Legal Profession (District Court Appeals) (Contentious Business) Determination 2018 (WA)

21 June 2018	GOVERNMENT GAZETTE, WA	2143
LEGAL PROFESSION ACT 2008

LEGAL PROFESSION (DISTRICT COURT APPEALS)

(CONTENTIOUS BUSINESS) REPORT 2018

Made by the Legal Costs Committee under Division 5 of Part 10 of the Legal Profession Act 2008

(Act).

PART 1—PRELIMINARY

1. Citation

(a) This Report may be cited as the Legal Profession (District Court Appeals) (Contentious

Business) Report 2018.

(b) The Determination set out in the Schedule to this Report is referred to in this Report as the

Legal Profession (District Court Appeals) (Contentious Business) 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

Before making the Legal Profession (District Court Appeals) (Contentious Business) Determination

2018, the Legal Costs Committee—

(a)	reviewed all submissions received as a result of the notice given under section 278 of the Act;
(b)	considered the impact of changes in relevant Australian Bureau of Statistics data for the

period.

PART 3—REPORT OF LEGAL COSTS COMMITTEE'S CONCLUSIONS

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

(a) 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 law practices as the basis for rates used in the Legal Profession (District Court Appeals) (Contentious Business) Determination 2018.
(b) It is the recommendation of the Legal Costs Committee that—
1	Published in Gazette 24 June 2016

(1)	as a result of the inquiries and submissions described in clause 3;
(2)	having considered the impact of relevant Australian Bureau of Statistics data;
(3)	having considered submissions and data from The Law Society of Western Australia
and the Western Australian Bar Association; and
(4)	taking into account the incidental administrative implications of the calculation of the
Goods and Services Tax,

the hourly and daily rates referred to in sub-clause 4(a) be varied from the hourly and daily rates used in the Legal Practitioners (District Court Appeals) (Contentious Business) Determination 20161 as the basis for the recommended scale of costs. Those rates are set out in Table A of the Legal Profession (District Court Appeals) (Contentious Business) Determination 2018.

(c) As a result of the information gained from the inquiries and submissions described in clause 3, it is the recommendation of the Legal Costs Committee that the scale of costs as set out in Table B of the Legal Profession (District Court Appeals) (Contentious Business) Determination 2018 be adopted for appeals in the District Court.

2144 GOVERNMENT GAZETTE, WA 21 June 2018

(d) The recommendations of the Legal Costs Committee are not intended to override any entitlement of a law practice to make a written agreement as to costs with a client under the Act or any successor legislation.

CLARE THOMPSON, Chair.
ANGELA GAFFNEY, Member.
MARCUS COCKER, Member.
JANICE DUDLEY, Member.
MATTHEW CURWOOD, Member.

BRENDAN ASHDOWN, Member.

Schedule

LEGAL PROFESSION ACT 2008

LEGAL PROFESSION (DISTRICT COURT APPEALS) (CONTENTIOUS BUSINESS)

DETERMINATION 2018

Made by the Legal Costs Committee under section 275 of the Legal Profession Act 2008 (Act).

1. Citation
This Determination may be cited as the Legal Profession (District Court Appeals) (Contentious

Business) 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 appeals to a Judge of the District Court of Western Australia, whether from a Registrar of that Court or from another Court or Tribunal.

4. Restricted Practitioner category
The amendments brought in by the Legal Profession (District Court Appeals) (Contentious Business) Determination 2016 remain in effect. Clause 5(e) of that Determination ceases to have effect with the introduction of this Determination.
5. 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 in the scale of costs set out in Table B.
(b)	The rates referred to in paragraph (a) were ascertained in the manner set out in clause 4 of the Legal Profession (District Court Appeals) (Contentious Business) Report 2018.
(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

Maximum allowable

Fee Earner 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/PQ ##

hourly rate $231

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

Counsel (C)*

hourly rate	$418
daily rate	$4,180

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GOVERNMENT GAZETTE, WA

Maximum allowable

Fee Earner hourly and daily

rates

Senior Counsel (SC)**

hourly rate	$682
daily rate	$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 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 under item 12 of Regulation 5(2) of the Legal Profession Regulations 2009 (WA).

6. Counsel fees

(a)	Appearances allowed for in item 2 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 practise solely as banisters 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.

7. 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 law practice,

shall not exceed the amounts set out in Table B.

Table B

District Court Appeals Scale of Costs 2018 Fee

Item Time Earner $

1. Notice of appeal or Notice of

Contention

(a) Appeal notice (pursuant to Rule 15 1 hour SP 495

of District Court Rules 2005)

(b) Other appeals 5 hours SP 2,475

2.	Interlocutory hearings—as required	per hour	C
(including preparation)
3.	Preparation of appeal for hearing	10 hours	SP 4,950
(including preparation of appeal documents and submissions)

4. Counsel fee on hearing (including 2 days C

preparation)	preparation/l.	SC	12,540
day hearing	20,460

5.	Counsel fee for second and each successive	C	4,180
day of hearing	SC	6,820
6.	Attendance at appeal by instructing legal	per hour	SP
practitioner

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Fee

Item	Time	Earner	$
7.	Attending on reserved decision (including	per hour	SP
preparation, consideration of reasons for decision and all necessary work and attendances to obtain final orders)
8.	Settling and extracting order disposing of appeal

(a)	With appointment	627
(b)	Without appointment	242

9.	Other notices and certificates referred to or	66
required by the Rules or procedures of the Court (including practice directions)
10. Taxing including drawing	SP	An amount

(a)	Drawing bill of costs and service	which is reasonable
(b)	Taxation of costs (including time

in the

spent preparing for the taxation) circumstances

11. Copies where reasonably necessary, per page 0.165

including of documents for which allowance

is otherwise made in this Determination

12. 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.

13 Travel

(a) As between party and party, minor travel as defined in the Legal Profession

(District Court Appeals) (Contentious Business) 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 13(c) are only to be awarded as between a law practice and its client, or if costs are awarded on an indemnity basis and not between party and party unless the Court otherwise orders.

Made by the Legal Costs Committee on 13 June 2018.