Legal Practitioners (Supreme Court) (Contentious Business) Determination 1996 (WA)

20 December 19961 GOVERNMENT GAZETTE. WA 7081

LEGAL PRACTITIONERS ACT 1893

LEGAL PRACTITIONERS (SUPREME COURT) (CONTENTIOUS BUSINESS)

DETERMINATION 1996

Made by the Legal Costs Committee under section 58W of the Act.

PART 1-PRELIMINARY

Citation

1. This determination may be cited as the Legal Practitioners (Supreme Court) (Conten-

tious Business) Determination 1996.
Commencement

2. This determination comes into operation on 1 February 1997

Application

3. (1) Subject to subclause (2) this determination applies to-

(a)	contentious business in the Supreme Court ofwestern Australia ("Supreme Court"); and
(b)	pursuant to sections 64(1), 66 and 67(2) of the District Court of Western Australia

Act 1969, to contentious business in the District Court.

(2) This determination does not apply to-

(a) the costs of appeals to the District Court of Western Australia ("District Court") (which are covered by a separate determination); or

(b) costs incurred before 1 February 1997.

Notice under section 58Y of the Act

4. The Committee has complied with section 58Y of the Act.

PART 2-INVESTIGATIONS CARRIED OUT BY THE COMMITTEE

5. (1) Before making this determination the Committee took the following steps-

(a)	obtained information from the Supreme Court and District Court about the number of solicitors conducting Supreme Court and District Court litigation;
(b)	reviewed all submissions received following notice given under Section 58Y of the Act;

(C) conducted oral hearings with interested parties;

(d)	prepared and circulated to relevant parties drafts of the scales with descriptive items covering the work performed by solicitors in the conduct of litigation in the Supreme Court and District Court;
(e)	obtained information as a result of a survey of solicitors about the amount of time which had been spent and the charges which had been made for the last Supreme Court case conducted in the respondent's office;
6. (1) The Committee has decided to alter the basis used for fixing the scale of costs.
(0 conducted a survey of solicitors to ascertain hourly rates charged by them for clerks, and	work performed by senior practitioners, junior practitioners and paralegals and
(g)	conducted a survey of members of the Western Australian Bar Association (Inc) to ascertain the hourly and daily rates charged by members of that Association.

(2) The information obtained satisfied the Committee that the existence of competition for the supply of services to parties involved in litigation made it safe to adopt the rates charged by practitioners as a guide to the rates to be used in this determination.

PART 3-AMENDMENT TO BASIS FOR FIXING COSTS

7082 GOVERNMENT GAZETTE. WA [20 December 1996

(2) The underlying basis for the previous scales of costs was adopted in 1953 and was described inter alia by the Full Court of the Supreme Court of Western Australia in Cruickshank v Producers Markets Co-operative Ltd [l9601 WAR 184-

" ... the 1953 amendments to the costs rules ... have introduced a novel basis for the

fixing of costs, as a result of which, broadly speaking, the remuneration allowable to the profession in litigious works is to be based not on work done but on the value of the subject-matter of the lis - a value to be fixed by the court where the claim is not for a liquidated sum. Formerly the costs recoverable in a civil action were fixed by the Taxing Master after a painstaking and sometimes protracted consideration of the many items contained in elaborate bills of costs culled from diary entries and cost sheets ... Under the new scale the costs allowable are by no means measured by the work actu- ally done. ... The effect is that under the new scale the taxation of profit costs becomes a mere formality; the discretion of the Taxing Master is reduced to a minimum and the real discretion becomes that of the trial judge. His discretion is to fix the value of the subject-matter of the litigation where the claim is other than a liquidated sum ...".

(3) It is the view of the Committee that it is no longer possible to support a scale based on an ad valorem charge for the main item of getting up case for trial. The scale of litigation and the way it is conducted has changed immeasurably since 1953. A survey of costs charged, time spent, and the amount in issue shows that the scale does not reflect the basis on which many solicitors actually charge for the provision of legal services. This has the consequence that solicitors may enter into agreements under section 59 of the Act in order to avoid the constraints of the scale. On the other hand, the Committee considers that there should not be a return to a scale which produces a bill containing numerous small items.

(4) The new scale of costs set out in the Schedule reflects the fact that the costs of legal services provided in relation to Supreme Court and District Court actions are in the main calculated by reference to the time reasonably spent in the provision of those services and by applying to that time a reasonable hourly rate, that rate varying according to the sen- iority and experience of the practitioner and the complexity of the work.

PART 4-0.66, R.12 RULES OF THE SUPREME COURT

Order under 0.66, R.12 of the Rules of the Supreme Court
7 . (1) Another matter also had to be addressed by the Committee. This relates to the

circumstances in which a special costs order should be made under 0.66,R.12 of the Rules

of the Supreme Court. The Committee's determinations have never prevented the Court
from making special costs orders and such orders are often made. However, the lack of information about how the maximum amounts in former determinations were calculated has made the task of the Court a difficult one. The result is that there is an uncertainty

about the likely outcome in relation to special costs order applications.

(2) The new scale of costs shows the time and the fee earner whose hourly rates have been used to calculate the dollar amount in the scale. Set out in the table are the average maxima of hourly and daily rates revealed by the survey Each item in the scale of costs specifies a dollar amount by reference to a fee earner.

Table

Fee Earner Average
Maximum

Rates

Senior Practitioner (admitted for more than 5 years)

(SP) -hourly rate

Junior Practitioner (admitted for less than 5 years)

(JP) -hourly rate

ClerWParalegal (CIPL) -hourly rate

20 December 19961 GOVERNMENT GAZETTE. WA 7083

Counsel Fees charged as a disbursement to practitioners or charged by in-house counsel:

Junior Counsel (JC) -hourly rate $210

-daily rate $2,300

Queen's Counsel (QC) -hourly rate $370

-daily rate $3,500

The reference to Queen's Counsel in this determination (which includes the scale in the schedule) includes reference to Senior Counsel appointed in any State or Territory in Aus- tralia and whose appointment is afforded recognition by the Chief Justice of the Supreme Court.

(3) Thus, for example, item 6(a) of the Schedule which relates to the drawing and settling of a statement of claim, provides for a maximum of 10 hours for the preparation of this document to be performed by a senior practitioner charging at a rate of $270 per hour. In fact, in a particular matter, the time reasonably spent in drawing and settling a state- ment of claim may be only 2 hours and it may be performed by a practitioner who is relatively junior. By reason of the lack of complexity of the case, it may be that such practitioner should only reasonably charge a t the rate of $180 per hour. If that be the case, then $360 would be a reasonable charge. Alternatively, if the statement of claim were drawn in complex litigation and 30 hours were reasonably spent on the task by a senior practitioner who might reasonably charge $280 per hour, then i t would be appro- priate for that party, if it were successful in the litigation to ask for a special costs order to be made by the Court to increase the maximum amount in item 6(a). This flexibility applies to each item in the scale other than the amounts set out in the items referred in Part 4.
(4) Thus, by way of further example, it can be seen that item 2 of the Schedule applies a maximum of $540. It has been calculated on the basis of a junior practitioner taking 3 hours to perform the work and charging at a rate of $180 per hour. However, if in a particular case a senior practitioner performed the work and took 2.45 hours at a reason- able hourly rate of $220 per hour, the result would still be within the maximum amount allowed by the scale. It would then be a matter for the Taxing Officer to decide whether the time spent in performance of the work was reasonably spent by a practitioner of that seniority.
(5) It will be noted from items 13 and 14 of the Schedule that if more than 100 hours must reasonably be spent on getting up the case for trial and if more than 3 days must reason- ably be spent by counsel in mastering the brief and preparing for the trial, then the Com- mittee considers that to be a basis to seek a special order for costs under 0.66,R.12 of the

Rules of the Supreme Court.

PART 5MISCELLANEOUS

Fixed amounts in certain items in Schedule

provide the Court staff with a fixed figure when completing the form of a writ of summons,	8. Items l(a) and (b), 3 and 28(a) and (b) of the Schedule are fixed maximum amounts to
a writ of execution or when entering judgment by default.

PART 6

9. The above text and the Schedule hereto constitutes a determination made by the Legal

Costs Committee under section 58W of the Act.

SCHEDULE

Subject to the provisions of the Rules of the Supreme Court and to the provisions of the Legal Practitioners Act 1893 permitting a solicitor 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 (inclu- sive of 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 solicitor,

shall not exceed the maximum amounts set out in the scale of costs in the Schedule.

7084 GOVERNMENT GAZETTE. WA [20 December 1996

6

SUPREME COURT SCALE OF COSTS

Fee

1 Item Time Earner

(a) or specially indorsed, including

Writ of summons, whether generally of claim.

(b) For each additional defendant

Next friend or guardian ad litem	3 hours
Entrs of judgment without trial
(a) Payment into or out of Court	2 hours
(b) Offer of compromise under 0.24A	2 hours
(C) Acknowledgment of offer under 0.24A
(d)	Acceptance of offer of compromise
under 0.24A 2 hours
(e) Notice of offer to consent to judgment	2 hours
(f)	Other notices referred to or required by the Rules or procedures of the Court (including practice directions)

Memorandum of Appearance	0.5 hours	CPL
Pleadings
(a) Statement of Claim	10 hours
(b) Defence	10 hours
(C) Counterclaim	10 hours

(d)	Reply (if necessary), defence to
counterclaim, or any other pleading 10 hours
(a) Third party notice	2 hours
(b) Pleadings in third party proceedings	6 hours
(a) Requesting particulars of a pleading

(where and to the extent necessary) 3 hours

(b) Giving particulars of a pleading 5 hours

(a) Notice requiring discovery 0.33 hours CPL

(b) Giving discovery of documents 10 hours J P

(c)	Inspection and giving inspection-per hour
(a) Delivery of interrogatories	5 hours
(b) Answers to interrogatories	10 hours
Examination of witness before trial by	in allowance
counsel or solicitor, pursuant to order	n accordance with item
14(c) or (d)

Application for and striking jury	1 hour	180
Getting up case for trial (subject to item 14(f) (includes work reasonably
and necessarily undertaken prior to

commencement of proceedings) 100 hours

20 December l9961 GOVERNMENT GAZETTE, WA 7085

Fee

Item Time Earner

Counsel fees:

(a) Fee on brief, i.e. first day of trial and 3 days JC

preparation preparation
1st day of

trial

(b) Fee on brief for Queen's Counsel, i.e. 3 days QC

first day of trial and preparation	preparation
(wheretwo or more counsel are	1st day of
certified for)	trial

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

(d) Counsel fee for Queen's Counsel for QC

second and each successive day of
hearing (where two or more counsel

are certified for)

(e) Solicitor attending trial, per hour	SP
(0 Clerk attending trial, per hour	CPL

(g)	Attending on a reserved judgment or	SP
at a callover, per hour
(h)	assessment of damages, three quarters of the amounts prescribed
Where the only issue tried is the 14(d) shall be allowable, unless otherwise directed by the Court

Settling and extracting judgment after

trial:

(a) With appointment	2 hours	J P
(b) Without appointment	0.75 hours	CPL
Drawing bill of costs, copies and service	3 hours	CPL
Taking accounts; inquiries; taxation of

costs; and other proceedings not covered
by any other item, per hour	CPL
Re-trial or Re-hearing	Such
(a) Getting up case for re-trial or	amounts
re-hearing	as are
(b) Re-trial or re-hearing	reasonable

in the

:ircumstancet

(a) Special case, case stated (otherwise	Such
than by way of appeal) or trial of an	amounts
issue (not covered by item 14(h))	as are
(b) For the second and each successive	reasonable
day of the trial or hearing	in the

7086	GOVERNMENT GAZETTE. WA	[20 December 1996
Fee

P Item 1 Time Earner

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

(a) Notice of appeal, motion for order nisi

to review, and the like 15 hours

(b) Settling index	2 hours
(c) Getting up appeal for hearing	10 hours
(d) Counsel fee on hearing including	2 days

preparation preparation

1 day

hearing

(e) Counsel fee for Queen's Counsel 2 days

including preparation (where two or	preparation
more counsel are certified for)	1 day
hearing

(f)	Counsel fee for the second and each successive day of hearing
(g)	Counsel fee for Queen's Counsel for second and each successive day of hearing (where two or more counsel are certified for)
(h) Attending on reserved decision	2 hours

(i)  Settling and extracting order

disposing of the appeal-

(i) with appointment 2 hours

P (ii) without appointment 0.75 hours

21. Originating motion or originating 2 days

summons or petition preparation

1 day

P hearing

22.	Motions in Court not otherwise ~rovided	for 1	8 hours
P
23.	Proceedings in Chambers other than	2 days

proceedings to which item 21 applies preparation

24.

Pretrial, mediation or other
conferences-required by order of the
Court, by the Rules of the Supreme Court

or by Practice Direction-per hour

Arbitration proceedings	The same costs as in an action.
Proceedings, whether by action or	Such sum

otherwise, for the recovery of compensatio as is

reasonable

other property by the Crown in right of the	in the
State or of the Commonwealth or by any	:ircumstances
other person, body or instrumentality

20 December 19961 GOVERNMENT GAZETTE. WA 7087

Item

Proceedings by way of prerogative writ	Allowances calculated in accordance with item 20
(a) Execution	200

(b) If against land, a n additional 200

-

Photocopies where necessary, per page 0.80 1

Dated at Perth 3 December 1996.

TED SHARP, Chairman.

CHRIS PULLIN QC, Deputy Chairman.

ANGELA GAFFNEY, Member.

JILL VANDER WAL, Member.
JASON BERRY, Member.

PATRICK COWARD, Member.