Legal Profession (Supreme and District Courts) (Criminal) Determination 2018 (WA)

21 June 2018	GOVERNMENT GAZETTE, WA	2139
LEGAL PROFESSION ACT 2008

LEGAL PROFESSION (SUPREME AND DISTRICT COURTS)

(CRIMINAL) 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 (Supreme and District Courts) (Criminal) Report 2018.
(b)	The Determination set out in the Schedule to this Report is referred to in this Report as the Legal Profession (Supreme and District Courts) (Criminal) 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 (Supreme and District Courts) (Criminal) Determination 2018, the Legal Costs Committee—

(a)	reviewed all submissions received as a result of the notice given under section 278 of the Act including those submitted by The Law Society of Western Australia (Inc); and
(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 the rates used in the Legal Profession (Supreme and District Courts) (Criminal) Determination 2018.

(b) it is the recommendation of the Legal Costs Committee that—

(1) as a result of the inquiries and submissions described in clause 3;

1 Published in Gazette 24 June 2016

(2) having considered the impact of relevant Australian Bureau of Statistics data;

(3) taking into account the incidental administrative implications of the calculation of the

Goods and Services Tax; and

(4) to be consistent with the hourly and daily rates referred to in the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2018 to be gazetted at or about the same time as this Report,

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 (Supreme Court and District Court) (Criminal) Determination 20161 as the basis for the recommended scale of costs. Those rates are set out in Table A of the Legal Profession (Supreme and District Courts) (Criminal) Determination 2018.

(c) 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.

2140 GOVERNMENT GAZETTE, WA 21 June 2018

Schedule

LEGAL PROFESSION ACT 2008

LEGAL PROFESSION (SUPREME AND DISTRICT COURTS) (CRIMINAL)

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 (Supreme and District Courts) (Criminal)

Determination 2018.

This Determination comes into operation on 1 July 2018. 3 Application	2 Commencement respect of advice given by legal practitioners in or for the purposes of criminal proceedings or potential criminal proceedings which are ultimately dealt with in the Supreme Court of Western Australia or the District Court of Western Australia.
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
(a)	The amendments brought in by the Legal Profession (Supreme Court and District Court) (Criminal) Determination 2016 remain in effect. Clause 5(e) of that Determination ceases to have effect with the introduction of this Determination.

6 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 winch the Legal Costs Committee determines shall be used to calculate the dollar amounts chargeable by a law practice in providing advice and services to clients in respect of criminal proceedings and potential criminal proceedings which are ultimately dealt with in the Supreme Court of Western Australia and the District Court of Western Australia.

(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

Maximum

Fee Earner 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	$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.

21 June 2018 GOVERNMENT GAZETTE, WA 2141

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 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 and are not to be charged at rates applicable to Senior Practitioner.

(c)	The increase in Counsel rates, and no increase in Senior Counsel rates 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 legal practitioner and client, a legal practitioner 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
of travel; and and reasonably where the travel is necessary to service more than one client on the day
(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

(a) Unless a law practice 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 relevant Court are payable by a party to that party's own law practice and must not exceed an amount calculated at the hourly rates in Table A.

(b) Item 24 of the Legal Profession (Supreme and District Courts) (Contentious Business)

Determination 2018 will apply to law practice/client costs on appeals to the Supreme Court from any decision of a lower Court or a single Judge exercising the relevant Court's criminal jurisdiction.

Made by the Legal Costs Committee on 13 June 2018.