Commonwealth Numbered Regulations - Explanatory Statements

[Index] [Search] [Download] [Related Items] [Help]

HIGH COURT OF AUSTRALIA (FEES) REGULATIONS 2004 2004 NO. 372

The Commonwealth Constitution establishes the High Court of Australia (the Court) as Australia's federal supreme court.

Section 88 of the Judiciary Act 1903 (the Act) provides in part that the Governor-General may make regulations, not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act. In particular, paragraph 88(ca) provides that regulations may be made prescribing the fees payable in respect of proceedings in the High Court and the execution of the process of the High Court.

The High Court of Australia (Fees) Regulations 1991 (`the Old Regulations') prescribe certain fees in relation to the Court's proceedings and make provision for the payment of those fees.

The High Court of Australia has recently completed a review of the High Court Rules 1952 (`the Old Rules'), made under section 86 of the Act. As a result of this review, on 1 January 2005 a new set of rules, the High Court Rules 2004 (`the 2004 Rules'), came into operation. One consequence of the making of the 2004 Rules was the need to update the Old Regulations to achieve consistency between the two.

The purpose of the High Court of Australia (Fees) Regulations 2004 (`the 2004 Regulations') is to replace the Old Regulations with regulations that are consistent with the 2004 Rules. The 2004 Regulations also remove or change some obsolete provisions, and are structured in a way that is easier to read and understand than the Old Regulations.

Details of the 2004 Regulations are set out in the Attachment.

The Act does not specify any conditions that need to be met before the power to make the 2004 Regulations may be exercised.

Statutory Rule Draft NO:

Details of the High Court of Australia (Fees) Regulations 2004

Part 1        Preliminary

Regulation 1 - Name of Regulations

Regulation 1 provides for the Regulations to be called the High Court of Australia (Fees) Regulations 2004.

Regulation 2 - Commencement

Regulation 2 provides for the High Court of Australia (Fees) Regulations 2004 (the 2004 Regulations) to commence on 1 January 2005, the same day as the High Court Rules 2004 (the 2004 Rules) came into operation.

Regulation 3 - Repeal

Regulation 3 provides for the repeal of the High Court of Australia (Fees) Regulations 1991 (the Old Regulations).

Regulation 4 - Transitional

Regulation 4 provides for the Old Regulations to continue to apply to any fees payable before the commencement of the 2004 Regulations.

Regulation 5 - Interpretation

Regulation 5 provides for the definition of certain terms within the 2004 Regulations. This is the same as regulation 3 of the Old Regulations except as follows:

`corporation'

The reference to the Corporations Law in the Old Regulations was obsolete. Regulation 5 provides a new definition for `corporation' which refers to the Corporations Act 2001. This definition is consistent with the Federal Court of Australia Regulations 2004 (Federal Court Regulations) and the Federal Magistrates Regulations 2000 (Federal Magistrates Regulations).

`Daily hearing fee'

Regulation 5 does not contain a definition for `daily hearing fee' as this term is not used in the 2004 Regulations. For simplicity, all hearing fees are now described simply as `hearing fees'.

`Registrar'

Regulation 3 clarifies that, for the purposes of the Regulations, `Registrar' includes an acting Registrar.

Part 2        Fees

Regulation 6 - Filing fees and fees for other services

Subregulations 6(1) and 6(2) provide that fees are payable for filing and other services, as prescribed in Parts 1 and 2 of Schedule 1. Subregulation 6(3) describes who is liable to pay the fees. A note clarifies that the fees are subject to increase under regulation 14. Subregulations 6(1), 6(2) and 6(3) are equivalent to old subregulations 4(1), 4(2) and 4(2A).

Regulation 7 - Hearing fees

Subregulation 7(1) provides that hearing fees are payable as prescribed by Part 3 of Schedule 1. Subregulation 7(2) describes who is liable to pay the fees. Subregulation 7(3) clarifies when a fee specified for a corporation must be paid. Subregulation 7(4) clarifies when the fees specified by items 301 and 302 of Schedule 1 are payable and 7(5) prescribes when the fees specified in items 303 and 304 of Schedule 1 must be paid. Subregulations 7(1), 7(2), 7(3), 7(4) and 7(5) are equivalent to subregulations 4A(1), 5(1), 4(3), 5(3) and 5(5) of the Old Regulations. The old provisions relating to hearing and daily hearing fees have been consolidated in regulation 7, and the actual fees moved to Schedule 1, for greater simplicity and user-friendliness.

Regulation 8 - Circumstances in which fees are not payable

Subregulation 8(1) clarifies that a fee is not payable if it has been paid by a person other than the person liable to pay the fee.

Subregulation 8(2) is equivalent to subregulation 4(7) of the Old Regulations. Subregulation 8(3) is equivalent to paragraph 4A(2)(a) of the Old Regulations and subregulation 8(4) is equivalent to old paragraph 5(2)(a).

Paragraph 8(5)(a) provides that a fee is not payable if the person liable to pay the fee is exempt from the payment of fees under regulation 9 and paragraph 8(5)(b) provides that a fee is not payable if the payment of the fee has been waived by a Registrar, under regulation 10.

Regulation 9 - Persons exempt from payment of fees

Regulation 9 consolidates the fee exemption provisions in the Old Regulations, for greater simplicity and usability. It is equivalent to paragraphs 4(4)(a) and (b), 4A(2)(b) and (c) and 5(2)(b) and (c) of the Old Regulations except for the following changes.

The reference to the `Department of Social Security' has been replaced by a reference to `Centrelink'. Centrelink now issues all health concession cards previously issued by the Department of Social Security.

Subregulation 9(2) also defines `holder' of a concession card to exclude a dependant of the holder of the card. Many concession cards list not only the primary card holder but also his or her dependants. This change makes the 2004 Regulations consistent with the Federal Court Regulations and the Federal Magistrates Regulations. Most dependants are children who are covered by the exemption for minors, and dependants who are not children are likely to be eligible for a fee waiver or exemption in their own right.

Regulation 10 - Waiver of fee

Regulation 10 provides for the Registrar to have the discretion to waive the payment of a fee where it would cause financial hardship. This regulation consolidates and is equivalent to paragraphs 4(4)(c), 4A(2)(d) and 5(2)(d) of the Old Regulations.

Regulation 11 - Deferral of payment of fee

Regulation 11 provides for the Registrar to have the discretion to defer the payment of a fee prescribed by Part 1 of Schedule 1. This regulation is equivalent to subregulations 4(5) and 4(6) of the Old Regulations.

Regulation 12 - Consequences of non-payment of fee

Regulation 12 sets out the consequences of non-payment of a fee. This regulation is the same as and consolidates subregulations 4(3), 4A(4) and 5(4) of the Old Regulations.

Regulation 13 - Refund of fees

Regulation 13 provides for the refund of a hearing fee under certain circumstances where the hearing does not take place or is only conducted for the making of formal orders. This regulation is the same as regulation 5C of the Old Regulations.

Regulation 14 - Biennial increases in fees

Regulation 5A of the Old Regulations provided for the fees prescribed by regulations 4, 4A and 5 of the Old Regulations to be increased, in accordance with the formula specified in regulation 5B of the Old Regulations, on each biennial anniversary of 1 July 1996.

Regulation 14 provides for the fees specified in Schedule 1 to the 2004 Regulations to be increased, in accordance with the formula specified in Schedule 2 to the 2004 Regulations, on each biennial anniversary of 1 July 2004. The new date reflects the fact that Schedule 1 sets out the previously applicable fees as increased in accordance with the formula (see `Schedule 1', below). The formula has been moved to a schedule to improve the overall readability of the Regulations (see Schedule 2).

Part 3        Miscellaneous

Regulation 15 - Notice of decision - review by the Administrative Appeals Tribunal

Regulation 15 provides for review by the Administrative Appeals Tribunal (AAT) of a decision of a registrar not to waive a fee under regulation 10. This regulation is equivalent to regulation 6 of the Old Regulations, except that additional subregulations (4) and (5) clarify that a notice of decision must be given within 28 days after the date of the decision and failure to provide a statement explaining that the applicant can apply to the AAT for review of the decision does not invalidate the decision. The addition of these subregulations makes this regulation consistent with regulation 16 of the Federal Court Regulations which deals with AAT review of decisions under the Federal Court Regulations.

Schedule 1 - Fees

Schedule 1 specifies the fees applicable since 1 July 2004, that is, the old fees as automatically increased in accordance with the formula in old regulation 5A. The items for which fees are prescribed are the same as in the Old Regulations except as follows:

Item 101

Item 1 of Schedule 1 to the Old Regulations specified fees for applications under rule 1 of Order 55 of the High Court Rules 1952 (the Old Rules). In the High Court Rules 2004 (the 2004 Rules) there is no direct equivalent to rule 1 of Order 55. Item 101 lists the equivalent applications under the 2004 Rules to those previously covered by rule 1 of Order 55 of the Old Rules.

Removal of the fee for an application for summons for directions (item 5A of Schedule 1 to the Old Regulations)

Under the 2004 Regulations, there is no equivalent to item 5A of Schedule 1 to the Old Regulations, which specified a fee for an application for a summons for directions.

Under the Old Rules an application under Order 55 rule 1 or a writ of summons or a petition did not have to proceed to a directions hearing. Rather, a party to an action could take out a summons for directions at any time before judgment (old Order 31 rule 1). Very few applications for summons for directions were filed.

However, under the 2004 Rules, a plaintiff filing a writ of summons or a petition will have to file a summons for directions returnable before a Justice (2004 Rules 27.06 and 32.01). Item 5A of Schedule 1 to the Old Regulations has been removed as it would result in this fee having to be paid in circumstances when the fee was previously not payable.

Item 201

Item 9 of Schedule 1 to the Old Regulations referred to documents mentioned in subrule 8(2) of Order 55 of the Old Rules. The equivalent rule in the 2004 Rules is Rule 4.07.4. Item 201 therefore refers to Rule 4.07.4 of the 2004 Rules instead of subrule 8(2) of Order 55 of the Old Rules. Otherwise item 201 is the same as item 9 of Schedule 1 to the Old Regulations.

Item 204

Item 12 of Schedule 1 to the Old Regulations specified fees for annual subscriptions for copies of reasons for judgments including the cost of postage. Subscriptions to judgments are now provided in electronic form only. To avoid misunderstanding, item 204 removes the reference to the cost of postage.

Items 301 & 302

Items 301 and 302 specify the hearing fees specified by subregulation 4A(1) of the Old Regulations, as automatically increased under the formula in old regulation 5A. These items are the same as old subregulation 4A(1) except that they do not expressly exclude applications for leave or special leave to appeal. Those exclusions are not necessary because a notice of appeal is different from an application for leave or special leave to appeal. These items also clarify that these fees only apply to hearings before the Full Court.

Item 303

Paragraph 5(1)(a) of the Old Regulations specifies daily hearing fees for the hearing of applications under rule 1 of Order 55 of the Old Rules. As noted above (see item 101), there is no equivalent of rule 1 of Order 55 in the 2004 Rules. Item 303 specifies the fees for the hearing of applications covered by old Rule 1 of Order 55.

Under the Old Regulations there was only a daily hearing fee for the hearing of a writ of summons or petition if the hearing was by the Full Court (paragraph 5(1)(b)). A daily hearing fee was often not paid for these hearings because they were heard by a single judge.

It was anomalous that the daily hearing fee was not payable in relation to petitions and writs of summons heard by a single Justice. Item 303 therefore provides for the fee to be payable in relation to these proceedings.

Item 303 also prescribes a fee for the hearing of a summons by a single Justice. This is the equivalent of the daily hearing fee for a chamber summons in paragraph 5(1)(a) of the Old Regulations. The term `chamber summons' is no longer used as the distinction between a Justice sitting in Court and sitting in chambers is abolished by 2004 rule 6.04.3.

The fee for a summons will not apply to a summons for directions or a summons mentioned in rule 25.03.1 of the 2004 Rules. As noted above, under the 2004 Rules a plaintiff filing a writ of summons or a petition will have to file a summons for directions returnable before a Justice (2004 Rules 27.06 and 32.01). For an application for an order to show cause the plaintiff also must file a summons returnable before a Justice (2004 rule 25.03.1). All these applications must therefore proceed to a preliminary hearing by a single Justice before they can go to the main hearing of the application.

For these forms of initiating process, the compulsory preliminary or directions hearing creates a two hearing process which did not exist under the Old Rules. So that applicants will not incur two fees where only one was previously payable, the hearing of summons for directions and summons mentioned in rule 25.03.1 are expressly excluded.

The old daily hearing fee for a notice of motion (paragraph 5(1)(a) of the Old Regulations) is now covered by the hearing fee for a summons.

Item 304

Item 304 is equivalent to paragraph 5(1)(b) of the Old Regulations, except as follows:

Item 304 provides for the specified fees not to be payable for the hearing of an application for removal under section 40 of the Judiciary Act 1903 (the Act).

Under the Old Regulations, the High Court treated proceedings for removal under section 40 of the Act in the same way as applications for leave or special leave to appeal for the purpose of determining whether the Full Court daily hearing fee was payable under paragraph 5(1)(b) of the Old Regulations. This is because practice direction No 1 of 2001 states that:

The proceedings specified in Order 69A of the High Court Rules [the Old Rules] for applications for special leave or leave to appeal shall apply to applications for removal.

Under section 21 of the Act, an application for special leave to appeal may be heard by a single Justice or by the Full Court. Previously, no daily hearing fee was payable for an application for leave or special leave to appeal (old regulation 5). As the Court treats applications for removal in the same way as applications for leave or special leave to appeal, no fee has been payable for the hearing of an application for removal.

This practice direction has effectively been replaced by subrule 26.05.3 of the 2004 Rules which states that:

...an application for an order for removal shall be determined, discontinued or deemed abandoned in the same manner as an application for special leave to appeal may be under Part 41.

Pursuant to rule 41.11 of the 2004 Rules an application for removal may be determined by two Justices, either on the papers or with an oral hearing. If there is a hearing of the matter, oral argument will be limited to 20 minutes for the applicant, 20 minutes for the respondent and a further 5 minutes for the applicant to reply.

Given that the procedures for dealing with removal applications, including the hearing time, are the same as those for leave and special leave applications, the daily hearing fee for removals has been removed.

Item 304 also clarifies that the fees specified in this item must be paid in addition to the fees specified in item 302 and that they must be paid for all days of hearing, including the first day. The High Court has experienced difficulty with litigants not realising they must pay these fees in addition to the fees in item 302 (paragraph 4A(1)(b) of the Old Regulations), including for the first day of hearing.

Schedule 2 - Formula for calculating biennial increase of fees

Schedule 2 is the same as regulation 5B of the Old Regulations, except that the date has been changed from 1 July 1996 to 1 July 2004 to reflect the fact that proposed Schedule 1 specifies the fees applicable since 1 July 2004.