Legal Practice Act 2003

Legal Practitioners (Magistrates Court) (Civil Jurisdiction) Determination (Number 2) 2005

 

Legal Practitioners (Magistrates Court) (Civil Jurisdiction) Determination (Number 2) 2005

Contents

Part 1 — Preliminary

1.Citation2

Part 2 — Notice and Inquiries

2.Notice under section 213 of the Act3

3.Inquiries and submissions under section 213 of the Act3

Part 3 — Report of Committee’s Conclusions

4.Hourly rates and scale of costs established4

Schedule

1.Citation6

2.Commencement6

3.Application6

4.No minimum charge6

5.Fixed items7

6.Time estimates7

7.Settled proceedings7

8.Hourly rates7

9.Scale of costs8

Notes

Compilation table14

 

Legal Practice Act 2003

Legal Practitioners (Magistrates Court) (Civil Jurisdiction) Determination (Number 2) 2005

Part 1 — Preliminary

1.Citation

(1)This report may be cited as the Legal Practitioners (Magistrates Court) (Civil Jurisdiction) Report (Number 2) 2005.

(2)The determination set out in the Schedule to this report is referred to in this report as the Legal Practitioners (Magistrates Court) (Civil Jurisdiction) Determination (Number 2) 2005.

Part 2 — Notice and Inquiries

2.Notice under section 213 of the Act

The Legal Costs Committee has complied with the notice provisions of section 213 of the Act.

3.Inquiries and submissions under section 213 of the Act

Before making the Legal Practitioners (Magistrates Court) (Civil Jurisdiction) Determination (Number 2) 2005 the Legal Costs Committee —

(a)reviewed all submissions received as a result of the notice given under section 213 of the Act;

(b)consulted with the Court;

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

(d)reviewed the Legal Practitioners (Magistrates Court) (Civil Jurisdiction) Determination 2005 ; and

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

The Committee has also had the benefit of being able to consider the Magistrates Court (Civil Proceedings) Rules 2005 which were not available to the Committee at the time of making the Legal Practitioners (Magistrates Court) (Civil Jurisdiction) Determination 2005.

† [Published in Gazette 29 April 2005 pp.1967-1974].

Part 3 — Report of Committee’s Conclusions

4.Hourly rates and scale of costs established

(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 commencement 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 as a result of the inquiries and submissions described in clause 3, having assessed market conditions and having considered submissions, data provided by the Law Society of Western Australia, the incidental administrative implications of the calculation of the GST and the implications of the extension of the civil jurisdiction of the Magistrates Court which is approximately double that previously applicable to the Local Court, that the appropriate hourly and daily rates referred to in subclause 4 (1) are the rates set out in the Table to clause 8 of the Legal Practitioners (Magistrates Court) (Civil Jurisdiction) Determination (Number 2) 2005.

(3)Having regard to the information gained as a result of the inquiries and submissions described in clause 3 and as a consequence of the proclamation of the Magistrates Court Act 2004 and the Magistrates Court (Civil Proceedings) Act 2004, the Legal Costs Committee has concluded it is appropriate to —

(a)order the scale to reflect the procedures to be adopted by the Magistrates Court and the flow of litigation;

(b)not adopt a division of work between small claims and other claims up to the jurisdictional limit, and between routine and non-routine matters in relation to each class of claims, that had been introduced under the Legal Practitioners (Local Court) (Contentious Business) Determination 1997* in relation to the Local Court;

(c)maintain consistency where practicable with the format of the costs determination applicable to the Supreme Court of Western Australia; and

(d)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 also 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 practitioner to make a written agreement as to costs with a client under the Legal Practice Act 2003.

 

Schedule

Legal Practice Act 2003

Legal Practitioners (Magistrates Court) (Civil Jurisdiction) Determination (Number 2) 2005

Made by the Legal Costs Committee under section 210 of the Act.

1.Citation

This determination may be cited as the Legal Practitioners (Magistrates Court) (Civil Jurisdiction) Determination (Number 2) 2005.

2.Commencement

This Determination comes into operation on 1 July 2005.

3.Application

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

(2)This Determination does not apply to the remuneration of practitioners 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 the Scale 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 $2288 for the work involved. The figure of $2288 is a maximum, but on taxation less than $2288 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 the Scale 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, 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 the Scale 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 the Scale 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 practitioner 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

The hourly and daily rates set out in the Table to this clause are the maximum hourly and daily rates, inclusive of GST, which the Legal Costs Committee determines shall be used to calculate the dollar amounts in the scale of costs set out in the Table to clause 9. Except for certain items, each item in the Scale of Costs specifies a dollar amount with reference to the fee earner.

Table to Clause 8

Fee Earner

 

Maximum allowable hourly rates

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

hourly rate

$286

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

hourly rate

$198

Clerk/Paralegal(C/PL)

hourly rate

$88

Counsel fees charged as a disbursement
to practitioners or charged by in
‑house
Counsel:

 

Counsel(C)*

hourly rate

daily rate

$220

$1540

Senior Counsel(SC)†

hourly rate

daily rate

$363

$2541

a The 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 the Supreme Court of Western Australia.

9.Scale of costs

Unless a practitioner has made a written agreement as to costs with a client under the provisions of section 221 of the Legal Practice Act 2003, 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 practitioner,

shall not exceed the amounts set out in the Table to this clause.

Table to Clause 9

MAGISTRATES COURT CIVIL JURISDICTION SCALE OF COSTS 2005

Item

 

Time

Fee Earner

Maximum Amount
$

1.

Letter of demand issued prior to proceedings

 

 

55

2.

Claim

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

For each additional defendant

(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

 


286

33





2288

3.

Appointment of litigation guardian

2 hours

JP

396

4.

Response

(a)Lodging a response to a claim

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

(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






8 hours





SP






SP


143



2288






2288

5.

Third party claim, including instructions and list of documents

8 hours

SP

2288

6.

Disclosure

Giving additional disclosure where ordered by the Court

3 hours

JP

594

7.

Inspection

Inspection and giving inspection

per hour

JP

198

8.

Interrogatories

Answers to interrogatories including affidavit

5 hours

SP

1430

9.

Interpleaders

Interpleader proceedings—

(a)where uncontested

(b)where contested



1 hour



JP



198

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)

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


1 day preparation

½ day hearing





C





2310

11.

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

1 hour

SP

286

12.

Application for entry of judgment by default (without trial)

 

 

88

13.

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

(a)Offers of settlement

(b)Acceptance of offer of settlement




2 hours

2 hours




SP

SP




572

572

 

(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

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








per hour








SP





99



286

 

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

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



2 hours



3 hour



JP



SP



396



858

 

(g)Applications in court not otherwise provided for


1 hour


JP


198

14.

Getting up

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

30 hours

SP

8580

15.

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

 

 

An allowance in accordance with item 16(c) or (d)

16.

Trial

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


2 days preparation1st day of trial



C



4620

 

(b)Fee on brief for Senior Counsel ie first day of trial and preparation (where two or more Counsel are certified for)

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


2 days preparation1st day of trial




SC


C




7623


1540

 

(d)Counsel fee for Senior Counsel for second and each successive day of hearing (where two or more Counsel are certified for)

(e)Instructing practitioner attending trial, where certified for

(f)Clerk attending trial

(g)Where the only issue to be tried is the assessment of damages, two thirds of the amounts prescribed by Items 14 and 16(a), (b) (c) and (d) shall be allowable, unless otherwise directed by the Court







per hour

per hour




SC



JP

C/PL




2541



198

88

 

Note: In relation to paragraphs (a)—(g) 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 circumstances

 

 

 

 

(h)Attending on reserved judgment

per hour

SP

286

17.

Pretrial, mediation, conferrals, or other conferences

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

(b)Including informal conferences)
where reasonably held after
)
commencement of proceedings)
)

per hour

SP

286

18.

Judgments and orders

(a)Settling and extracting judgment or order

(i)with appointment

(ii)without appointment

(b)Issue of certified copy of judgment or order




1 hour



0.5 hours




JP



C/PL




198

143


88

19.

Enforcement

Lodgement of an application to enforce a judgment pursuant to Civil Judgements Enforcement Act 2004

 

 




143

20.

Proceedings in court pursuant to Civil Judgements 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

For each appearance by clerk










8 hours

3 hours










SP

C/PL










2288

264

21.

Registration of judgments

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

 

 




143

22.

 

Assessment of costs including drawing bill

(a)Lodgement of bill of costs)

(b)Drawing bill of costs, copies)
and service
)

(c)Making an objection to a bill)

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

 






SP



33


Such amounts as are reasonable in the circumstances

23.

Appeals

An appeal to a Magistrate from a decision of a Registrar

 

 

Allowances calculated in accordance with item 10

24.

Copying

Photocopies where necessary, including of documents for which allowance is otherwise made in this determination




per page

 




1.00

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

or

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






per hour




SC

SP

C

JP

C/PL




363

286

220

198

88

 

27.

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

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 Jurisdiction) Determination (Number 2) 2005. The following table contains information about that regulation.

Compilation table

Citation

Gazettal

Commencement

Legal Practitioners (Magistrates Court) (Civil Jurisdiction) Determination (Number 2) 2005

30 Jun 2005 p. 2985-93

1 Jul 2005 (see cl. 2)