COSTS ORDERS UNDER PART 2A OF THE CIVIL LIABILITY ACT 2002 (WA)

Legal Directions

In 2018 the Civil Liability Act 2002 (WA) (the Act) was amended to provide a basis to bring legal proceedings against institutions for historical child abuse and to enable institutions to meet their liabilities arising from such proceedings.

Section 15L of the Act introduces a cap on the legal fees that can be charged to a client.

In Lawrence v Province Leader of the Oceania Province of the Congregation of the Christian Brothers [2020] WADC 27 (S) (Lawrence), the District Court considered whether s15L prevents the making of a special costs order.

Section 15L(2) relevantly provides:

An agreement must not be made for a law practice to receive, for appearing for or acting on behalf of a person in a child sexual abuse action, any greater reward than is provided for by any costs determination that is in force.

That is, practitioners are limited to charging at the rate, and only for work covered by the ambit of, the costs determination.

Section 280(2) of the Legal Profession Act 2008 (LPA) empowers a Court to make special costs orders in circumstances where the amount allowed for under the costs determination is inadequate. The Court may order removal of the limit or a higher limit for costs under the determination.

In Lawrence the plaintiff was awarded damages and the costs of the action. A dispute arose as to costs, with the plaintiff seeking an order that costs be assessed without reference to the limits in the determination for particular items.

The plaintiff relied upon the similarity of s15L(2) of the Act and s27A of the
Motor Vehicle (Third Party Insurance) Act 1943 (WA), and a previous decision confirming the Court’s power to make special costs orders notwithstanding s27A.

The defendant submitted that s15L of the Act and s280(2) of the LPA were inconsistent, as a special costs order would result in a lawyer receiving more than provided for by the costs determination.

His Honour Herron DCJ rejected the defendant’s submissions and observed that s280(2) of the LPA:

…expressly recognises that there may be circumstances where the Determination is ‘inadequate because of the unusual difficulty, complexity or importance of the matter’ and provides the court with the power to make special costs orders to reflect those circumstances.

In short, the applicable costs determination is to be read with s280(2) of the LPA, with the determination providing a cap on fees and the LPA providing the Court with the discretion to increase that cap. His Honour consequently determined that the Court has the power to make a special costs order in such instances.

Summary

The Lawrence decision is somewhat unsurprising, and we note similar provisions under the Motor Vehicle (Third Party Insurance) Act and the Workers’ Compensation (Injury Management) Act. However, importantly, the decision makes it clear that the costs determinations are subject to the LPA and do not serve to limit the Court’s discretion to nonetheless order costs above the maximum allowances under the determination.

Moray & Agnew is experienced in dealing with legal costs and can assist with all aspects of costs claims.

Further information / assistance regarding the issues raised in this article is available from the author, Daniel Coster – Senior Associate, or your usual contact at
Moray & Agnew.


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