C/PL

130

 

(g)Attending on a reserved judgment or at a callover, per hour

 

SP

270

 

(h)Where the only issue tried is the assessment of damages, three quarters of the amounts prescribed by items 13, 14(a), 14(b), 14(c) and 14(d) shall be allowable, unless otherwise directed by the Court

 

 

 

15.

Settling and extracting judgment after trial:

 

 

 

 

(a)With appointment

2 hours

JP

360

 

(b)Without appointment

0.75 hours

C/PL

100

16.

Drawing bill of costs, copies and service

3 hours

C/PL

390

17.

Taking accounts; inquiries; taxation of costs; and other proceedings not covered by any other item, per hour

 

 

 

C/PL

 

 

130

18.

Re-trial or Re-hearing

(a)Getting up case for re-trial or re-hearing

(b)Re-trial or re-hearing

 

 

Such amounts

as are reasonable in the circumstances

19.

(a)Special case, case stated (otherwise than by way of appeal) or trial of an issue (not covered by item 14(h))

(b)For the second and each successive day of the trial or hearing

 

 

Such amounts

as are reasonable in the circumstances

20.

Appeals to a member of the Court or to the Full Court (including appeals by way of case stated):

(a)Notice of appeal, motion for order nisi to review, and the like

(b)Settling index

(c)Getting up appeal for hearing

(d)Counsel fee on hearing including preparation

 

 

 

 

15 hours

2 hours

10 hours

2 days preparation; 1 day hearing

 

 

 

 

SP

JP

SP

JC

 

 

 

 

4,050

360

2,700

6,900

 

(e)Counsel fee for Queen's Counsel including preparation (where two or more counsel are certified for)

2 days preparation; 1 day hearing

QC

10,500

 

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

 

JC

2,300

 

(g)Counsel fee for Queen's Counsel for second and each successive day of hearing (where two or more counsel are certified for)

 

 

 

 

QC

 

 

 

3,500

 

(h)Attending on reserved decision

2 hours

JC

360

 

(i)Settling and extracting order disposing of the appeal —

(i)with appointment

(ii)without appointment

 

 

2 hours

0.75 hours

 

 

JP

JP

 

 

360

135

21.

Originating motion or originating summons or petition

2 days preparation; 1 day hearing

JC

6,900

22.

Motions in Court not otherwise provided for

8 hours

JP

1,450

23.

Proceedings in Chambers other than proceedings to which item 21 applies

2 days preparation; 1 day hearing

JC

6,900

24.

Pretrial, mediation or other conferences—required by order of the Court, by the Rules of the Supreme Court or by Practice Direction—per hour

 

 

 

 

SP

 

 

 

270

25.

Arbitration proceedings

 

 

The same costs as in an action

26.

Proceedings, whether by action or otherwise, for the recovery of compensation for the taking or resumption of land or any other property by the Crown in right of the State or of the Commonwealth or by any other person, body or instrumentality pursuant to any statutory power

 

 

Such sum as is reasonable in the circumstances

27.

Proceedings by way of prerogative writ

 

 

Allowances calculated in accordance with item 20

28.

(a)Execution

 

 

200

 

(b)If against land, an additional

 

 

200

29.

Disbursements

 

 

 

 

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

 

 

 

 

(a)as between practitioner and client, a practitioner may charge and be allowed disbursements necessarily or reasonably incurred; and

 

 

 

 

(b)as between party and party, a party may be allowed disbursements necessarily or reasonably incurred.

 

 

 

[Schedule amended: Gazette 16 Dec 1997 p. 7334]

 

Notes

1This is a compilation of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 1996 and includes the amendments referred to in the following Table.

Compilation table

Citation

Gazettal

Commencement

Legal Practitioners (Supreme Court) (Contentious Business) Determination 1996

20 Dec 1996 p. 7081-7

1 Feb 1997 (see determination 2)

Legal Practitioners (Disbursements) Determination 1997 Pt. 5

16 Dec 1997 p. 7331‑4

16 Dec 1997