COMMON LAW
Fees (Disbursements)
There are court filing fees in the Perth District Court for an injured worker to make a common law in negligence against their employer. From 1 July 2025, the fees are as follows:
Filing Writ - $1,306 or $100 with a Healthcare card
Entry for Trial - $1,306 or $100 with a Healthcare card - this fee allows the plaintiff to have a pre-trial conference at the Perth District Court where the defendant will make its best settlement offer. Most plaintiffs will accept the best offer. Daily Hearing Fee - $1,146 per day or $100 per day with a Healthcare card - a trial often goes for a least 5 days, so the hearing fee is $5,730.
Filing Writ - $1,306 or $100 with a Healthcare card
Entry for Trial - $1,306 or $100 with a Healthcare card - this fee allows the plaintiff to have a pre-trial conference at the Perth District Court where the defendant will make its best settlement offer. Most plaintiffs will accept the best offer. Daily Hearing Fee - $1,146 per day or $100 per day with a Healthcare card - a trial often goes for a least 5 days, so the hearing fee is $5,730.
All experts, including doctors, will have to attend the trial. The worker must pay the expert attendance fee, who often charge around $500 per hour. The expert is often in court for 2 to 4 hours, making their attendance fee around $1,000 to $2,000.
Often a worker will require 4 experts, such as an ergonomist, a permanent impairment assessor, a treating specialist, and a treating GP. Each one of their reports will cost $2.000 to $3,000, although the treating GP is often much less expensive.
Often a worker will require 4 experts, such as an ergonomist, a permanent impairment assessor, a treating specialist, and a treating GP. Each one of their reports will cost $2.000 to $3,000, although the treating GP is often much less expensive.
A worker is looking at around a total of $10,000 to $20,000 for experts to attend the trial to give evidence.
Legal Costs
The legal costs for a common law claim are significant.
Pre-Trial Legal Costs
The legal costs to settle a claim at or before a pre-trial conference are typically in the range of $40,000 to $60,000, depending on the complexity and volume of the evidence, and include:
Item 1(a): Writ - $858
Item 1(c): Statement of claim - $6,864
Item 7(b): Discovery (of evidence) - $418 per hour, but typically around 10 hours, so $4,180
Item 1(c): Statement of claim - $6,864
Item 7(b): Discovery (of evidence) - $418 per hour, but typically around 10 hours, so $4,180
Item 8: Inspection (of evidence) - $418 per hour, but typically around 10 hours, so $4,180
Item 18(b): Particulars of damage - $6,864
Item 18(a): Advising on documents filed - $1,144
Item 18(c): Barrister advice on evidence - $528 per hour or $781 per hour if senior counsel - Barrister advice is typically $3,000 to $5,000 for a pre-trial conference. Item 19: Preparation of case, including preparation before filing a writ - up to $74,360, but typically around $15,000 before filing a writ and around $15,000 from the filing of a writ to a pre-trial conference
Item 27: Pre-trial conference - $572 per hour for a senior practitioner, $528 per hour for a barrister, or $781 per hour for senior counsel. A pre-trial conference is typically around 2 hours with a senior practitioner and a barrister giving a total of around $2,200
Many law firms will not expect up-front money from their clients for pre-trial legal costs if they believe that, after assessing the evidence, that the client has a common law claim that could be settled at a pre-trial conference.
Item 18(b): Particulars of damage - $6,864
Item 18(a): Advising on documents filed - $1,144
Item 18(c): Barrister advice on evidence - $528 per hour or $781 per hour if senior counsel - Barrister advice is typically $3,000 to $5,000 for a pre-trial conference. Item 19: Preparation of case, including preparation before filing a writ - up to $74,360, but typically around $15,000 before filing a writ and around $15,000 from the filing of a writ to a pre-trial conference
Item 27: Pre-trial conference - $572 per hour for a senior practitioner, $528 per hour for a barrister, or $781 per hour for senior counsel. A pre-trial conference is typically around 2 hours with a senior practitioner and a barrister giving a total of around $2,200
Many law firms will not expect up-front money from their clients for pre-trial legal costs if they believe that, after assessing the evidence, that the client has a common law claim that could be settled at a pre-trial conference.
Trial Legal Costs
The legal costs to go to a trial are often an additional $50,000 to $200,000, to the pre-trial legal costs. If the plaintiff's case is dismissed, the plaintiff will have to pay the defendant's legal costs which are likely to be $200,000 to $300,000.
A barrister is often required for a trial, but very few barristers will provide their services on a NO-WIN NO-FEE* basis. Some barristers may agree to defer the payment of their fee if their fee is secured by your home or another real estate property.
The cost scale provides for the following counsel fees for trial:
Item 22(a) - Fee on brief - 3.5 days preparation and 1st day of trial - $23,760
Item 22(c) - Each successive day of hearing - $5,280
Item 22(g) - Written closing submissions - a reasonable amount - but at least $5,280
So, for a 5-day trial, counsel fees are at least $50,160.
A barrister is often required for a trial, but very few barristers will provide their services on a NO-WIN NO-FEE* basis. Some barristers may agree to defer the payment of their fee if their fee is secured by your home or another real estate property.
The cost scale provides for the following counsel fees for trial:
Item 22(a) - Fee on brief - 3.5 days preparation and 1st day of trial - $23,760
Item 22(c) - Each successive day of hearing - $5,280
Item 22(g) - Written closing submissions - a reasonable amount - but at least $5,280
So, for a 5-day trial, counsel fees are at least $50,160.
Significant Trial Risks
Plaintiff workers who go to trial often come off second best. Even if the plaintiff gets judgment in their favour, that's not the end of the story. If the plaintiff does not get a judgment that is better than the defendant's best offer, the plaintiff has to pay for the costs of the trial.
For example, if the defendant made its best offer of $800,000 at the pre-trial conference, but plaintiff wanted $1,000,000 and so went to trial instead. But the judge only awarded the plaintiff $700,000, the plaintiff would have to pay for the total cost of the trial because he or she should have accepted the employer's best offer of $800,000.
Say the plaintiff's trial costs were $150,000 and the defendant's trial costs were $150,000. Even though the counsel fee for trial is around $50,000, the defendant will also have several solicitors and experts behind the scenes billing for their services. The defendant would only have to pay the plaintiff $700,000 - $150,000 = $550,000. Then the plaintiff would have to pay his or her own trial costs from that leaving him or her with $400,000. The plaintiff would also not be reimbursed with his or her court hearing fees or attendance fees for witnesses. That could be another $10,000 to $20,000.
But, the defendant would have to pay the plaintiff's legal costs and disbursements up until it made its best offer.
When a defendant makes its best offer, the plaintiff should take it seriously.
For example, if the defendant made its best offer of $800,000 at the pre-trial conference, but plaintiff wanted $1,000,000 and so went to trial instead. But the judge only awarded the plaintiff $700,000, the plaintiff would have to pay for the total cost of the trial because he or she should have accepted the employer's best offer of $800,000.
Say the plaintiff's trial costs were $150,000 and the defendant's trial costs were $150,000. Even though the counsel fee for trial is around $50,000, the defendant will also have several solicitors and experts behind the scenes billing for their services. The defendant would only have to pay the plaintiff $700,000 - $150,000 = $550,000. Then the plaintiff would have to pay his or her own trial costs from that leaving him or her with $400,000. The plaintiff would also not be reimbursed with his or her court hearing fees or attendance fees for witnesses. That could be another $10,000 to $20,000.
But, the defendant would have to pay the plaintiff's legal costs and disbursements up until it made its best offer.
When a defendant makes its best offer, the plaintiff should take it seriously.
Time Frame
Registered Permanent Impairment Assessment
First, a worker must have a permanent impairment assessment, and be assessed with a whole person impairment of at least 15%, and properly register that assessment online at WorkCover WA within 3 years of the work injury.
Negligence
The injured worker has up to 3 years from the date of the work injury to make a common law claim in negligence against his or her employer at the Perth District Court in Western Australia.
If the date of injury was 1 July 2025, then the last day to file a writ is 30 June 2028. It is not 1 July 2028 as most people might think.
Whether the employer was negligent should be determined as soon as possible, otherwise evidence goes "missing" or witnesses move on or simply forget the details. Or, if the worker says nothing about negligence for 3 years, the insurer might accuse the worker of making things up.
Negligence often comes down to what the employer knew about potential risks of injuries in the workplace, such as warnings about hazards from workers, and with that knowledge, what appropriate response the employer should have taken.
Don't assume that just because an injury occurred that the employer must have been negligent. Sometimes it's just bad luck. The injured person has to instead rely on other insurance such as income protection, total permanent disability, or private health.
Court Procedure
1. Writ: The writ is filed. This is a 4-page document that gives a short description of the work injury. This is done online only through a registered account. The online system produces the writ after relevant details are entered.
The injured person who authorised the filing of the writ is called the 'plaintiff'. The plaintiff commences an "action". The plaintiff worker then has up to 1 year to serve the writ on the defendant employer.
Sometimes a worker might want to delay service because they are still awaiting their final medical examination so that they can assess their losses. Before the expiry of 1 year, the worker can apply to extend service of the writ by another year if they need more time for their final medical examination.
2. Memorandum of Appearance: After the writ is served, the defendant has 14 days to file its memorandum of appearance if the defendant's registered office is located in Western Australia, or it has 28 days if it is located outside of Western Australia.
3. Statement of Claim; The plaintiff then has 14 days to file his or her statement of claim. This is probably the most important document in a common law claim. The plaintiff should really paint the picture of the accident scene and the background information about the place of employment. The idea is to paint such a compelling picture, that any ordinary person reading it could see how the employer was negligent in causing the plaintiff's injury.
4. Defence: The defendant has 14 days to file its defence.
5. Discovery: . The plaintiff and defendant have 60 days after the defence is served to produce a list of documents and produce any discoverable document from that list when requested. 6. Particulars of Damage: The plaintiff has 60 days after the defence is served to file particulars of damage. This is a document of around 7 to 10 pages that outlines the damages to the plaintiff that have resulted from the work injury, including loss of earning capacity and superannuation, medical expenses, gratuitous and paid services, interest, and general damages for pain and suffering and loss of enjoyment of life.
7. Entry for Trial: The plaintiff has 120 days after the defence is served to enter the action for trial, This document is created online and confirms that the court procedure has been complied with. including that the plaintiff has had legal costs and disbursements explained to them, as well as the defendant's legal costs and disbursements that the plaintiff will have to pay if the plaintiff loses at trial. The plaintiff requests the defendant's unavailable dates and then schedules a date for a pre-trial conference. Often dates a month later are available at the District Court.
8. Pre-Trial Conference: This takes place at the Perth District Court. Each party is assigned their own room and then the lawyers go backwards and forwards exchanging offers. The insurer will make its best offer. Several pre-trial conferences go on at once. If the parties don't reach agreement, the Registrar on the days has meeting together with the parties in the same room.
8. Listing Conference - If the plaintiff does not accept the best offer, the parties have a listing conference about a month later to set trial dates. This can be tricky when more witnesses are required because there are more timetable clashes. Sometimes the trial may have to be broken up into parts. Listing conferences are often adjourned for months because of this or because the defendant wants further medical examinations of the plaintiff. The action can start taking on a 'mind of its own' at this point.
9. Trial Documents: The parties file documents for trial. The plaintiff files his or her outline of submissions 42 days before the trial.
11. Trial: The trial often takes around a week, but out of every 100 actions, only 2 or 3 go to trial. However, only 1 is successful for the plaintiff. There is probably around 1 successful common law claim per year for plaintiffs who go to trial.
12. Judgment: The judge often takes around three months to make a judgment, sometimes longer.
The injured person who authorised the filing of the writ is called the 'plaintiff'. The plaintiff commences an "action". The plaintiff worker then has up to 1 year to serve the writ on the defendant employer.
Sometimes a worker might want to delay service because they are still awaiting their final medical examination so that they can assess their losses. Before the expiry of 1 year, the worker can apply to extend service of the writ by another year if they need more time for their final medical examination.
2. Memorandum of Appearance: After the writ is served, the defendant has 14 days to file its memorandum of appearance if the defendant's registered office is located in Western Australia, or it has 28 days if it is located outside of Western Australia.
3. Statement of Claim; The plaintiff then has 14 days to file his or her statement of claim. This is probably the most important document in a common law claim. The plaintiff should really paint the picture of the accident scene and the background information about the place of employment. The idea is to paint such a compelling picture, that any ordinary person reading it could see how the employer was negligent in causing the plaintiff's injury.
4. Defence: The defendant has 14 days to file its defence.
5. Discovery: . The plaintiff and defendant have 60 days after the defence is served to produce a list of documents and produce any discoverable document from that list when requested. 6. Particulars of Damage: The plaintiff has 60 days after the defence is served to file particulars of damage. This is a document of around 7 to 10 pages that outlines the damages to the plaintiff that have resulted from the work injury, including loss of earning capacity and superannuation, medical expenses, gratuitous and paid services, interest, and general damages for pain and suffering and loss of enjoyment of life.
7. Entry for Trial: The plaintiff has 120 days after the defence is served to enter the action for trial, This document is created online and confirms that the court procedure has been complied with. including that the plaintiff has had legal costs and disbursements explained to them, as well as the defendant's legal costs and disbursements that the plaintiff will have to pay if the plaintiff loses at trial. The plaintiff requests the defendant's unavailable dates and then schedules a date for a pre-trial conference. Often dates a month later are available at the District Court.
8. Pre-Trial Conference: This takes place at the Perth District Court. Each party is assigned their own room and then the lawyers go backwards and forwards exchanging offers. The insurer will make its best offer. Several pre-trial conferences go on at once. If the parties don't reach agreement, the Registrar on the days has meeting together with the parties in the same room.
8. Listing Conference - If the plaintiff does not accept the best offer, the parties have a listing conference about a month later to set trial dates. This can be tricky when more witnesses are required because there are more timetable clashes. Sometimes the trial may have to be broken up into parts. Listing conferences are often adjourned for months because of this or because the defendant wants further medical examinations of the plaintiff. The action can start taking on a 'mind of its own' at this point.
9. Trial Documents: The parties file documents for trial. The plaintiff files his or her outline of submissions 42 days before the trial.
11. Trial: The trial often takes around a week, but out of every 100 actions, only 2 or 3 go to trial. However, only 1 is successful for the plaintiff. There is probably around 1 successful common law claim per year for plaintiffs who go to trial.
12. Judgment: The judge often takes around three months to make a judgment, sometimes longer.
Long Cases
From the time the writ is filed until judgment can take 1 to 4 years, especially if the injury continues to deteriorate, which makes it difficult to have a final medical examination before trial. This is also the case when the insurer seriously disputes negligence or whole person impairment.
Short Cases
However, from the time a writ is filed until a settlement at a pre-trial conference can take 3 to 6 months if both parties are proactive and motivated to achieve settlement. This is often the case when the insurer does not seriously dispute negligence or whole person impairment. It's just a matter of the right dollar amount.
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