Legal Practitioners (Supreme Court) (Contentious Business) Determination 2004 00-a0-11 Xml

Western Australia

Legal Practitioners (Supreme Court) (Contentious Business) Determination 2004

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 the committee’s conclusions

4.Maximum hourly and daily rates changed – scale of costs amended4

Schedule

1.Citation6

2.Commencement6

3.Application6

4.Application of O.66, r11(3), r12, r13, r18, r19, r20(3), r21 and r23 of the Rules of the Supreme Court6

5.Maximum hourly and daily rates7

6.Costs8

Notes

Compilation table15

Western Australia

Legal Practice Act 2003

Legal Practitioners (Supreme Court) (Contentious Business) Determination 2004

Made by the Legal Costs Committee under section 214 of the Act.

Part 1 — Preliminary

1.Citation

(1)This report may be cited as the Legal Practitioners (Supreme Court) (Contentious Business) Report 2004.

(2)The determination set out in the Schedule to this report is referred to in this report as the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2004.

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 (Supreme Court) (Contentious Business) Determination 2004, the Legal Costs Committee—

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

(b)reviewed the operation of the time based system of calculating costs;

(c)reviewed the impact of movements in the Consumer Price and Wage Cost Indices for the financial year ending June 2002, and for the September 2003, December 2003 and March 2004 quarters;

(d)collated and reviewed the information gained from an electronic questionnaire distributed to legal practitioners in Western Australia; and

(e)distributed a questionnaire amongst a number of users of legal services and made that questionnaire available to the public electronically on the Committee’s website.

Part 3 — Report of the committee’s conclusions

4.Maximum hourly and daily rates changed – scale of costs amended

(1)The information gained as a result of the inquiries and submissions described in clause 3 satisfied the Legal Costs Committee that the manner in which legal services are provided made it appropriate to continue to adopt the hourly and daily rates charged by practitioners as the basis for the rates used in the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2004. There were no appropriate methodologies put to the Committee other than hourly and daily rates.

(2)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 Legal Practice Act 2003, the Legal Costs Committee determined it is appropriate to—

(a)reorder the scale to better reflect the flow of litigation; and

(b)amend terminology to reflect modern practice.

(3)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 the impact of relevant Australian Bureau of Statistics data, submissions from the legal profession, data provided by the Law Society of Western Australia, and the incidental administrative implications of the calculation of the Goods and Services Tax, that the hourly and daily rates referred to in subclause 4 (1) be varied from the hourly and daily rates used in the Legal Practitioners (Supreme Court) (Contentious Business) Determination 20021. Those rates are set out in the Table to clause 5 of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2004.

(4)It is the recommendation of the Legal Costs Committee as a result of the inquiries and submissions described in clause 3 that the scale of costs be varied in the manner set out in the Table to clause 6 of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2004.

(5)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.

1. [Published: Gazette 10 May 2002 p. 2448-54 ]

Schedule

Legal Practice Act 2003

Legal Practitioners Supreme Court (Contentious Business) Determination 2004

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

1.Citation

This determination may be cited as the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2004.

2.Commencement

This determination comes into operation on 1 July 2004.

3.Application

(1)This determination applies to the remuneration of practitioners in respect of contentious business carried out by practitioners in or for the purposes of proceedings before —

(a)the Supreme Court; and

(b)the District Court other than contentious business to which the Legal Practitioners (District Court Appeals) (Contentious Business) Determination 2002 or any successive determination of that scale applies.

(2)This determination does not apply to the remuneration of practitioners based on a written agreement as to costs under the Legal Practice Act 2003.

(3)This determination does not apply to the remuneration of practitioners based on costs incurred before 1 July 2004.

4.Application of O.66, r11(3), r12, r13, r18, r19, r20(3), r21 and r23 of the Rules of the Supreme Court

In the circumstances set out in Order 66, rules 11(3), 12, 13, 18, 19, 20(3), 21 and 23 of the Rules of the Supreme Court, the Committee determines that the Court or the Taxing Officer, as the case may be, has the power to make the orders and allowances referred to in those rules.

5.Maximum hourly and daily rates

(1)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 6. Each item in the scale of costs specifies a dollar amount with reference to the fee earner.

(2)The rates referred to in subclause (1) were ascertained in the manner set out in clause 4 of the Legal Practitioners (Supreme Court) (Contentious Business) Report 2004.

Table

Fee Earner	Maximum allowable hourly and daily rates
Senior Practitioner (admitted for more than 5 years)
(SP)a-hourly rate	$341
Junior Practitioner (admitted for less than 5 years)
(JP)a-hourly rate	$231
Clerk/Paralegal (C/PL)-hourly rate	$165
Counsel fees charged as a disbursement to practitioners or charged by in‑house counsel—
Counsel(C)*-hourly rate	$264
-daily rate	$2893
Senior Counsel(SC)†-hourly rate	$473
-daily rate	$4411

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 the Supreme Court of Western Australia.

6.Costs

(1)Subject to the provisions of subclause (2) and of the Legal Practice Act 2003 permitting a practitioner 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 GST and 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 practitioner,

shall not exceed the amounts set out in the Table to this clause (except as otherwise provided in item 32 of the Table).

(2)Allowances made under item 32 of the Table to this clause are only to be awarded as between practitioner and client, or if costs are awarded on an indemnity basis and not between party and party unless the Court otherwise orders.

Table

Supreme Court Scale of Costs

Item

Time

Fee Earner

Writ:

(a)Writ of summons, whether specially or generally endorsed, including instructions, but excluding Statement of Claim;

For each additional defendant

(b)Statement of Claim

1.5 hours

10 hours

511

3,410

Next friend or guardian ad litem

3 hours

693

Defence:

(a)Memorandum of appearance

(a)Defence

(b)Counterclaim

0.5 hours

10 hours

C/PL

3,410

Reply and other pleadings:

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

10 hours

3,410

(a)Third party notice

(b)Pleadings in third party proceedings

2 hours

6 hours

682

2,046

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

(b)Giving particulars of a pleading

3 hours

5 hours

693

1,155

Discovery:

(a)Notice requiring discovery

(b)Giving discovery of documents

0.33 hours

10 hours

C/PL

3,410

Inspection:

Inspection and giving inspection

per hour

341

Interrogatories:

(a)Delivery of interrogatories

(b)Answers to interrogatories

5 hours

10 hours

1,705

3,410

10.

Chambers:

(a)Proceedings in Chambers other than proceedings to which item 11 applies

(b)Attending on a reserved judgment in Chambers

2 days preparation;
1 day hearing

per hour

8,679

341

11.

Motions and originating process:

Originating motion, originating summons or originating application

2 days preparation;
1 day hearing

and

Getting up – 30 hours

18,909

12.

Motions in Court not otherwise provided for

1 day preparation
½ day hearing

4,339

13.

Callover:

Attending at a callover

per hour

341

14.

Entry of judgment without trial

165

15.

Offers of compromise, notices, practice directions, etc:

(a)Payment into or out of Court

(b)Offer of compromise under O.24A

(c)Acknowledgment of offer under O.24A

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

(e)Notice of offer to consent to judgment

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

2 hours

4 hours

2 hours

462

1,364

682

16.

Getting up:

Getting up case for trial (subject to item 19(g)) (includes work reasonably and necessarily undertaken prior to commencement of proceedings)

100 hours

34,100

17.

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

An allowance in accordance with item 19(c) or (d)

18.

Application for and striking jury

1 hour

231

19.

Trial:

Counsel fees

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

(b)Fee on brief for Senior Counsel, i.e. 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

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

(e)Solicitor attending trial

(f)Clerk attending trial

(g)Where the only issue tried is the assessment of damages, three quarters of the amounts prescribed by items 16, 19(a), (b) (c) and (d) shall be allowable, unless otherwise directed by the Court

(h)Attending on reserved judgment

3 days preparation;
1st day of trial

per hour

C/PL

11,572

17,644

2,893

4,411

341

165

341

20.

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 circum-stances

21.

(a)Special case, case stated (otherwise than by way of appeal) or trial of an issue (not covered by item 19(g))

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

Such amounts as are reasonable in the circum-stances

22.

Appeals (including appeals by way of case stated and applications for leave to appeal):

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

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

(b)Drawing and settling index

(c)Getting up appeal for hearing

(d)Counsel fee on hearing including preparation

(e)Counsel fee for Senior Counsel including preparation (where two or more counsel are certified for)

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

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

(h)Attending on reserved decision

15 hours

8 hours

10 hours

2 days preparation; 1 day hearing

per hour

5,115

1,848

3,410

8,679

13,233

2,893

4,411

341

23.

Pretrial, mediation, conferrals, or other conferences

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

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

per hour

341

24.

Orders:

Settling and extracting judgment or order

(a)With appointment

(b)Without appointment

2 hours

0.75 hours

462

173

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 amounts as are reasonable in the circum-stances

27.

Proceedings by way of prerogative writ

Allowances calculated in accordance with item 22

28.

(a)Execution

(b)If against land, an additional

252

29.

Taxing including drawing:

(a)Drawing bill of costs, copies and service; and

(b)Taxation of costs (including the time spent in preparing for the taxation)

Such amounts as are reasonable in the circum-stances

30.

Copying:

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

per page

1.00

31.

Accounts and inquiries:

Taking accounts; inquiries

Such amounts as are reasonable in the circum-stances

32.

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

(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

C/PL

473

341

264

231

165

33.

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.

Notes

1This is a compilation of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2004 and includes the amendments made by the other written laws referred to in the following table.

Compilation table

Citation	Gazettal	Commencement
Legal Practitioners (Supreme Court) (Contentious Business) Determination 2004	25 Jun 2004 p. 2315-23	1 Jul 2004 (see cl. 2)