Legal Practitioners (Local Court) (Contentious Business) Determination 2005 (WA)

1 March 2005 GOVERNMENT GAZETTE, WA 867

LEGAL PRACTICE ACT 2003

LEGAL PRACTITIONERS (LOCAL COURT) (CONTENTIOUS BUSINESS) REPORT 2005

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

PART 1—PRELIMINARY

Citation
1. (1) This report may be cited as the Legal Practitioners (Local Court) (Contentious Business) Report
2005.
(2) The determination set out in the Schedule to this report is referred to in this report as the Legal

Practitioners (Local Court) (Contentious Business) Determination 2005.

PART 2—NOTICE AND INQUIRIES

Notice under section 213 of the Act
2. The Legal Costs Committee has complied with the notice provisions of section 213 of the Act.
Inquiries and submissions under section 213 of the Act
3. Before making the Legal Practitioners (Local Court) (Contentious Business) Determination 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 Law Society of Western Australia (Inc.);

(d)	reviewed the Legal Practitioners (Local Court) (Contentious Business) Determination 20021; and
(e)	had regard to relevant provisions of the Magistrates Court Act 2004 and the Magistrates Court (Civil Proceedings) Act 2004 which are proclaimed to commence 1 May 20052.

1 [Published in Gazette 24 Sept 2002 pp. 4749-57].

2 [see s. 2 and Gazette 31 Dec 2004 p. 7127].

PART 3—REPORT OF COMMITTEE’S CONCLUSIONS

Hourly rates and scale of costs unchanged
4. (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 impending commencement of the
Magistrates Court Act 2004 and the Magistrates Court (Civil Proceedings) Act 2004, amendment to
the rates used in the Legal Practitioners (Local Court) (Contentious Business) Determination 2002 is
not warranted.
(2) It is the recommendation of the Legal Costs Committee that the hourly rates and scale of costs
used in the Legal Practitioners (Local Court) (Contentious Business) Determination 2002 be adopted
as the basis for fixing costs in the Legal Practitioners (Local Court) (Contentious Business)
Determination 2005. Those rates and scales are set out in the Tables to clauses 12 and 13 of the Legal
Practitioners (Local Court) (Contentious Business) Determination 2005.

(3) 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.

TED SHARP, Chairman.
MICHAEL McPHEE, Deputy Chairman.
JANINE FREEMAN, Member.
ANGELA GAFFNEY, Member.
CLARE THOMPSON, Member.

MARCUS COCKER, Member.

————

868 GOVERNMENT GAZETTE, WA 1 March 2005

Schedule

LEGAL PRACTICE ACT 2003

LEGAL PRACTITIONERS (LOCAL COURT)

(CONTENTIOUS BUSINESS) DETERMINATION 2005

Made by the Legal Costs Committee under section 210 of the Act.
Citation
1. This determination may be cited as the Legal Practitioners (Local Court) (Contentious Business)

Determination 2005.

Commencement
2. This determination comes into operation on 1 March 2005.
Application
3. (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 the Local 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.

Routine and non routine scales
4. (1) The Legal Costs Committee determines that the division of work into routine and non routine
matters introduced under the Legal Practitioners (Local Court) (Contentious Business) Determination
1997* should continue to be adopted.

(2) The routine scale applies unless—

(a) the parties agree; or

(b) a Magistrate determines at any time,

that the non routine scale applies.
No minimum charge
5. 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 6. For example, item 13(a) in the non routine Scale Division 1 provides for
a range of $525 to $875 for the work involved. The figure of $875 is a maximum, but on taxation less
than $525 might be allowed. Where there is a range of figures the purpose is to indicate to the Taxing

Officer what reasonably may be expected in most cases.

*[Published in Gazette 25 March 1997 pp. 1607-16].

Fixed items
6. Some items in the Scale have been fixed without any indication of how these items have been
calculated. These items are 1(b), 3, 16(a) and 16(i). These have been fixed because the Court staff
require a fixed figure when completing the Form of Summons, Entry of Judgment by Default,
Judgment Summons, or the like.

Scale divisions jurisdiction. The figure of $3,000 was adopted because it corresponds with the jurisdictional limit of the Small Disputes Division of the Local Court. In each of these Divisions there is a routine and a non routine Scale.

7. The Committee has adopted a Division providing a Scale of Costs for claims under $3,000 and a

Time estimates
8. 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 13(a), which relates to preparation for trial or getting up case for trial, the
routine Scale in Division 2 assumes that no more than 3 hours would be spent in preparation and
getting up case for trial. If at the time judgment is given, the Magistrate or the Court is reasonably
satisfied that the case did involve more than 3 hours by way of preparation, then the Magistrate or
the Court may order that the costs be taxed on the non routine Scale. The hours referred to in the non
routine Scale will guide the Taxing Officer about the amount which should be allowed in a particular
case.

1 March 2005 GOVERNMENT GAZETTE, WA 869

Settled procedures
9. It is intended that item 13 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, then costs may
be recovered for that work and allowed on taxation.

Independent counsel up case allowance under item 13.

10. If independent counsel is not retained in the case, then this will be a factor to be considered by the

First trial date
11. A new item 14(a) has been included to address costs associated with the Local Court requirement

upon entry for trial to list a date prior to the date listed for trial.

Hourly rates in the Table to clause 13.

12. The hourly rates set out in the Table to this clause are the maximum hourly rates which the Legal

Table to Clause 12

Fee Earner Maximum allowable

hourly rates

Practitioner (admitted for 5 years or more)

(SP) – hourly rate $250

Junior Practitioner (admitted for less than 5 years)

(JP) – hourly rate $175

Clerk/Paralegal

(CPL) – hourly rate $75

Scale of costs
13. 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 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 13

LOCAL COURT SCALE OF COSTS 2005

DIVISION 1 DIVISION 2

Not Exceeding $3000 Exceeding $3000

Item ROUTINE NON ROUTINE NON

ROUTINE ROUTINE

hours $ hours $ hours $ hours $

1.	(a)	Letter of demand	0.3	52	0.3	52	0.3	52	0.3	52
issued prior to commencing proceedings
(b)	Summons (including	81	81	139	139
endorsement)

2.	Appointment of legal	0.5	87	0.5	87	0.5	87	0.5	87
representative for person under disability (next friend or guardian ad litem)
3.	Entry of Judgment by	23	23	23	23
default
4.	Particulars of Claim	0.5	87	1	175	0.5	87	1-2	175-500
(where required or by order)
5.	Particulars of defence	0.5	87	1	175	0.5	87	1-2	175-500

8.	Notices of any kind	0.3	52	0.3	52	0.3	52	0.3	52
required by the Act or the Rules and not otherwise specified in the Scale
9.	Payment into or out	0.5	87	0.5	87	0.5	87	0.5	87
of court (including requisite notices)
10.	Application for trial	0.2	35	0.2	35	0.2	35	0.2	35
or assessment of damages
11.	Examination of	per	175	per	175	per	175	per	250
witness before trial	hour	hour	hour	hour
pursuant to order

12.	(a)	Pretrial
conference (including necessary preparation,
notices,
correspondence,
and briefing
counsel)—
with appearance 1 175 1-2 175-350 1 175 1-3 175-750
by solicitor
with appearance 1 75 1-2 75-150 1 75 1-3 75-225
by clerk

(b) Attending 0.5 87 0.5 87 0.5 87 0.5 87

callover

(c) Attending per 175 per 175 per 175 per 175

informal	hour	hour	hour	hour
conferences where reasonably held after commencement of proceedings

13.

Preparation for trial which involves getting up case for trial and consists of all aspects not otherwise specified associated with preparing for trial including taking statements from and proofing witnesses, advice on evidence and law and delivering brief to counsel. Note: If the action terminates before trial or listing for trial, the Taxing Officer may allow remuneration under this item and may allow less than the amount or minimum amount stated in the column as the officer finds reasonable in the circumstances.

1 March 2005 GOVERNMENT GAZETTE, WA 871

DIVISION 1 DIVISION 2

Not Exceeding $3000 Exceeding $3000

Item ROUTINE NON ROUTINE NON

ROUTINE ROUTINE

hours $ hours $ hours $ hours $

(a) Where liability is 2.5 437 3-5 525-875 3 525 4-20 700-5000

an issue

(b)	For an	1.7	298	2-3	350-525	2	350	2-10	350-2500
assessment of damages only

(c) Getting up case 2.5 437 2.5-5 437-875 3 525 3-10 525-2500

for rehearing or
new trial

14.       Trial—

(a) First Trial Date 1-2 175-350 1-2 175-500 1-2 175-350 1-2 175-500

(b) Fee on brief i.e., 5 875 6-7 1050-1225 6 1050 7-15 1225-3750

First day of trial
(including

mastering brief)

(c)	Each additional	5	875	5	875	5	875	5	875-1250
day

Note: In relation to
paragraphs (b) and (c)
if

(1) The trial lasts

less than 2 hours;

or

(2) The trial does not

commence and
settles or
adjourns on the

day of trial,

then the Taxing
Officer shall allow
such amount as is
reasonable in the

circumstances

(d)	Attending	1	175	1	175	1	175	1	175
reserved decision in court

15.	(a)	Proceedings in
chambers (including preparation for
hearing)
(i) without an 0.5 87 0.5 87 0.5 87 0.5 87

appearance

(ii)	for each	1	175	1.2	210	1	175	5	875-1250
appearance by solicitor
(iii)	for each	1	75	1.2	90	1	75	5	375
appearance by clerk

Note: In relation to paragraph (a) if the proceedings in

chambers do not
commence and settle
or adjourn on the day
of the hearing then
the Taxing Officer
shall allow such
amount as is
reasonable in the
circumstances

(b)	Preparation and	0.5	87	0.5	87	0.5	87	1	175
filing of affidavits of service of general interlocutory process

16.	(a)	Judgment	116	116	116	116
Summons (including all incidental attendances by solicitor or clerk)

(b)	Bench/Chamber	0.5	37	0.5	37	0.5	37	0.5	37
Warrant/ Warrant to arrest witness
(c)	Order of	0.5	37	0.5	37	0.5	37	0.5	37
Commitment
(d)	Consent Affidavit	0.5	37	0.5	37	0.5	37	0.5	37
(e)	Application for	0.5	37	0.5	37	0.5	37	0.5	37
fresh order by request in writing pursuant to 0.23 R.8

(f) Issue of Certified 0.5 37 0.5 37 0.5 37 0.5 37

Copy of

Judgment

(g)	Warrant of	0.5	37	0.5	37	0.5	37	0.5	37
Execution, Possession, Delivery or Replevin
(h)	Warrant of	1	75	1	75	1	75	1	75
Execution where land involved
(i)	Examination in	116	116	116	116
Aid of Execution (including all incidental attendances by solicitor or clerk)

17.	Drawing up and	0.5	37	0.5	37	0.5	37	0.5	87
serving interlocutory orders (where ordered or required)
18.	Third party notice	0.5	87	0.5	87	0.5	87	0.5	87
and particulars
19.	Applications in court	0.5	87	.5	87	1	175	1	250
or chambers not otherwise provided for
20.	(a) Delivery of	0.5	87	1	175	0.5	87	1-3	175-750

interrogatories

(b) Answers to 0.5 87 0.5 87 0.5 87 1-3 175-750

1 March 2005 GOVERNMENT GAZETTE, WA 873

DIVISION 1 DIVISION 2

Not Exceeding $3000 Exceeding $3000

Item ROUTINE NON ROUTINE NON

ROUTINE ROUTINE

hours $ hours $ hours $ hours $

22.	Interpleader	0.5	87	0.7	122	0.8	140	1	175
proceedings (where uncontested)
23.	Application for	1.5	262	1.5	262	1.5	262	1.5	262
garnishee order (where uncontested)

24.	Recovery of	2	350 2-2.5	350-437	2	350 2-2.5	350-437
possession (undefended, including appearance)

25.	Drawing Bill of Costs,	0.5	37	1	175	0.6	105	1	175
copies and service
26.	Attending on taxation	0.5	87	0.7	122	0.5	87	1-2	175-350
of costs—

(a) with an
appearance by
solicitor

(b) with an 0.5 37 0.7 52 0.5 37 1-2 75-150

appearance by

clerk

27.	Attending on taking	per	175	per	175	per	175	per	175
accounts, inquiries	hour	hour	hour	hour
28.	Preparation of	0.5	37	1	175	0.5	37	1	175
Judgments or Orders (where necessary)
29.	Registration of	0.7	122	0.7	122	0.7	122	0.7	122
Judgments including those under the Service and Execution of Process Act 1992 (Cwlth)
30.	Affidavits justifying	0.5	37	0.5	37	0.5	37	0.5	87
choice of Court
31.	Application for review	0.5	87	0.7	122	0.5	87	0.7	122
of taxation of costs by Magistrate
32.	Photocopies where necessary—

per page $0.50

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.

34.

Allowances for Witnesses Officer may have regard to the amount of salary, wages or income (if any) actually lost by the witness.

Made by the Legal Costs Committee on 15 February 2005.

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