Legal Profession Act 2008

Legal Profession (Family Court of Western Australia) Determination 2018

 

Legal Profession (Family Court of Western Australia) Determination 2018

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.Maximum hourly and daily rates changed4

Schedule

1.Citation5

2.Commencement5

3.Application5

4.No minimum charge5

5.Restricted Practitioner category5

6.Hourly rates5

7.Counsel fees7

8.Disbursements7

9.Travel7

10.Costs8

Notes

Compilation table9

 

Legal Profession Act 2008

Legal Profession (Family Court of Western Australia) Determination 2018

Part 1 — Preliminary

1.Citation

(a)This Report may be cited as the Legal Profession (Family Court of Western Australia) Report 2018.

(b)The Determination set out in the Schedule to this Report is referred to in this Report as the Legal Profession (Family Court of Western Australia) Determination 2018.

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

(a)Before making the Legal Profession (Family Court of Western Australia) Determination 2018 the Legal Costs Committee —

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

(2)consulted with the Family Court of Western Australia (Family Court);

(3)consulted with The Law Society of Western Australia (Inc) and the Family Law Practitioners’ Association of WA;

(4)considered the impact of changes in relevant Australian Bureau of Statistics data for the period; and

(5)had regard to relevant provisions of the Family Law Rules 2004.

(b)In the Legal Practitioners (Family Court of Western Australia) Report 2009[1] (2009 Report) the Legal Costs Committee noted that —

(1)the effect of changes brought about by the Family Law Amendment Rules 2008 to the Family Law Rules 2004 is that the Supreme Court of Western Australia is now responsible for the regulation of legal practitioner/client costs in the Family Court;

(2)as a consequence of the rule changes in the Family Court of Australia prior to the 2009 Report, the Family Court would no longer be setting a scale for legal practitioner/client costs;

(3)the general rule pursuant to section 117 of the Family Law Act 1975 (Commonwealth) is that each party to proceedings under that Act bears their own costs;

(4)most legal practitioners and their clients in the Family Court’s jurisdiction, enter into costs agreements;

(5)the Act contains substantial cost disclosure obligations; and

(6)party/party costs are provided for under the Family Court’s federal jurisdiction and therefore it is only legal practitioner/client costs that the Legal Costs Committee is concerned with.

The Legal Costs Committee considers the above matters continue to be relevant.

Part 3 — Report of Committee’s Conclusions

4.Maximum hourly and daily rates changed

The Legal Costs Committee has determined that as a consequence of the information gained from the inquiries, the submissions described in clause 3, and having regard to the provisions of the Family Law Rules 2004 —

(a)it is unnecessary as at the date of this Report to recommend the implementation of a scale of fees in the Family Court in respect of party/party costs; but

(b)it is appropriate to determine a scale of fees applicable to the work of legal practitioners, clerks and paralegals in, and in connection with the Family Court on a legal practitioner/client basis; and

(c)it is appropriate to continue to adopt the hourly and daily rates (inclusive of GST) set out in Table A of the Legal Profession (Supreme Court) (Contentious Business) Determination 2018 as the hourly and daily rates applicable to legal practitioners and clerks/paralegals in the Family Court of Western Australia jurisdiction as set out in Table A in the Legal Profession (Family Court of Western Australia) Determination 2018.

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

 

 

Schedule

Legal Profession Act 2008

Legal Profession (Family Court of Western Australia) Determination 2018

1.Citation

This Determination may be cited as the Legal Profession (Family Court of Western Australia) Determination 2018.

2.Commencement

This Determination comes into operation on 1 July 2018.

3.Application

This Determination applies to the remuneration of legal practitioners, clerks and paralegals in respect of advice given by legal practitioners in or for the purposes of proceedings or potential proceedings before the Family Court of Western Australia (Family Court).

4.No minimum charge

In no respect is this Determination to be seen as providing a minimum charge for any work.

5.Restricted Practitioner category

The amendments brought in by the Legal Profession (Family Court of Western Australia) Determination 2016 remain in effect. Clause 5(e) of that Determination ceases to have effect with the introduction of this Determination.

6.Hourly rates

(a)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 chargeable by a legal practitioner, clerk or paralegal in providing advice and services to their own clients in respect of proceedings and potential proceedings in the Family Court.

(b)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.

Table A

Fee Earner

Maximum allowable hourly and daily rates

Senior Practitioner (permitted to practise on his or her own account for 5 years or more) (SP)°

hourly rate

 


$495

Junior Practitioner (permitted to practise on his or her own account for less than 5 years) (JP)°

hourly rate

 


$352

Restricted Practitioner (RP) °, #

hourly rate

 

$297

Clerk/Paralegal (C/PL) ##

hourly rate

 

$231

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

 

Counsel (C)*

hourly rate

daily rate

 

$418

$4,180

Senior Counsel (SC)*

hourly rate

daily rate

 

$682

$6,820

°The reference to Restricted Practitioner, Junior Practitioner or 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 practising certificate, the length of unrestricted legal practice in that other jurisdiction is to be counted in assessing that practitioner’s years of practice for the purposes of this Determination.

#The reference to Restricted Practitioner in this Determination includes practitioners undertaking restricted legal practice for the purposes of obtaining the required experience set out in section 50 of the Act and does not include a reference to an Australian legal practitioner who has a condition placed on their practising certificate by the Legal Practice Board, State Administrative Tribunal or otherwise, requiring them to practise under supervision for disciplinary, medical or other reasons.

##The reference to Clerk/Paralegal in this Determination includes a law graduate prior to their admission to practise as an Australian lawyer.

*The reference to Counsel in this Determination means a practitioner acting as a barrister other than a Senior Counsel and includes a practitioner appearing in court who does not practise in accordance with Supreme Court Practice Direction 10.5.

**The reference to Senior Counsel in this Determination means a person within the meaning of item 11 or item 12 of Regulation 5(2) of the Legal Profession Regulations 2009 (WA).

7.Counsel fees

(a)All appearances in court are intended to be charged at the applicable counsel rate, and not at any higher rate that may be applicable to the actual practitioner by reason of the person undertaking the appearance otherwise being entitled to charge as a Senior Practitioner.

(b)Fees charged by practitioners who practice solely as barristers in accordance with Supreme Court Practice Direction 10.5 are only to be charged at the rates provided for counsel of their seniority in Table A and are not to be charged at rates applicable to a Senior Practitioner.

(c)The increase in Counsel rates, and no increase in Senior Counsel rates in Table A, is designed to narrow the gap between those levels of seniority of counsel and more accurately reflect the market for legal services.

(d)Recovery of daily fees for counsel on the taxation or assessment of a Bill of Costs is intended to apply only when a full day has been worked, either in Court or in Court and in preparation for a subsequent hearing day.

8.Disbursements

In addition to the fees and charges allowed under this Determination as between a law practice and client, a law practice may charge and be allowed disbursements necessarily or reasonably incurred.

9.Travel

(a)For the purposes of this Determination, minor travel means incidental travel associated with attendance at court for a hearing where that travel is of a minor duration. Examples of minor travel include, but are not limited to —

(1)a practitioner walking from their usual place of business to a court;

(2)a practitioner walking from a carpark to a court; or

(3)a practitioner walking or taking public transport from one centrally located court to another centrally located court.

(b)As between a law practice and its own client, time spent travelling by a law practice, other than minor travel, is to be charged at no more than one half of the rates set out in Table A, with a maximum of 8 hours in any one day.

(c)In making its decision in this Determination, the Committee has taken note of the Law Society of Western Australia’s Standard Costs Agreement, which contains a provision that a law practice will charge travel at 50% of the agreed hourly rates.

(d)The Legal Costs Committee has also considered an informal policy of the Legal Profession Complaints Committee that travel should not ordinarily be charged at a rate of more than 50% of a law practice’s normal hourly charge-out rate.

(e)Whilst the Legal Costs Committee recognises that during a travel period a law practice may not necessarily utilise legal skill and knowledge, there is a recognition of a loss of opportunity for the time spent travelling.

(f)The Legal Costs Committee notes that, having regard to the above

(1)it is the responsibility of a law practice to allocate the cost of time spent on travel fairly and reasonably where the travel is necessary to service more than one client on the day of travel; and

(2)whilst nothing contained in this Determination prevents a law practice from charging time spent on a client matter or client matters in the course of travel (air travel by way of example), the law practice is not entitled to charge a client or clients for both time spent on a client matter (regardless of whether that time relates to the client for whom the travel is being undertaken) and the amount allowed for travel under this determination.

10.Costs

Unless a practitioner has made a written agreement as to costs with a client under the provisions of section 282 of 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) in the Family Court are payable by a party to that party’s own legal practitioner, but shall not exceed an amount calculated at the hourly rates in this Determination.

 

Notes

1This is a compilation of the Legal Profession (Family Court of Western Australia) Determination 2018. The following table contains information about that determination.

Compilation table

Citation

Gazettal

Commencement

Legal Profession (Family Court of Western Australia) Determination 2018

21 Jun 2018 p. 2147‑50

1 Jul 2018 (see cl. 2)

 

 

 


[1]

Published in Government Gazette dated 31 March 2009