Magistrates Court appeal - Proceeding by a Local Government for recovery of unpaid rates and legal costs - Nature and extent of costs which a local government may recover under s 6.56(1) of the Local Government Act 1995 (WA) - Assessment of reasonable costs - Costs reasonably incurred and reasonable in amount

Fire and Emergency Services Act 1998 (WA), s 36Z(2)

Local Government Act 1995 (WA), s 6.56(1)

Magistrates Court (Civil Proceedings) Act 2004 (WA), s 40

Magistrates Court (Civil Proceedings) Rules 2005 (WA), r 81 - r 84

Case remitted to Magistrates Court to be tried before a different magistrate

Brocklehurst v Wolinski [2015] WADC 36

Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403

City of Belmont v Saldanha [No 2] [2018] WASC 278

Gallagher v CSR Ltd (Unreported, WASC, Library No 940165, 31 March 1994)

Parker v City of Rockingham [2021] WASCA 120

W & A Gilbey Ltd v Continental Liqueurs Pty Ltd [1964] NSWR 527

Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2014] NSWCA 99

1. The appellant, Dr Sowden, is a ratepayer within the local government area of the City of Stirling (City) who did not pay his 'council rates' for the 2023/2024 financial year. In May 2024 the City sued Dr Sowden in the Perth Magistrates Court to recover the rates he owed. The City also sought to recover in those legal proceedings the legal costs it incurred in bringing the claim. Specifically, s 6.56 of the Local Government Act 1995 (WA) (LGA) permits a local government to recover from a ratepayer as a statutory debt its reasonable costs of proceedings for the recovery of rates. The Court of Appeal in Parker v City of Rockingham construed s 6.56 as permitting a local government to recover its legal costs to the extent that it proves those costs were reasonably incurred and reasonable in amount.[1]
2. Dr Sowden paid the City the 2023 rates the subject of the proceedings on 11 April 2025 more than seven weeks before a trial was heard by a magistrate on 4 June 2025. Consequently, the only issue for trial was the quantification of the City's reasonable legal costs incurred in the recovery proceedings brought against Dr Sowden.
3. The trial magistrate entered judgment for the City against Dr Sowden in the sum of $53,344, such sum being the City's legal costs which the trial magistrate found had been reasonably incurred and were reasonable in amount in the recovery proceedings. The bulk of the City's legal costs were incurred in a relatively short period before trial, from March 2025 to June 2025.
4. By this appeal, Dr Sowden contends that the trial magistrate made an error in assessing the City's reasonable costs in the sum of $53,344 and that costs of that magnitude were neither reasonably incurred nor reasonable in amount. Beyond his contention that the judgment ordered did not reflect reasonable costs, Dr Sowden advanced numerous other grounds of appeal which, in light of my conclusions, do not require detailed consideration.
5. For the reasons that follow, I consider the trial magistrate made an error assessing the City's reasonable costs in the sum of $53,344. As I will explain, there are two broad reasons for my conclusion.
6. First, the costs as assessed and quantified by the trial magistrate allowed for the recovery of costs for legal services which, in part, were unrelated to the recovery proceedings.
7. Second, the trial magistrate assessed the City's legal costs as reasonable without undertaking an analysis of the basis upon which the City's legal representatives charged the City for the work it performed after being retained in March 2025. No evidence was adduced of:
   • the hourly rates charged for the work performed;
   • the practitioners who performed the legal work;
   • the nature of the composite tasks beyond general descriptions; and
   • whether any consideration was given to duplication.

The legal and factual issues for determination at the trial were narrow and limited. In my view, to justify the recovery of costs in excess of $53,000 as reasonable required a detailed assessment of the legal services performed, including who carried out and the applicable hourly rates. The absence of such analysis, in my view, gives rise to a legal error in the assessment for the purposes of s 6.56 of the LGA.

1. On the materials before me, it is not possible for me to substitute a sum which represents the City's legal costs of the proceedings which were reasonably incurred and reasonable in amount. Accordingly, I will make an order that the case be remitted to the Magistrates Court for rehearing by another magistrate.

1. Local government municipalities raise rates, service charges and levies on property owners within their local government area on an annual basis. Rates and service charges are imposed under the LGA. Levies are imposed under the Fire and Emergency Services Act 1998 (WA) (FESA). For simplicity I will refer to rates, service charges and levies collectively as 'rates'.
2. Section 6.56(1) of the LGA provides:

If a rate or service charge remains unpaid after it becomes due and payable, the local government may recover it, as well as the costs of proceedings, if any, for that recovery, in a court of competent jurisdiction.[2]

1. The right to recover 'the costs of proceedings' under s 6.56 of the LGA includes a right to recover legal costs and disbursements incurred by the local government in legal proceedings against a ratepayer.
2. In Parker the court held a local government's right to costs under s 6.56(1) of the LGA is a right to recover the reasonable costs of the proceedings. Further, a local government's costs of the proceedings ordinarily will be 'reasonable' if or to the extent that the costs have been reasonably incurred and are reasonable in amount.[3] With respect to the assessment of reasonable costs in recovery proceedings where a local government relies upon s 6.56(1) of the LGA, the local government bears the onus, or legal burden, of proving the reasonableness of the costs it incurred as an essential element of the right of recovery. Further, a ratepayer defendant is not required to satisfy any evidential onus, including that the costs claimed are unreasonable.[4]

What are costs 'reasonably incurred' and 'reasonable in amount'?

1. Before turning to the meaning of these words, first principles with respect to the award of costs provide that where costs are awarded by a court order or under a statutory entitlement, the starting position is that the basis for the award is only to provide a partial indemnity for that which the successful party (or entitled party) has paid its solicitor. That position represents a compromise 'between the absence of any provision for costs and full recompense'.[5] Further, the purpose is not to compensate the party in full for the costs it has incurred in the course of the litigation but only to enable recovery of those costs which are strictly necessary, proper or reasonable for the disposal of the litigation.[6]
2. In this respect, in jurisdictions across Australia costs allowed on a party/party basis have been described variously as costs which were 'necessary or proper' for 'the attainment of justice or for enforcing or defending rights' of the party in whose favour the costs order has been made.[7] The burden of satisfying the court that the costs incurred were 'necessary or proper' lies with the receiving party, or the party entitled to recovery. The corollary of that is that any doubt or uncertainty as to the reasonableness or necessity of a claimed cost is to be resolved in favour of the paying party.
3. Whether costs are reasonable in amount (and therefore allowable) would primarily depend upon the reasonableness of the hourly rate claimed by the law practice carrying out the legal services (or the reasonableness of any other method of charging). This may raise related questions of whether it is reasonable to engage a law practice having practitioners of a particular expertise or seniority and, if so, whether the fees of that law practice were reasonable by reference to such matters as the benchmark rates contained in scale determinations prescribed by the Legal Costs Committee. Similar observations apply to counsel. The reasonableness of engaging a specific law practice or counsel when compared to other law practices or counsel is determined by reference to the complexity and importance of the issues in dispute. The more difficult or complex the dispute, the more reasonable it is to expect that a more experienced, senior practitioner would be retained, and their costs allowed.[8]
4. Further, whether an expense claimed is reasonably incurred depends upon the justification for carrying out the particular process and the justification for investing the amount of time claimed in doing so.[9] Hence, detail of what work was performed by a legal practitioner and how long it took to perform the work that was carried out is an important part of assessing the quantum of costs reasonably incurred.
5. With respect to the necessary and proper tests that I have referred to, in general terms, the test as to whether an item of expenditure is 'proper' has been described as that 'of a sensible solicitor sitting in his chair and considering what in the light of his then knowledge is reasonable in the interests of his lay client'.[10]
6. The question of reasonableness is also informed by proportionality, in that the reasonableness of the costs incurred is determined by whether the costs claimed bear a reasonable relationship to the value of the subject matter in dispute.[11]
7. In the usual course, legal fees for the conduct of litigation are calculated according to the number of hours spent in carrying out work, broken down into defined tasks or milestones in the litigation, multiplied by an hourly rate for the legal practitioner (or paralegal) who carried out the defined tasks in conducting the litigation. The information of what work was performed by whom and at what rate is a critical baseline to assess the reasonableness of the amount charged.
8. In an ordinary party/party costs assessment, a bill of costs is submitted for assessment which must set out by item a description of the work performed by reference to scale items under the scale determination prescribed by the Legal Costs Committee and the amount claimed for each item of work. In the Magistrates Court of Western Australia, where a costs order has been made in favour of a successful party at trial, a bill of costs is submitted by the successful party for assessment. The court's rules provide a process for objection, and assessment, in circumstances when an objection is made.[12]

Assessment under s 6.56 of the Local Government Act 1995 (WA)

1. An assessment of costs payable by a ratepayer under the LGA does not follow the procedure mandated for costs assessments under the Magistrates Court (Civil Proceedings) Rules 2005 (WA). Whilst no formal procedure is required to be followed, in my view, to undertake an assessment of reasonableness, a local government ought to provide evidence of each aspect of legal work that was performed by the law practice (or law practices) who performed the work in the recovery proceedings, and the amount which was charged (and how such charge was calculated) for each aspect of the legal work in the recovery proceedings. For example, communications with a client or others on its behalf, court attendances (and preparation for court attendances) and the preparation of the case for trial.
2. In some cases that may be achieved by providing copies of itemised invoices from the law practice rendered to the local government. In other cases, where confidentiality or privilege issues arise as occurred in this case, it may be necessary to provide a schedule outlining the work performed, the practitioner or paralegal who completed each discrete task including the time taken to complete each task and the hourly rate charged. Alternatively, if the local government and the law practice agreed on another charging basis, for example a fixed fee basis, that basis would need to be identified.
3. Where information in the nature of what I have identified in [22] is provided, the court may then assess what amount constitutes reasonable legal costs, whether the full amount claimed or a lesser sum, having regard to all the circumstances. In my view, those relevant considerations include:

(a) the complexity of the factual and legal issues raised in the recovery proceedings;

(b) by reference to those issues, the work reasonably required to be performed;

(c) the seniority and expertise of the practitioners engaged and whether their fees were reasonable, including by reference to benchmark rates in any applicable scale determination;[13]

(d) the number of hours reasonably required for the work that had to be carried out;

(e) where multiple practitioners performed tasks, any duplication between those practitioners;

(f) proportionality, in the sense of whether the costs bear a reasonable relationship to the value of the matter in dispute, but also taking into account the statutory purpose of s 6.56; and

(g) how the amount charged for the work performed compares to any applicable scale of costs.[14]

The facts including the relevant procedural background

1. The City issued a rates notice to Dr Sowden on 20 July 2023 for his residential property in Scarborough for $1,899.68 which he did not pay. The City issued a general procedure claim on 7 May 2024 for the sum of $1,959.62.
2. The City filed its statement of general procedure claim on 19 August 2024. Dr Sowden lodged a defence on 2 September 2024 as well as an application for default judgment. For reasons which are not relevant to the outcome of this appeal the application for default judgment was dismissed.
3. On or about 11 April 2025 Dr Sowden paid the outstanding rates. He subsequently lodged an application that the action against him be dismissed on the basis that the debt had been paid.
4. On 27 May 2025 the trial magistrate dismissed Dr Sowden's application for the dismissal of the claim and his oral application to lodge and serve a counterclaim.
5. Her Honour also dismissed Dr Sowden's application to adjourn the trial which had been listed for 4 June 2025 and made an order that by 3 June 2025 Dr Sowden was to lodge at the court the statement of intended evidence of each witness he intended to call at the trial and by the same date to file and serve any written submissions.
6. The trial of the City's claim was heard on 4 June 2025. In advance of the trial the City filed written submissions which I refer to in [33] and [34] below.

1. At the trial, the City called one witness to prove its claim at trial, Chloe Fletcher, who was employed by the City in the position of 'Service Lead Rates and Receivables'. Ms Fletcher confirmed the contents of a statement of intended evidence of a witness which had been filed on 17 April 2025 and that statement stood as her evidence-in-chief.[15] The statement relevantly provided as follows:
   1. Ms Fletcher was responsible for leading and managing a team of 12 officers of the City who issue rates notices to owners of properties in the district of the City for the purposes of the LGA.
   2. Where there are multiple owners of properties, the City issues rates notices to all owners who are on the title on the City's records. With respect to Dr Sowden's property at Duke Street, Scarborough, Ms Coombes jointly owned the property with Dr Sowden from 30 January 2009 until 24 August 2022.
   3. Rates relating to the 2022/2023 financial year were paid in full on 23 September 2022.
   4. On 20 July 2023, the City issued an annual rates notice for the 2023/2024 financial year in respect of the property, which was sent to the address held on record in the amount of $1,899.68.
   5. On 1 December 2023, Dr Sowden's account was escalated to ARMA, the City's contracted debt collectors. A 'letter of demand' was sent to Dr Sowden on 5 December 2023.
   6. In response Dr Sowden disputed he owed the money, saying that the City should be crediting back two years of rates from 2022 and 2023.
   7. On 19 February 2024 the City sent an email signalling that should payment for 2023/2024 not be made within 7 days it would commence with legal proceedings to recover the debt owed to the City.
   8. No payment was received and the City engaged with Oakbridge (lawyers) on 27 March 2024. The City instructed Oakbridge to issue a general procedure claim to recover the debt owed to the City.
   9. On 7 May 2024, Oakbridge commenced the City's claim, GCLM/6141/2024 in the Magistrates Court, for the outstanding 2023/2024 rates, penalty interest and recovery costs.
   10. Landgate records which she ordered on 14 November 2024, confirmed Dr Sowden to be the sole registered proprietor, since 24 August 2022.
   11. In November and December 2024, the City made settlement offers to Dr Sowden which he rejected.
   12. Ms Fletcher identified the specific tasks which Oakbridge carried out, two examples of which I set out:

(f) On 7 October 2024, $240 for drafting and preparing Form 28 pre-trial hearing request (page 11, attached);

(m) On 22 November 2024, $440 for the review of correspondence from the defendant, attending to compilation of all associated documentation and material and email to the defendant attaching associated documentation and responding to each of his queries accordingly (page 24, attached).[16]

1. Oakbridge charged the City (exclusive of GST) $254.55 on 8 May 2024 for drafting the general procedure claim and a total of $2,992.41 through to 10 March 2025, as part of ARMA's monthly invoices.
2. On 11 March 2025, the City emailed Dr Sowden to propose a further settlement.
3. On 13 March 2025, the City engaged new solicitors, MinterEllison, replacing Oakbridge, with instructions to seek to resolve the matter and, if settlement could not be achieved, to take the matter to trial (par 30). MinterEllison provided an estimate of $32,000 to $38,000 plus GST for work by its solicitors and counsel, including:

(f) preparing submissions and reviewing submissions prepared by Dr Sowden; and

1. On 27 March 2025, the City sent an updated statement to Dr Sowden setting out the 2024 rates, penalty interest and charges, and the $3,218.40 in costs incurred by Oakbridge through to 10 March 2025, totalling $7,276.18. On the same date, following the City's instructions, MinterEllison paid the $890 fee for the request for allocation of a hearing date.
2. On 4 April 2025, as instructed by the City, MinterEllison sent an offer of settlement to Dr Sowden. On 10 April 2025, Dr Sowden separately emailed the City and MinterEllison with notice that he had paid the 2024 rates but refused the City's 4 April settlement offer. The City's records confirmed receipt of $1,899.68 from Dr Sowden on 11 April 2025 for the 2024 rates.
3. On 11 April 2025, following the City's instructions, MinterEllison sent a further letter to Dr Sowden explaining that the City would no longer seek penalty interest (meaning only the City's costs remained in dispute) and making a further offer to settle the matter for $3,218.40, being the costs incurred by Oakbridge through to 10 March 2025. Dr Sowden refused this offer the same day.
4. For the purpose of the City's final claim for costs, the City would claim:

(a) $2,992.41 for legal costs and court fees incurred up to 10 March 2025; and

(b) an as yet unquantified figure for work done from 11 March 2025 through to the date of hearing.

1. During the evidence of Ms Fletcher she identified four tax invoices from MinterEllison to the City which totalled $53,694.60 and they were accepted as exhibits. Dealing with each in turn:
   1. Exhibit 2 was a disbursement of counsel's fees dated 20 May 2025 in the amount of $6,825 excluding GST[17] (the invoice of counsel referred to is dated 1 May 2025).
   2. Exhibit 3 was a tax invoice from MinterEllison dated 22 May 2025 for $31,508.60[18] for professional services and expenses of $890 being a court filing fee.
   3. Exhibit 4 was MinterEllison's tax invoice dated 30 May 2025 reflecting a disbursement for counsel fees for $6,513 (the invoice of counsel referred to is dated 1 May 2025).
   4. Exhibit 5 was a tax invoice by MinterEllison dated 30 May 2025 for professional fees for $8,848.60.
2. The City did not waive legal professional privilege in the invoices rendered by MinterEllison and counsel. For that reason the tax invoices which were tendered did not contain any description or itemisations of any work undertaken by MinterEllison or counsel. With respect to MinterEllison invoice dated 22 May 2025 which is Exhibit 3 this invoice was discounted by $6,000: professional fees were $37,508.60 reduced to $31,508.60. The tax invoice which is Exhibit 5 was also discounted by a sum of $1,500 from $10,348.60 to $8,848.60.
3. Attached to the City's written submissions for trial[19] was a schedule of costs drawn seemingly in accordance with the scale items of the Magistrates Court of Western Australia civil scales of 2022 and 2024. The written submissions said with respect to the scale bill that, although the costs were drawn in accordance with the Magistrates Court Civil Scale of Costs for ease of reference, the Court of Appeal authority in Parker showed that costs awards of this nature are not limited by the scale though they may offer guidance. The submissions concluded by stating that the City would tender evidence at trial to support the claimed costs.
4. The draft bill of costs attached to the City's submissions relevantly provided as follows:

CLAIMANT'S REASONABLE COSTS CLAIMED THROUGH TO 15 MAY 2025

Local Government Act s 6.56 and Fire and Emergency Services Act s 36Z(2)

Conferral with defendant as to his adjournment request

Response to defendant's application, documents and written submissions (including obtaining instructions)

Offer of settlement - 4 April 2025 (counsel & solicitor time) Exceeds $3,500, claim only $1,926

Offer of settlement - 11 April 2025 (counsel & solicitor time) Exceeds $3,500, claim only $1,926

g. Def affidavit 28/6/24 referred to in recent submissions

Letter from Court 7 May 2025 - preparation for hearing

Preparation of case, including taking instructions, preparing evidence, instructing counsel, advising client.

Counsel: examine brief; research law; advice on evidence

1. After the evidence of Ms Fletcher was concluded, counsel provided to the trial magistrate a document that was marked for identification (MFI) entitled 'CLAIMANT'S REASONABLE COSTS CLAIMED 16 to 30 MAY 2025'. I will set out the terms of the MFI in full:

CLAIMANT'S REASONABLE COSTS CLAIMED 16 to 30 MAY 2025

Local Government Act s 6.56 and Fire and Emergency Services Act s 36Z(2)

g. Def affidavit 28/6/24 referred to in recent submissions

Letter from Court 7 May 2025 - preparation for hearing

Preparation of case, including taking instructions, preparing evidence, instructing counsel, advising client including reading and relaying brief advice to client on defendant's complaints to complaints bodies and the Department of Local Government[20] (27 to 30 May 2025)

Counsel: preparation for trial, drafting of written submissions, conferences by phone and in person with solicitors and client, preparation of examination in chief, advice to client and proofing witness

1. What may be discerned from the City's presentation of the costs claim in advance of the trial and at the trial itself was to provide schedules by reference to the court's scale for the purposes of substantiating the City's claim. The schedule attached to the submissions, which seemingly covered work invoiced up to 15 May 2025, totalled $38,296. The work the subject of the MFI document which was work carried out and billed after 16 May 2025 but until 30 May 2025 totalled $15,048. The total of the costs in the two tables was $53,344 being the amount that the magistrate awarded in her final decision.
2. When one considers Exhibits 2, 3, 4 and 5, the total sum invoiced by MinterEllison and counsel inclusive of disbursements but excluding GST was $53,694.60. When the sum of $2,992.41 invoiced by Oakbridge is added, the total costs incurred were $56,687.01. Item 1 of the MFI, which describes both a 'response to applications' and 'preparing claimant response documents', suggests, at face value, that those descriptions cover the same work and that there may be duplication. This was not the subject of any evidence.
3. Further, as highlighted in item 2 of the MFI schedule, there is a component of costs in the $7,015 claimed for advising client including reading and relaying brief advice to client on defendant's complaints to complaint bodies and the Department of Local Government.

1. On 12 June 2025 her Honour gave oral reasons for decision entering judgment for the City against Dr Sowden in the sum of $53,344 being its costs of the proceedings.
2. The trial magistrate, in her reasons for decision, made the following observations:
   1. Dr Sowden had been the registered proprietor of the property since 24 August 2022, and that the rates notice for $1,899.68 was issued on 20 July 2023 for the 2023/2024 rating period. Dr Sowden paid these rates on 11 April 2025, after which the City sought recovery of its costs as a statutory debt.[21]
   2. Dr Sowden's defence (and contentions at trial) had no legal basis, specifically his contention that the 2024 rates should be credited because he had paid 100% of the rates in previous years when he co-owned the property. Her Honour noted that s 6.44 of the LGA provides that co-owners are jointly and severally liable, and that historical payments had no relevance.[22]
   3. Dr Sowden's voluminous form 32A witness statement and submissions failed to address the only issue in dispute: the costs of the recovery proceedings.
   4. The City had engaged two law firms: Oakbridge ($2,992.41 excluding GST) and MinterEllison (instructed 13 March 2025).
3. Her Honour assessed two scale items where MinterEllison's costs exceeded the scale:
   1. Item 10 (form 23 response): The amount claimed ($6,685.68) exceeded the scale ($3,872) by $2,813.38. Her Honour found that given the large bundle of documents served by Dr Sowden, the excess work was 'both reasonably required ... and reasonable in amount'.[23]
   2. Item 13 (trial preparation): The amount claimed ($29,598.74) exceeded the scale ($24,200) by $5,389.74. Her Honour noted that Dr Sowden's form 32A, lodged on the evening of trial, 'was 249 pages and no charge was made by the City's solicitors in relation to considering that document'.[24]
4. Her Honour's central finding was:[25]

I am persuaded on the balance of probabilities by the City ... that the costs incurred by the City were actually incurred by it, and the costs claimed were both reasonably incurred and reasonable in amount, as per Parker v City of Rockingham.

1. As to Dr Sowden's contention that the costs were 'manifestly excessive, unreasonable and not proportionate' and that '$53,344 is in no way commensurate with the nature of this matter'[26] her Honour rejected these objections, making the following findings:
   1. Dr Sowden 'does not accept any responsibility for the costs of trial preparation increasing from 11 April as a result of his various emails, correspondence and his application to court'.[27]
   2. Dr Sowden's claimed inability to pay 'is not a defence to the payment of rates and the costs of recovery'.[28]
   3. While the City claimed $8,203.12 in excess of scale for MinterEllison's work, 'Oakbridge ... claimed in the order of many thousands of dollars ... less than the scale amounts'.[29]
2. Her Honour concluded:[30]

Considering all of the evidence in total ... I assess that the costs incurred and claimed by the City ... are both reasonable in amount and for work reasonably incurred in the context of this particular case, especially the manner in which Dr Sowden has conducted his defence.

1. Her Honour consequently ordered judgment for the City in the sum of $53,344, comprising $38,296 (annexure A to the submissions) and $15,048 (aide memoire/MFI).

1. By s 40 of the Magistrates Court (Civil Proceedings) Act 2004 (WA), an appeal may be commenced from any final order of the Magistrates Court within 21 days after the date of judgment. The District Court must decide the appeal on the materials and evidence that were before the Magistrates Court, and on any other evidence it gives leave to admit.
2. The appeal is by way of rehearing. The appellant must therefore demonstrate error in the court below. The District Court's appellate powers are only exercisable if the appellant demonstrates that the magistrate's decision was the result of legal, factual, or discretionary error.[31]

1. By his notice of appeal, Dr Sowden, advances four grounds of appeal which, in turn, have many sub-grounds to them. The appeal grounds are lengthy and prolix in their terms. Grounds 1, 2.2, 2.5 and 3 raise matters including allegations of domestic violence and economic abuse by his former spouse, abuses of process, procedural unfairness and evidentiary objections. These grounds do not address the central issue, the assessment of the City's reasonable costs, and lack merit. I will not consider them further. Ground 2.4, which is considered below, raises the question of whether the trial magistrate erred in the legal framework applied to the assessment of the City's costs, and is the ground of substance.

1. In my view, determining whether costs were reasonably incurred and reasonable in amount requires consideration of the factors I have identified in [23] above. The enquiry must take place in a context that the City bears the onus of establishing, on the balance of probabilities, that the costs awarded for the recovery proceedings satisfy that standard. In this case, no evidence was led of the individual tasks performed by MinterEllison or counsel, who performed those tasks and what was charged for them. This may be contrasted with the position of the work undertaken by Oakbridge.
2. In my view, the use by the City of the scale maximum allowances and the draft bills attached to its submissions was of limited utility. There was no real dispute about the underlying debt, and in the absence of supporting evidence or analysis of how time was expended, whether by reference to hourly rates or some other methodology, it is difficult to be satisfied that the amount claimed was reasonable in amount.
3. In certain cases, the court may be able to distil from its own experience how a charge is calculated, and an amount is reasonable. For example, the information provided as to the services performed by Oakbridge and the amount charged for those services seems to be capable of an assessment of whether the costs were reasonably incurred or reasonable in amount.
4. In my view, the submission made to the trial magistrate that the scale maxima, which allowed 50 hours at a senior practitioner rate, was reflective of a reasonable amount for the work actually carried out by MinterEllison from its engagement in March 2025 until 30 May 2025 was misplaced. To the extent that the trial magistrate accepted that submission, I consider that an error arose.
5. There was, in my view, an insufficient evidentiary foundation to enable any meaningful assessment of the City's costs without details of the work actually undertaken being provided.
6. Although the trial magistrate concluded, after considering all of the available evidence, that the costs claimed by the City were both reasonably incurred and reasonable in amount, especially by taking into account the manner in which Dr Sowden had conducted his defence, I consider that the assessment was not undertaken by reference to the applicable legal principles. While resort to the scale determination is one method for evaluating reasonable costs, any evaluation must consider the issues in dispute at trial and the work a legal practitioner necessarily had to perform to deal with those issues.
7. In my view, the trial magistrate concluded that the costs invoiced by MinterEllison and counsel were reasonably incurred and reasonable in amount without undertaking the requisite evaluation. By requisite evaluation I refer to the fact that no enquiry was made into:
   1. Which practitioners performed the work charged to the City, and the hourly rate that each practitioner charged.
   2. The precise work undertaken and the number of hours spent on that work by reference to the practitioners who performed it.
   3. Whether any duplication occurred between practitioners who performed the work for which the City was charged.
   4. Whether there was overlap between the preparation of the case for trial and other items in the draft bill including the responses to the applications made by Dr Sowden.
   5. The extent to which any of the claimed costs related to matters extraneous to the recovery proceedings. In this respect, the material provided in the MFI document which I have highlighted at [35] above makes clear that some charges rendered to the City related to advice concerning complaints made by Dr Sowden to the Department of Local Government, which could not properly be characterised as costs reasonably incurred in the recovery proceedings.
8. Taking together:

(c) the fact that after 11 April 2025 the sole issue for determination was the quantification of the City's costs;

(d) the qualitative nature of Ms Fletcher's evidence including her lack of direct knowledge of what legal services were performed after March 2025 or the associated charges, and the absence of any evidence addressing those matters;

(e) the absence of evidence addressing the nature of the work performed, which practitioners performed the work, the hourly rates at which each practitioner charged and the number of hours spent on that work, by reference to the practitioners who performed it; and

(f) the apparent duplications in the draft bill and schedule together with the inclusion of descriptions of costs which, on their face, related to legal services extraneous to and not forming part of the recovery proceedings;

I find that the trial magistrate made an error in concluding that the costs ultimately awarded were reasonably incurred and reasonable in amount.

1. In all the circumstances I consider that the appeal should be allowed.

1. The submission made on behalf of the City at the hearing of the appeal was that if the appeal were to be upheld, the matter should be remitted to the Magistrates Court for determination. I accept that submission. In my view, evidence will need to be led of the manner in which the costs claimed as the reasonable costs of the recovery proceedings were incurred and how they were calculated. In the circumstances, my view is that there will have to be a new trial. In these circumstances I make the following orders:
   1. Allow the appeal.
   2. Set aside the orders made by the trial magistrate.
   3. Order a new trial before a different magistrate.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

[1] See Parker v City of Rockingham [2021] WASCA 120 [108] (Parker).

[2] A near identical provision with levies exists under s 36Z(2) of the FESA.

[5] Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403, 415 (Mason CJ, Brennan, Deane, Dawson & McHugh JJ).

[6] Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2014] NSWCA 99 [36].

[7] See generally Zuckerman A, Australian Civil Procedure (2nd ed, 2024) pars 28.105 - 28.106 (Zuckerman).

[10] W & A Gilbey Ltd v Continental Liqueurs Pty Ltd [1964] NSWR 527, 534 - 535. This case was cited with approval in City of Belmont v Saldanha [No 2] [2018] WASC 278 (Vaughan J as his Honour then was).

[11] Gallagher v CSR Ltd (Unreported, WASC, Library No 940165, 31 March 1994) (Ipp J).

[12] See Magistrates Court (Civil Proceedings) Rules 2005 (WA), r 81 - r 84.

[13] Self-evidently the more difficult or complex the dispute, the more reasonable it is that a more experienced, senior practitioner would be retained, and their costs allowed.

[14] I do not intend for this list to be exhaustive or a code for considering whether costs are reasonably incurred or reasonable in amount.

[15] See trial transcript hearing, 4 June 2025 (trial ts) 14 - 15. The witness statement of Ms Fletcher was accepted as Exhibit 1.

[16] Specifically for each subset of tasks a description of the tasks performed and the amount charged was the subject of evidence. Further, by reference to that description and the attached information it is possible for a judicial officer, using his or her own experience, to determine whether the work was reasonably carried out and whether the amount charged was reasonable. As I will refer to, I have no difficulty accepting the entirety of Oakbridge's costs as being reasonably incurred and reasonable in amount.

[17] The City's case before the magistrate was that because the City could claim input tax credits for the payment of its legal fees it was appropriate that it only recover GST exclusive figures (trial ts 19). Accordingly, I will only refer to GST exclusive figures with respect to the City's claim.

[18] Which included a discount of $6,000, the professional services plus GST being charged at $37,508.60.

[21] Magistrates Court transcript hearing, 12 June 2025 (MC ts) 3.

[31] See for example Brocklehurst v Wolinski [2015] WADC 36 [11] - [15].