Time Recording and Billing for Commercial Litigation in Australia

Commercial litigation is the most billing-intensive area of legal practice. Matters routinely run for years, involve multiple fee earners across different seniority levels, generate enormous volumes of documents, and produce bills that can reach into the hundreds of thousands — or millions — of dollars. The stakes are high for both the client and the firm, and the quality of time recording directly determines whether those bills survive client scrutiny, billing review, and costs assessment.

This guide covers the specific challenges of billing for commercial litigation in Australian courts, from pre-action correspondence through to trial and costs recovery.

Why Commercial Litigation Billing Demands Higher Standards

Several characteristics of commercial litigation make accurate time recording more critical than in transactional or advisory work:

Costs follow the event. Unlike family law, where each party typically bears their own costs, commercial litigation generally operates on the principle that the losing party pays the winning party's costs. This means your time records may need to withstand scrutiny not just from your own client, but from the opposing party's costs assessor. Vague or excessive entries will be challenged and reduced.

Multiple fee earners. A significant commercial matter may involve a partner, senior associate, junior associate, and paralegal working simultaneously. Each must record their time separately with descriptions that clearly differentiate their contributions. Without this differentiation, costs assessors will disallow entries that appear to duplicate the same work.

Long duration. A matter that runs for three years generates thousands of time entries. Consistency in recording standards across years — and across staff changes — requires systems and supervision, not just good intentions at the start of the matter.

Proportionality. Courts increasingly scrutinise whether the costs incurred are proportionate to the amount in dispute. A $200,000 costs bill on a $300,000 claim will face greater scrutiny than the same bill on a $5 million claim, even if the work was identical.

Recording Time for Key Litigation Stages

Pre-action correspondence and investigation

The work that precedes the filing of proceedings — investigating the claim, obtaining and reviewing documents, corresponding with the prospective defendant, issuing letters of demand — must be recorded with the same rigour as court-related work. These entries establish the narrative of the litigation and demonstrate that the claim was properly investigated before proceedings were commenced.

Descriptions should identify the specific issue being investigated, the documents reviewed, and the purpose. "Reviewing documents re claim" is insufficient. "Perusal of and analysis of loan facility agreement dated 15 March 2023 and associated security documents; identifying clauses relevant to alleged breach of covenant 7.3(b)" demonstrates value.

Pleadings

Drafting pleadings is one of the highest-value activities in litigation, and the time entries should reflect the intellectual effort involved. Record separately the initial research and analysis, the drafting itself, internal review and revision, and any conference with counsel about the pleadings. A single entry covering "Drafting statement of claim (15 hours)" tells the client nothing about what those 15 hours actually produced. Break it into stages with specific descriptions of the causes of action and facts being pleaded.

Discovery and document review

Discovery is where commercial litigation bills often become contentious. Large-scale document review can generate hundreds of hours of billable time, and clients — particularly sophisticated commercial clients — will scrutinise these entries carefully.

Best practice for discovery billing includes recording time in blocks of 2-3 hours rather than single full-day entries, identifying the category or source of documents being reviewed in each entry, noting the volume of documents covered and the purpose of the review, distinguishing between first-pass review for relevance, privilege review, and substantive analysis, and recording the preparation of discovery lists and affidavits of documents separately from the review itself.

Consider also the efficiency question. A client who sees 200 hours of document review by a senior associate billing at $600/hour will ask whether some of that work could have been done by a junior lawyer or paralegal at a lower rate. Appropriate delegation and supervision is not just good management — it is a billing risk issue.

Interlocutory applications

Commercial litigation often involves multiple interlocutory applications — for injunctions, security for costs, discovery orders, summary judgment, or strike-out. Each application generates its own cycle of preparation, evidence, submissions, and court attendance. Record these as distinct billing activities linked to the specific application, not bundled into general "litigation" entries.

For detailed guidance on billing for court appearances, see our article on billing for court appearances and litigation.

Expert evidence

Engaging and instructing experts generates billable work at several stages: identifying and selecting the expert, preparing the letter of instruction, reviewing and commenting on the draft report, conferring with the expert about the final report, and preparing for the expert's testimony at trial. Each stage should be recorded separately. The time spent preparing expert instructions is frequently under-recorded because lawyers treat it as incidental to the substantive case work — but it is distinct, often time-consuming, and fully billable.

Mediation and settlement

Most commercial litigation in Australia will proceed to mediation or some form of alternative dispute resolution. The billing for mediation follows a similar pattern to FDR in family law: preparation (including reviewing the file, preparing a mediation statement, and briefing the client), attendance at the mediation itself, and follow-up work (drafting settlement terms or advising on next steps if the mediation is unsuccessful).

The mediation session should be recorded as a block entry with start and end times. If the mediation runs for 8 hours, that is 8 hours of billable time — record it as such. Lawyers sometimes under-record mediation attendance because they feel uncomfortable billing for time spent "in the room" without actively doing legal work, but attendance at mediation is billable professional time regardless of whether you are speaking or listening.

Trial preparation and trial

Trial preparation is the most intensive billing period in any litigation matter. Activities to record separately include reviewing and organising the court book, preparing witness outlines and proofs of evidence, preparing cross-examination notes, drafting opening and closing submissions, conferring with counsel on trial strategy, and preparing chronologies and aide-memoires.

During the trial itself, record each day as a block entry with the actual hours in court, plus any preparation or follow-up work done outside court hours. If you work on submissions in the evening after a day in court, that is a separate entry.

Managing the Multi-Fee-Earner Problem

The most common billing challenge in commercial litigation is distinguishing the contributions of multiple fee earners. When three lawyers attend the same case conference, or when a partner and associate both work on the same submissions, the entries must make clear what each person did and why their involvement was necessary.

Bad practice: Partner and associate both record "Attending case conference with counsel." A costs assessor will reduce one of these entries because the descriptions are identical.

Good practice: Partner records "Attending case conference with counsel and instructing on quantum issues; providing instructions regarding expert valuation methodology." Associate records "Attending case conference with counsel; preparing detailed attendance note of matters discussed and action items arising; updating matter timeline." Each entry demonstrates a distinct contribution.

The same principle applies to document drafting. If a junior drafts a document and a senior reviews it, both entries are legitimate — but the descriptions must make the distinction clear. For guidance on supervising junior lawyers' billing, see our article on supervising junior lawyer billing.

Costs Recovery: Standard vs Indemnity Basis

When a commercial litigant wins a costs order, the recoverable costs depend on the basis of assessment ordered by the court.

Standard basis allows recovery of costs that were proportionately and reasonably incurred and proportionate and reasonable in amount. In practice, successful parties typically recover 60-70% of their actual costs on a standard basis assessment. This gap between actual costs and recoverable costs means that even the winning party bears a significant portion of their own legal costs.

Indemnity basis is a more generous assessment that allows recovery of all costs except those that were unreasonably incurred or unreasonable in amount. Indemnity costs are ordered where the court considers the losing party's conduct warrants it — for example, where a Calderbank offer was unreasonably rejected, or where proceedings were conducted improperly.

Regardless of the basis, the quality of your time records directly determines how much the client recovers. Well-described, proportionate entries survive assessment; vague entries are reduced. For guidance on writing descriptions that withstand costs assessment scrutiny, see our billing description examples.

Technology and Commercial Litigation Billing

The volume and complexity of commercial litigation makes it the practice area most likely to benefit from billing automation. AI-powered tools can generate detailed descriptions from conference recordings and correspondence, ensuring that the dozens of short communications that occur daily in active litigation are captured with professional descriptions rather than lost or under-described.

This is particularly valuable for the communications that are hardest to record manually — the 5-minute call to counsel, the chain of emails about a procedural issue, the brief internal discussion about a discovery dispute. Each of these is a legitimate billing entry, but the friction of manual recording means most are never captured.