Legal Profession Act 2008

Legal Profession (Magistrates Court) (Civil) Determination 2020

 

Legal Profession (Magistrates Court) (Civil) Determination 2020

Contents

1.Citation1

2.Commencement1

3.Application1

4.No minimum charge1

5.Fixed items2

6.Time estimates2

7.Counsel2

8.Settled proceedings3

9.Restricted Practitioner category3

10.Maximum hourly and daily rates3

11.Costs6

Notes

Compilation table15

 

Legal Profession Act 2008

Legal Profession (Magistrates Court) (Civil) Determination 2020

1.Citation

This Determination may be cited as the Legal Profession (Magistrates Court) (Civil) Determination 2020.

2.Commencement

This Determination comes into operation on 1 July 2020.

3.Application

(a)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 civil proceedings before the Magistrates Court.

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

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(c) provides for $3,344 for the work involved. The figure of $3,344 is a maximum, but on taxation less than $3,344 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), 11, 12(c), 17(a)(2), 17(b), 18(a), 20 and 21(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 15(a), which relates to preparation for trial or getting up a 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 19. The hours referred to in this Determination will guide the Assessing Officer about the amount which should be allowed in a particular case.

7.Counsel

(a)In items 13 and 15, if independent counsel is not retained for the trial, this will be a factor to be considered by the Assessing Officer who might not then permit the full amount in the determination for fee on brief under item 15(a), as well as a full getting up allowance under item 13. This is in line with the decisions of Commonwealth v Magriplis (1962) 3 FLR 47 and Washbourne v SEC (1992) 8 WAR 188.

(b)All appearances allowed for in items 10, 15 and 22 of Table B 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.

(c)Fees charged by practitioners who practise 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.

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

(e)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.

[Clause 7 correction: Gazette 9 Oct 2020 p. 3675.]

8.Settled proceedings

It is intended that item 13 should apply even if there is no trial. Therefore, 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.

9.Restricted Practitioner category

The amendments brought in by the Legal Profession (Magistrates Court) (Civil) Determination 2016 remain in effect, other than clause 10(e) of that Determination.

10.Maximum hourly and daily 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 set out in Table B. Except for certain items, each item in this Determination specifies a dollar amount with reference to the fee earner.

(b)The rates referred to in paragraph (a) were ascertained in the manner set out in clause 4 of the Legal Profession (Magistrates Court) (Civil) Report 2020.

(c)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.

(d)The items in Table B are not intended to be calculated on the basis of a minimum 6 minute unit.

Table A

Fee Earner

Maximum allowable hourly rates

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

$418

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

$319

Restricted Practitioner (RP)#, °

$231

Clerk/Paralegal (C/PL)##

$154

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

 

Counsel*

hourly rate

daily rate

 

$363

$3,630

Senior Counsel**

hourly rate

daily rate

 

$539

$5,390

°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, including for the purposes of items 10, 15 and 22, 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).

11.Costs

(a)Subject to the provisions of the Act permitting a law practice 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)—

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

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

shall not exceed the amounts set out in Table B (except as otherwise provided in item 25 of Table B).

(b)Allowances made under item 25 of Table B are only to be awarded as between a law practice and its client, and not between party and party unless the Court otherwise orders. The item is not intended to be used to claim increased allowances for items which should properly fit into another item in the Determination, for example item 10.

(c)The Legal Costs Committee notes the impact of the decision in Rodwell v Hutchinson [2010] WASCA 197, and so no allowance is made in this determination for an award of indemnity costs.

(d)The Legal Costs Committee notes the comments of the court in Defendi v Eden Hill Plasterers [2008] WASCA 269 at [7] as to the importance of the proportionality principle in litigation in this Court, which arises in respect to all costs incurred in the Court.

Table B

Magistrates Court Civil Scale of Costs 2020

Item

 

Time

Fee Earner

$

1.

Letter of demand issued prior to proceedings

 

 

77

2.

Claim—

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

(b)For each additional defendant

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

 





8 hours

 





SP

 

418


55

3,344

3.

Appointment of litigation guardian

2 hours

RP

462

4.

Response—

(a)Lodgement of a response to a claim

(b)Statement of defence

(c)Counterclaim, including instructions and statement of claim in the counterclaim, and all other documents necessary

 

 

8 hours

8 hours

 

 

SP

SP

 

209

3,344

3,344

5.

Third party claim, including instructions and list of documents

8 hours

SP

3,344

6.

Disclosure—

Giving additional disclosure where ordered by the Court or a Registrar

 

5 hours

 

RP

 

1,155

7.

Inspection—

Inspection and giving inspection whether by personal attendance or otherwise

 

per hour

 

RP

 

8.

Interrogatories—

(a)Delivery of interrogatories

(b)Answers to interrogatories including affidavit

 

5 hours

5 hours

 

SP

SP

 

2,090

2,090

9.

Interpleaders—

Interpleader proceedings—

(a)where uncontested

(b)where contested

 

 

1 hour

 

 

JP

 

 

308

An allowance in accordance with item 10

10.

Application to the Court—

(a)Applications and responses to applications including under Part 21 of the Magistrates Court Civil Proceedings Rules 2005, including all documentation in preparation for hearing

 

1 day preparation ½ day hearing

 

C

 

5,445

 

(b)Second or subsequent half day

 

C

1,815

 

(c)Ex parte applications, including preparation

per hour

SP

 

 

(d)If the hearing on any one day comprises a directions hearing or similar only

1 hour

SP

407

 

(e)Application for substituted service

2 hours

JP

638

 

Note: If the proceedings do not commence and settle or adjourn on the day of the hearing, then the Assessing Officer shall allow an amount which is reasonable in the circumstances

 

 

 

11.

Application for entry of judgment by default (without trial)

 

 

154

12.

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

(a)Offers of settlement

(b)Acceptance of offer of settlement

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

(e)Preparation, lodgement and service of a listing conference memorandum excluding witness statements



2 hours

2 hours





per hour

3 hours



SP

SP





SP


SP

 



836

836

154



418


1,254

13.

Preparation of case—

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

 

50 hours

 

SP

 

20,900

14.

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

 

 

An allowance in accordance with item 15(e) or (f)

15.

Trial—

(a)Fee on brief for Counsel; i.e. half day trial and preparation

 

2 days preparation ½ day of trial

 

C

 

9,075

 

(b)Allowance for second half day of trial

 

C

1,815

 

(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

13,475

 

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

 

SC

2,695

 

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

 

C

3,630

 

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

 

SC

5,390

 

(g)Instructing legal practitioner attending trial

per hour

JP/RP

 

 

(h)Clerk attending trial

per hour

C/PL

 

 

Note: Subject 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 circumstances

 

 

 

 

(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

 

16.

Pre‑trial, mediation, conferrals, or other conferences

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

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

(c)preparation reasonably undertaken for the conferences described in paragraphs (a) and (b) of this item.





per hour





SP

 

17.

Judgments and orders—

(a)Settling and extracting judgment or order

(1)with appointment

(2)without appointment

(b)Request for certified copy of judgment or order

 


1 hour

 


RP

 


231

209

154

18.

Enforcement—

(a)Execution

(b)If against land, an additional

 

 

3 hours

 

 

RP

 

198

693

19.

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

(a)Means Inquiry

(b)Default Inquiry

(c)Suspension of enforcement order application

(d)Application to cancel or amend an order

1.5 hours

JP

RP

C/PL

484

352

231

20.

Registration of judgments—

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

 

 

 

209

21.

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)


 


per hour


JP


JP

JP


55

22.

Appeals—

An appeal to a Magistrate from a decision of a Registrar

 

 

 

Allowances calculated in accordance with item 10

23.

Copies—

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

 

per page

 

 

0.165

24.

Accounts and inquiries—

Attending on taking accounts, inquiries

 

 

SP

 

An amount which is reasonable in the circumstances

25.

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

or

 

 

per hour






per hour

SC

C

SP

JP

RP

C/PL

 

 

(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)

Note: Allowances under item 25 are only to be awarded as between a law practice and its client, and not between party and party unless the Court otherwise orders.

 

 

 

26.

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

27.

Allowances for witnesses—

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

(a)witnesses necessary to the case because of their professional, scientific or other special skill or knowledge; and

(b)witnesses necessary to the case 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;

In fixing an allowance for witnesses under either paragraph (a) or paragraph (b), regard should be given to whether it was reasonable in all the circumstances to call a witness in person when the witness was able to give evidence by use of audio‑link, video‑link or similar technology.

28.

Travel—

(a)As between party and party, minor travel as defined in the Legal Profession (Magistrates Court) (Civil) Determination 2016, is to be allowed as part of the costs awarded for an attendance at chambers or Court, without further order.

(b)As between party and party, time spent travelling by a law practice which is not minor travel and which is required by reason of an order of the Court requiring the parties to attend at a location other than the location at which the proceedings is case managed, 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, without further order.

(c)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.

Note: Allowances under item 28(c) are only to be awarded as between a law practice and its client, and not between party and party unless the Court otherwise orders.

[Clause 11 correction: Gazette 9 Oct 2020 p. 3676.]

 

 

Notes

This is a compilation of the Legal Profession (Magistrates Court) (Civil) Determination 2020. For provisions that have come into operation see the compilation table.

Compilation table

Citation

Published

Commencement

Legal Profession (Magistrates Court) (Civil) Determination 2020

18 Jun 2020 p. 1740-6 (Correction in Gazette 9 Oct 2020 p. 3675-6)

1 Jul 2020 (see cl. 2)