An Analysis of Sowden v City of Stirling [2026] WADC 31
1. Introduction
The decision of Curwood DCJ in Sowden v City of Stirling [2026] WADC 31, delivered on 14 April 2026, is a significant appellate statement on the evidentiary requirements that a local government must satisfy to recover its legal costs from a ratepayer under s 6.56(1) of the Local Government Act 1995 (WA) (LGA). The appeal was brought by an unrepresented ratepayer, Dr Miles Sowden, against an award of $53,344 in legal costs made by the Perth Magistrates Court in proceedings in which the underlying debt in dispute was $1,899.68 in unpaid rates for the 2023/2024 financial year.
The decision is important for three audiences. First, it directs local governments — and the law practices that act for them in rate recovery work — to a rigorous, itemised evidentiary standard that must be met before costs on the scale awarded by the trial magistrate can be recovered. Second, it equips ratepayers and their advisers with a clear framework for challenging what they contend are excessive legal costs. Third, for civil litigators generally, the judgment is a useful restatement of first principles governing the assessment of reasonable costs, including proportionality, the indemnity rule, and the evidential dependency on itemised billing information.
The jurisdiction is Western Australia. The areas of practice affected are local government law, civil debt recovery in the Magistrates Court, and costs assessment. The decision warrants attention beyond the immediate parties because s 6.56 recoveries — and the cognate levy recovery under s 36Z(2) of the Fire and Emergency Services Act 1998 (WA) (FESA) — are run in substantial numbers each year by every local government in the State. The judgment exposes, and then cures, a systemic evidentiary shortcut that has until now been widely tolerated: the practice of using scale maxima or privileged tax invoices as proxies for proof of reasonable costs.
2. Relevant Legal Framework
2.1 The statutory right of recovery
Section 6.56(1) of the LGA provides that where 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, in a court of competent jurisdiction. A near-identical provision applies to Emergency Services Levy recoveries under s 36Z(2) of the FESA. Curwood DCJ uses the collective term "rates" to cover all three charges (at [9]–[10]).
The text of s 6.56(1) does not expressly qualify "the costs of proceedings" by a reasonableness requirement. That qualification was supplied by the Court of Appeal in Parker v City of Rockingham [2021] WASCA 120, where the Court construed the provision as permitting a local government to recover its legal costs only to the extent that it proves them to have been reasonably incurred and reasonable in amount (at [108]). Parker also confirms that the legal burden of proving reasonableness rests on the local government; there is no evidential onus on the ratepayer defendant to demonstrate unreasonableness (at [123]).
2.2 First principles of costs recovery
Curwood DCJ situates s 6.56(1) within the broader common law of costs. The starting position, derived from Cachia v Hanes (1994) 179 CLR 403, is that a costs award is a partial indemnity only — a compromise between no provision for costs and full recompense (at 415). In Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2014] NSWCA 99 the Court of Appeal of New South Wales confirmed that the purpose of a costs award is not to compensate the successful party in full, but only to enable the recovery of costs strictly necessary, proper or reasonable for the disposal of the litigation (at [36]).
Three further principles inform the concept of reasonableness. The "sensible solicitor" test in W & A Gilbey Ltd v Continental Liqueurs Pty Ltd [1964] NSWR 527, 534–535 — cited with approval in City of Belmont v Saldanha [No 2] [2018] WASC 278 (Vaughan J) — asks whether the item was proper in the sense of what "a sensible solicitor sitting in his chair ... considers reasonable in the interests of his lay client". Gallagher v CSR Ltd (Unreported, WASC, Library No 940165, 31 March 1994) (Ipp J) introduces proportionality: the costs claimed must bear a reasonable relationship to the value of the subject matter. And the general party/party learning, summarised at [14] by reference to Zuckerman's Australian Civil Procedure (2nd ed, 2024) at pars 28.105–28.106, is that any doubt or uncertainty is resolved in favour of the paying party.
2.3 The state of the law before Sowden
Before Sowden, Parker had established the reasonableness requirement and the onus on the local government. What was left under-developed was the operational question: what, as a matter of evidence, must the local government actually lead at trial? Practice across the State had developed inconsistently. Some recoveries were run on the back of scale bills drafted by reference to the Magistrates Court Civil Scale; others on tendered tax invoices from which confidentiality or privilege prevented itemisation; others on generic witness evidence from a council officer who had no personal knowledge of the work performed. Sowden now supplies the missing operational content.
3. The Facts of the Case
3.1 The underlying debt
Dr Sowden was the sole registered proprietor of a residential property in Scarborough from 24 August 2022 (at [24], [30.2]). On 20 July 2023 the City of Stirling issued an annual rates notice for the 2023/2024 financial year in the sum of $1,899.68 (at [24], [30.4]). The rates were not paid. After internal escalation to the City's contracted debt collectors, ARMA, and a letter of demand dated 5 December 2023, the City's position was disputed by Dr Sowden, who asserted an entitlement to credit for historical payments (at [30.5]–[30.6]).
3.2 The Oakbridge phase
On 27 March 2024 the City engaged Oakbridge (lawyers), who commenced the City's general procedure claim on 7 May 2024 (at [30.8]–[30.9]). Oakbridge's total charges through to 10 March 2025 came to $2,992.41 exclusive of GST (at [30.13], [37]). As his Honour observed at [51], the Oakbridge evidence identified each specific task, the date it was performed, and the amount charged for it. Curwood DCJ accepted the entirety of the Oakbridge costs as reasonably incurred and reasonable in amount (at fn 16).
3.3 The MinterEllison phase
On 13 March 2025 the City replaced Oakbridge with MinterEllison (at [30.15]). MinterEllison provided an estimate of $32,000 to $38,000 plus GST for work including a without-prejudice settlement offer, briefing counsel, preparing and reviewing witness statements, preparing and reviewing submissions, and preparing for and attending the hearing (at [30.15]).
On 11 April 2025 — more than seven weeks before the trial — Dr Sowden paid the outstanding rates of $1,899.68 (at [2], [26]). On the same day MinterEllison wrote confirming the City would no longer seek penalty interest, and offering to settle for $3,218.40, being Oakbridge's charges through to 10 March 2025. Dr Sowden refused that offer (at [30.18]). From that point, the only issue remaining in the proceedings was the quantum of the City's reasonable costs (at [2]).
3.4 The trial evidence
At trial on 4 June 2025, the City's sole witness was Ms Chloe Fletcher, its Service Lead Rates and Receivables (at [30]). Her witness statement described the rates history and listed Oakbridge's itemised charges, but she had no personal knowledge of the work performed by MinterEllison or counsel after March 2025 (at [56(d)]).
Four MinterEllison tax invoices totalling $53,694.60 (exclusive of GST) were tendered as Exhibits 2 to 5 (at [31]). Because the City had not waived legal professional privilege in those invoices, they contained no itemisation of the work performed (at [32]). Two of the MinterEllison invoices contained ad-hoc "discounts" ($6,000 and $1,500) unexplained in evidence. The City supplemented the invoices with two scale-based schedules: an Annexure A to its submissions totalling $38,296 (work to 15 May 2025) and an MFI tendered at the hearing totalling $15,048 (work from 16 to 30 May 2025) (at [34]–[36]).
3.5 The magistrate's decision
The trial magistrate entered judgment for the City in the aggregate sum of $53,344, being the sum of the two schedules (at [3], [45]). Her Honour found that the City's engagement of two law firms was proper, that the excess over scale on two items was justified, and concluded that "the costs claimed were both reasonably incurred and reasonable in amount, as per Parker v City of Rockingham" (at [42]). Her Honour expressly rejected Dr Sowden's proportionality objection, noting that 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" (at [43.1]).
4. Analysis of the Court's Reasoning
4.1 The two errors identified
Curwood DCJ identified two errors in the magistrate's approach. The first was that the award permitted recovery of costs for legal services which, in part, were unrelated to the recovery proceedings (at [6], [55.5]). His Honour pointed in particular to item 2 of the MFI schedule, which included $7,015 for "advising client including reading and relaying brief advice to client on defendant's complaints to complaints bodies and the Department of Local Government" — work which, on its face, was not costs of the rate recovery proceedings (at [38], [55.5]).
The second and broader error was the absence of any evidentiary foundation for assessing reasonableness. His Honour noted at [7] that the trial record contained no evidence of: (a) the hourly rates charged; (b) the practitioners who performed the work; (c) the nature of the composite tasks beyond general descriptions; or (d) whether any consideration had been given to duplication. In circumstances where the only issue at trial was the quantification of the City's costs, those omissions were fatal.
4.2 The assessment methodology — the seven factors
At [23], Curwood DCJ set out a non-exhaustive list of seven factors relevant to the assessment of reasonable costs under s 6.56. They are:
(a) the complexity of the factual and legal issues raised in the recovery proceedings;
(b) the work reasonably required by reference to those issues;
(c) the seniority and expertise of the practitioners engaged, including whether their fees were reasonable by reference to benchmark rates in any applicable scale determination;
(d) the number of hours reasonably required for the work that had to be carried out;
(e) duplication between practitioners where multiple practitioners performed tasks;
(f) proportionality — whether the costs bear a reasonable relationship to the value of the matter in dispute, read with the statutory purpose of s 6.56; and
(g) comparison of the amount charged with any applicable scale of costs.
Factor (c) imports the Zuckerman principle (par 28.135) that the reasonableness of engaging a particular practitioner is a function of the complexity and importance of the issues. The more complex the dispute, the more reasonable it is to engage a senior practitioner. The corollary — unspoken but essential — is that where the dispute is narrow and limited, engaging senior practitioners at top-of-market rates may itself be an error that renders the costs unreasonable in amount.
4.3 The privilege problem
His Honour offered a pragmatic path through the tension between legal professional privilege and the evidentiary burden. At [22] he identified three acceptable approaches. First, the local government may tender itemised invoices from its law practice. Second, where confidentiality or privilege prevents itemisation, it may tender a schedule outlining the work performed, the practitioner or paralegal who completed each discrete task, the time taken, and the hourly rate charged. Third, if the engagement was on a fixed-fee basis, that basis must be identified and proved.
What will not suffice is what the City put forward in Sowden: unitemised privileged invoices supplemented by a scale bill. A scale bill is a calculation construct, not primary evidence of time actually spent; it cannot bear the evidentiary weight that the City sought to place on it. As Curwood DCJ observed at [50], "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".
4.4 The role of the Magistrates Court scale
The City had argued before the magistrate that the scale was not a cap, but that the scale maxima (allowing 50 hours at a senior practitioner rate on item 13) were reflective of reasonable amounts for the work in fact performed by MinterEllison between March and May 2025. Curwood DCJ held that to be "misplaced", and to the extent the magistrate accepted the submission, an error arose (at [52]). The scale is one comparator and one input into the assessment (factor (g) at [23]); it cannot substitute for evidence of the work actually undertaken.
5. Assessing the Consequences
The immediate consequence for the parties is a new trial before a different magistrate (at [58]). The City will have to elect: either waive privilege over the MinterEllison and counsel invoices, or prepare a non-privileged schedule of work conforming to [22]. Either course will require a level of preparation and disclosure that substantially exceeds what was done first time around.
The wider consequence is a shift in the economics of rate recovery litigation. The arithmetic is worth stating plainly. The underlying debt was $1,899.68. Oakbridge's costs to 10 March 2025 were $2,992.41. MinterEllison and counsel charged a further $53,694.60 between March and May 2025. Adding Oakbridge, total legal costs were $56,687.01 against a claim of $1,899.68 — a ratio of approximately 30:1. Against that background, the proportionality factor at [23(f)] cannot be dismissed as a mere "sense-check"; it assumes real analytical weight.
Two quantification points follow. The first is that costs will, in most ordinary rate recovery matters, be assessed by reference to time actually spent at reasonable hourly rates, with an overlay of proportionality. His Honour's emphasis on itemised time at [15]–[19] effectively recasts the s 6.56 assessment as a quasi-taxation exercise — informal in procedure but rigorous in content. The second is that unexplained discounts on tax invoices (as occurred here: $6,000 and $1,500) will not assist the local government. A discount is not evidence of reasonableness; it is merely evidence of billing practice. The court cannot tell, without underlying timesheet data, whether the discounted sum remains excessive.
6. Worked Example
Consider the following hypothetical. The Shire of Mondura issues a 2025/2026 rates notice to a ratepayer, Ms Tran, for $2,450. After a letter of demand and a refusal to pay, the Shire's solicitors commence a general procedure claim in the Magistrates Court. Ms Tran files a defence disputing her liability on the basis that she says the property is in her late father's estate. The claim is defended. On the morning of trial Ms Tran pays the rates. The only issue at trial is the quantification of the Shire's costs, which its solicitors claim at $18,500 — being 37 hours at a blended partner/associate rate of $500.
Applying the Sowden framework
Complexity (factor (a)). The only legal issue was the statutory charging effect of s 6.44 LGA and the status of the property in the estate. Modest complexity.
Work reasonably required (factor (b)). A short pleading, a short witness statement from the rates officer, correspondence, and short submissions. The hours reasonably required would ordinarily be in the order of 10–15, not 37.
Seniority (factor (c)). It is not reasonable for a partner to conduct the bulk of the work. On the Zuckerman principle adopted at [15], a junior solicitor of 2–4 years PAE is the appropriate level of resourcing.
Hours (factor (d)) and duplication (factor (e)). The Shire's schedule should demonstrate, for each task, who performed it and for how long. Where two practitioners attended the same conference, duplication must be justified.
Proportionality (factor (f)). Costs of $18,500 against a debt of $2,450 is a ratio of roughly 7.5:1. While s 6.56 recoveries frequently carry unusual ratios because of the ratepayer's conduct, the ratio invites close scrutiny.
Scale comparison (factor (g)). The Magistrates Court scale, as guidance, would yield substantially less than $18,500 for a matter of this character.
A magistrate applying Sowden would likely reduce the allowance materially — perhaps to the order of $8,000 to $10,000 — unless the Shire adduced itemised evidence of work done and applicable rates, and unless it could demonstrate on a fine-grained basis that the more senior resourcing was justified on complexity or time-critical grounds.
7. Practitioner Guidance: A Step-by-Step Framework
Step 1: Identify the recovery proceedings narrowly
Before costs are drawn, identify the work that is properly referable to the recovery proceedings, and quarantine work that is not. In Sowden, the inclusion of work on the ratepayer's complaints to complaint bodies and the Department of Local Government was fatal (at [55.5]). Regulatory complaints, media responses, and parallel political matters are not within s 6.56(1).
Step 2: Resource proportionately at the outset
Match the seniority of the team to the complexity of the matter, applying Zuckerman at par 28.135 as adopted at [15]. A simple debt recovery matter should be run by a junior solicitor with limited partner oversight. Over-resourcing at the outset is almost impossible to rectify at the assessment stage.
Step 3: Keep contemporaneous itemised time records
From the first attendance, ensure every time entry identifies the fee earner, the date, the task performed, and the units of time recorded. These records are the baseline contemplated by his Honour at [19]: "The information of what work was performed by whom and at what rate is a critical baseline".
Step 4: Decide early on the privilege position
Decide at the outset whether, in the event of a contested costs claim, the client will waive privilege over invoices. If not, plan to adduce a schedule in the form contemplated in Sowden at [22]: practitioner, task, time, hourly rate. Leaving this decision to the eve of trial invites the Sowden outcome.
Step 5: Prepare the evidence in an admissible form
The deponent of the City's evidence in Sowden had no direct knowledge of the legal work. The better practice is for evidence of the legal work to be given by an appropriate person — the instructing solicitor or a costs consultant — who can speak to the tasks performed, the fee earners, and the rates.
Step 6: Address each of the seven factors in submissions
Written submissions should work through the factors at [23] one by one. Complexity; work required; seniority; hours; duplication; proportionality; scale comparison. A submission that does not address each of these is vulnerable on appeal.
Step 7: Address proportionality squarely
Proportionality will often be the sharpest point against a substantial costs claim in a low-value debt recovery. The local government should confront it, not avoid it. Where the ratio is high, identify the specific conduct of the ratepayer that drove the costs up — voluminous applications, late documents, late adjournment applications — and tie the incremental costs to that conduct. This is effectively the approach the magistrate attempted in Sowden, but without the evidentiary base required to sustain it.
8. Evidence and Arguments Available to Each Side
8.1 For the local government
The local government should marshal the following categories of evidence:
(a) Itemised time records from each law practice retained, broken down by fee earner, date and task, with unit times and rates. Where privilege is maintained over the invoices themselves, a schedule in the form contemplated at [22] should be prepared.
(b) Rate reasonableness evidence — confirmation of the hourly rates, comparison with Legal Costs Committee scale determinations, and, where appropriate, expert costs evidence.
(c) Causal evidence — correspondence, applications, filings, and transcripts that demonstrate the ratepayer's conduct drove the incurrence of specific cost items. His Honour acknowledged at [43.1] that a ratepayer's conduct may be relevant, provided the link is proved.
(d) Scale comparison — a bill drawn by reference to the Magistrates Court Civil Scale as a cross-check, not as a substitute for primary evidence.
8.2 For the ratepayer
A ratepayer resisting a claim for costs under s 6.56 has the following points to deploy:
(a) Onus. Rely on Parker at [123] and Sowden at [12] — the local government carries the legal burden; there is no evidential onus on the ratepayer.
(b) Absence of itemisation. Where invoices are tendered without itemisation, object on the basis that the evidence does not permit an assessment of reasonableness (Sowden at [50]).
(c) Duplication. Cross-examine on overlap between fee earners, and between composite tasks such as "response to applications" and "preparing response documents" (Sowden at [37]).
(d) Extraneous work. Identify any items that relate to matters outside the recovery proceedings — regulatory complaints, media, political responses — and press for their exclusion (Sowden at [38], [55.5]).
(e) Proportionality. Rely on Gallagher v CSR Ltd and the ratio of costs to debt. The more extreme the ratio, the more detailed the justification required.
(f) Over-resourcing. Where partners or Senior Counsel have been deployed on straightforward issues, invoke factor (c) at [23] and Zuckerman par 28.135 to argue that the engagement was not reasonable.
(g) Doubt resolved in favour of paying party. Relying on [14], any doubt about the reasonableness or necessity of a claimed cost is resolved in the paying party's favour.
9. Key Takeaways for Legal Practice
1. Section 6.56(1) now has a detailed evidentiary content. The combination of Parker and Sowden means that a local government cannot prove its reasonable costs by tendering unitemised tax invoices and a scale bill. Primary evidence of work performed, by whom, for how long, and at what rate, is now required.
2. Privilege is not a shield against the evidentiary burden. If privilege is maintained over invoices, the local government must substitute a non-privileged schedule giving the same itemisation (at [22]).
3. The scale is guidance, not proof. Reliance on the Magistrates Court Civil Scale as a substitute for evidence of time actually spent was rejected at [50]–[52].
4. Discounts on invoices carry no evidentiary weight. The $6,000 and $1,500 "discounts" on the MinterEllison invoices were not treated by Curwood DCJ as a cure-all. A discounted invoice without time records does not enable the court to test whether the discounted figure is itself reasonable.
5. Extraneous work must be quarantined. Charges for advice on regulatory complaints, media, or parallel political matters are not costs of the recovery proceedings and cannot be recovered under s 6.56 (at [55.5]).
6. Proportionality has teeth. A ratio of roughly 30:1 between legal costs and the underlying debt — as here — invites intense scrutiny. The local government must tie any unusual ratio to specific conduct of the ratepayer, with evidence.
7. The evidence should be given by someone who knows. A rates officer cannot usefully prove the work of external lawyers. The deponent should be the instructing solicitor or a costs consultant.
8. Over-resourcing is a live objection. A modest debt recovery is not generally a matter that justifies instruction of a tier-1 firm leading a senior counsel. The Zuckerman principle adopted at [15] cuts both ways: less complex matters should be resourced less seniorly.
9. Section 36Z(2) FESA is now read the same way. Curwood DCJ's treatment of the LGA provision applies equally to levy recoveries under the near-identical FESA provision (see fn 2).
10. Systemic implications. Rate recoveries are a volume practice for local governments. The decision will require many councils to revisit their standing instructions, their retainers with external lawyers, and their costs-evidence templates. The cost of non-compliance is not merely a reduced award — it is a new trial and an appellate costs order on top.
10. Conclusion
Sowden v City of Stirling closes a significant gap in the law of rate recovery costs in Western Australia. Parker told local governments that the costs they recover under s 6.56 must be reasonable. Sowden now tells them — and their lawyers — exactly what must be proved, and how. Itemised time. Named practitioners. Identifiable rates. No duplication. No extraneous matter. And, always, proportionality.
For ratepayer defendants, the decision provides a structured set of objections and a clear allocation of onus. For local governments and the firms that act for them, it is a practical prompt to reform files, retainers, and evidence kits. And for the civil litigator, the judgment is a useful restatement of first principles — Cachia, Zepinic, Gilbey, Gallagher — pulled together into a workable, seven-factor framework that will have application well beyond the confines of the LGA.
The core practical message is straightforward. In this area of practice, costs will no longer be awarded on the basis of scale bills and unitemised invoices. Proof of reasonableness requires evidence, and evidence requires discipline at the outset of every matter.