High Court of Australia (Fees) Regulations 2022

I, General the Honourable David Hurley AC DSC (Retd), Governor‑General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following regulations.

Dated  15 December 2022

David Hurley

Governor‑General

By His Excellency’s Command

Mark Dreyfus KC

Attorney‑General

Contents

Part 1—Preliminary

1 Name

2 Commencement

3 Authority

3A Schedule 2

3B Definitions

4 Meaning of corporation

Part 2—Fees

Division 2.1—General

6 Purpose of Part

7 Fees

Division 2.2—Liability to pay fees

8 Persons liable to pay fees

Division 2.3—When fees are not payable

10 When fees are not payable

Division 2.4—Exemptions and financial hardship fees

11 Persons exempt from paying fees

12 Financial hardship fees

Division 2.5—Payment of fees

12A When fees must be paid

13 Deferral of payment of fees

14 What happens if fees are not paid

Division 2.6—Miscellaneous

15 Refund of fees

16 Annual increase in fees

17 Notice of decision and AAT review

18 Debt due to Commonwealth

Part 3—Application, saving and transitional provisions

Division 3.1—Application, saving and transitional provisions in relation to the commencement of this instrument

19 Definitions

20 Application provision

21 Saving provision

22 Things done under the old regulations

23 Conduct, event or circumstances occurring before commencement

Schedule 1—Fees

Part 1—Filing fees and hearing fees

Part 2—Fees for obtaining a document or service

Schedule 2—Repeals

High Court of Australia (Fees) Regulation 2012

Part 1—Preliminary

1  Name

  This instrument is the High Court of Australia (Fees) Regulations 2022.

2  Commencement

 (1) Each provision of this instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Note: This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.

 (2) Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument.

3  Authority

  This instrument is made under the Judiciary Act 1903.

3A  Schedule 2

  Each instrument that is specified in Schedule 2 to this instrument is amended or repealed as set out in the applicable items in that Schedule, and any other item in that Schedule has effect according to its terms.

3B  Definitions

 (1) In this instrument:

Act means the Judiciary Act 1903.

corporation: see section 4.

Court means the High Court of Australia.

CPI number, for a quarter, means the All Groups Consumer Price Index number (being the weighted average of the 8 Australian capital cities) published by the Australian Statistician for that quarter.

filing fee means a fee mentioned in any of items 101 to 107 of Schedule 1.

half day means a period of up to 3 hours in a scheduled hearing day.

hearing fee means a fee mentioned in any of items 108 to 111 of Schedule 1.

liable person, in relation to a fee, means the person who is required to pay the fee under Division 2.2.

March quarter means a period of 3 months ending at the end of March.

proceeding includes an application to commence a proceeding.

publicly listed company means a company that is listed on a stock exchange or financial market in any country.

Registrar means the following:

 (a) the Chief Executive and Principal Registrar of the Court appointed under section 18 of the High Court of Australia Act 1979;

 (b) the Senior Registrar of the Court, or the Deputy Registrar of the Court, appointed under subsection 26(1) of that Act;

 (c) a person appointed to act in a position mentioned in paragraph (a) or (b).

relevant period means a financial year starting on or after 1 July 2022.

Rules means the Rules of Court made under section 86 of the Act.

 (2) A term or expression used in this instrument and in the Rules has the same meaning in this instrument as it has in the Rules.

4  Meaning of corporation

 (1) In this instrument, corporation includes the following:

 (a) a company;

 (b) a body corporate;

 (c) an unincorporated body that, under the law of the place where the body is formed, may:

 (i) sue or be sued; or

 (ii) hold property in the name of the secretary of the body or an office holder of the body appointed for that purpose;

 (d) a public authority;

 (e) a corporation registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006;

 (f) a trade union.

 (2) However, corporation does not include the following:

 (a) a corporation sole that is not a public authority;

 (b) a small business;

 (c) an unincorporated not‑for‑profit association.

 (3) For paragraphs (1)(d) and (2)(a), each of the following is a public authority:

 (a) a body or authority of the Commonwealth or of a State or Territory, including the following:

 (i) a Department of the Commonwealth or of a State or Territory;

 (ii) a Department of the Parliament established under the Parliamentary Service Act 1999, a Department of the Parliament of a State or a Department of the legislature of a Territory;

 (iii) any other non‑corporate Commonwealth entity within the meaning of the Public Governance, Performance and Accountability Act 2013;

 (b) a person representing a body or authority of the Commonwealth or of a State or Territory;

 (c) a Minister for the Commonwealth or for a State or Territory;

 (d) a statutory office holder.

 (4) For paragraph (2)(b), a small business is a business with:

 (a) no more than 19 employees; and

 (b) a total turnover of less than $2 million each year.

 (5) For paragraph (2)(c), a not‑for‑profit association is a society, club, institution or body that is not formed for the purpose of trading or securing pecuniary profit from its transactions for its members.

 (6) A corporation is not required to be subject to the Corporations Act 2001 to be a corporation for the purposes of this instrument.

Part 2—Fees

Division 2.1—General

6  Purpose of Part

  For the purposes of section 88 of the Act, this Part sets out matters relating to fees.

7  Fees

 (1) Schedule 1 sets out the fees payable for the following:

 (a) the filing of a document;

 (b) a hearing before the Full Court or a single Justice of the Court;

 (c) obtaining a document;

 (d) the provision of a service.

Note 1: Fees are subject to increase under section 16.

Note 2: Fees are not payable in some circumstances: see section 10.

 (2) If the person liable to pay a fee mentioned in an item in Schedule 1 (or, if more than one person is liable, any of those persons) is a corporation, the fee payable is:

 (a) if the corporation is a publicly listed company—the fee mentioned in the item for a publicly listed company; or

 (b) if the corporation is not a publicly listed company—the fee mentioned in the item for a corporation; or

 (c) if no fee is mentioned in the item specifically for a corporation or a publicly listed company—the fee mentioned in the item.

 (3) However, if:

 (a) under Division 2.2, a particular fee mentioned in an item in Schedule 1 is payable by more than one person; and

 (b) the item mentions different fees for a publicly listed company, another corporation and another person (the different persons); and

 (c) at least 2 of the persons mentioned in paragraph (a) are different persons;

the only fee that is payable in relation to that particular fee is the highest fee that applies to any of those persons.

Division 2.2—Liability to pay fees

8  Persons liable to pay fees

 (1) A fee in relation to a proceeding in the Court is payable as set out in this section, unless the Court, a Justice of the Court or a Registrar directs otherwise.

Filing fee

 (2) A filing fee is payable by the person for whom the relevant document is filed.

Hearing fee

 (3) A hearing fee in relation to a proceeding is payable by the person who commences the proceeding.

 (4) A hearing fee mentioned in item 111 of Schedule 1 in relation to a proceeding that is an interlocutory proceeding is payable by the person who commences the interlocutory proceeding.

 (5) However, the Court, a Justice of the Court or a Registrar may order that another party to the proceeding is liable to pay the hearing fee or part of the hearing fee instead of the person mentioned in subsection (3) or (4) (as applicable).

Fees for obtaining a document or service

 (6) A fee mentioned in Part 2 of Schedule 1 is payable:

 (a) for a fee for obtaining a document—by the person for whom the document is obtained; and

 (b) in any other case—by the person for whom the service is provided.

Division 2.3—When fees are not payable

10  When fees are not payable

 (1) A fee mentioned in Schedule 1 is not payable by the liable person for the fee if another person has paid the fee.

 (2) A fee mentioned in Schedule 1 is not payable in a proceeding for which an international convention that is in force for Australia provides that no fee is to be payable.

 (3) A fee mentioned in any of items 108 to 110 of Schedule 1 is not payable in relation to an interlocutory proceeding.

 (4) A hearing fee is not payable in relation to a hearing if the sole purpose of the hearing is the delivery of a reserved judgment.

Division 2.4—Exemptions and financial hardship fees

11  Persons exempt from paying fees

 (1) A person is exempt from paying a filing fee or a hearing fee if, at the time the fee is payable, one or more of the following apply:

 (a) the person has been granted legal aid for the proceeding for which the fee would otherwise be payable under a legal aid scheme or service:

 (i) established under a law of the Commonwealth or of a State or Territory; or

 (ii) approved by the Attorney‑General;

 (b) the person is the holder of any of the following cards issued by the Commonwealth:

 (i) a health care card;

 (ii) a pensioner concession card;

 (iii) a Commonwealth seniors health card;

 (iv) any other card that certifies the holder’s entitlement to Commonwealth health concessions;

 (c) the person is serving a sentence of imprisonment or is otherwise detained in a public institution, or is in immigration detention (within the meaning of the Migration Act 1958);

 (d) the person is younger than 18;

 (e) the person is receiving youth allowance or Austudy payments under the Social Security Act 1991 or benefits under the ABSTUDY Scheme;

 (f) the person has received funding for the proceeding for which the fee would otherwise be payable under Part 11 of the Native Title Act 1993 from:

 (i) a representative body within the meaning of section 253 of that Act; or

 (ii) a person or body to whom funding has been made available under section 203FE of that Act.

 (2) For paragraph (1)(b), the holder of a card does not include a dependant of the person who is issued the card.

12  Financial hardship fees

 (1) If:

 (a) a full fee mentioned in an item in Schedule 1 is payable by an individual; and

 (b) the item mentions a financial hardship fee; and

 (c) in the opinion of a Registrar at the time the full fee is payable, the payment of the full fee would cause financial hardship to the individual;

the Registrar may determine that the individual may pay the financial hardship fee mentioned in the item instead of the full fee that would otherwise be payable.

 (2) In considering whether payment of the full fee would cause financial hardship to an individual, the Registrar must consider the individual’s income, day‑to‑day living expenses, liabilities and assets.

Note: A decision of the Registrar under this section is reviewable by the AAT: see section 17.

Division 2.5—Payment of fees

12A  When fees must be paid

Filing fee

 (1) A filing fee must be paid before the relevant document is filed.

Hearing fee

 (2) A hearing fee mentioned in item 108 or 109 of Schedule 1 must be paid at the time the document to which the hearing relates is filed.

 (3) A hearing fee mentioned in item 110 of Schedule 1 must be paid as follows:

 (a) if the fee is in respect of a hearing day that is the second or a subsequent business day after the day when the document to which the hearing relates is filed—no later than 2 business days before the hearing day;

 (b) in any other case—no later than 9.30 am on the hearing day.

 (4) A hearing fee mentioned in item 111 of Schedule 1 must be paid as follows:

 (a) if the fee is in respect of a hearing day that is the day, or the first business day after the day, when the document to which the hearing relates is filed—at the time the document is filed;

 (b) if the fee is in respect of a hearing day that is the second or a subsequent business day after the day when the document to which the hearing relates is filed—no later than 2 business days before the hearing day;

 (c) in any other case—no later than 9.30 am on the hearing day.

Fees for obtaining a document or service

 (5) A fee mentioned in Part 2 of Schedule 1 for obtaining a document must be paid before the document is obtained.

 (6) A fee mentioned in Part 2 of Schedule 1 for obtaining a service must be paid before the service is provided.

13  Deferral of payment of fees

 (1) Section 12A does not apply to a fee if a Registrar defers the payment of the fee.

 (2) The Registrar may defer the payment of a fee under subsection (1) if:

 (a) the fee is a filing fee or a hearing fee; and

 (b) in the Registrar’s opinion, the need to file the document or hear the proceeding is so urgent that it overrides the requirement to pay the fee when the fee would otherwise be payable.

 (3) If the payment of a fee is deferred, the fee must be paid:

 (a) within 28 days after the day the payment is deferred; or

 (b) within another period approved, in writing, by the Registrar for the payment of that fee.

 (4) A fee can be deferred under this section only once.

14  What happens if fees are not paid

 (1) This section applies if the payment of a fee is not deferred under section 13.

 (2) If a person is required to pay a filing fee or a fee mentioned in Part 2 of Schedule 1 in relation to a proceeding before the filing or obtaining of a document or the provision of a service, the document must not be filed, and the document or service must not be provided, until the whole fee is paid.

 (3) If a hearing fee for a hearing day is not paid in relation to a proceeding:

 (a) the Court or a Justice of the Court may, on application by a party to the proceeding, order that no proceeding, or no proceeding other than a specified proceeding, is to take place except by leave; and

 (b) a person other than the person liable to pay the fee may pay the fee without affecting any power of the Court or a Justice of the Court to make an order for costs for the fee; and

 (c) the Court or a Justice of the Court may vacate the hearing day.

Division 2.6—Miscellaneous

15  Refund of fees

General

 (1) A person is entitled to a refund of an amount in relation to the payment of a fee if the person pays more than the person is required to pay for the fee under this instrument.

 (2) The amount to be refunded is the difference between the amount paid by the person and the amount that the person is required to pay for the fee.

Hearing fees

 (3) A person is entitled to the refund of the amount paid by the person as a hearing fee if:

 (a) the person notifies a Registrar, in accordance with subsection (4), that the hearing will not occur and:

 (i) the hearing does not occur; or

 (ii) a hearing is conducted only for the purpose of making formal orders; or

 (b) a hearing day has not been fixed and the proceeding to which the hearing relates is discontinued or otherwise determined.

 (4) The person must notify the Registrar in writing:

 (a) if the hearing day was fixed less than 10 business days before the hearing day—at least 2 business days before the hearing day; and

 (b) in any other case—at least 10 business days before the hearing day.

16  Annual increase in fees

 (1) The amount of each fee mentioned in Schedule 1 is increased on 1 July 2023, and on each 1 July following that day.

Fees other than financial hardship fees

 (2) Subsections (3) and (4) apply to a fee mentioned in Schedule 1 other than a fee described as a financial hardship fee.

 (3) If, in a relevant period, the latest CPI number is greater than the earlier CPI number, the fee is increased, on 1 July immediately following the end of the period, in accordance with the formula:

where:

earlier CPI number is the CPI number for the last March quarter before the start of the relevant period.

fee is the amount of the fee in force at the end of the relevant period.

latest CPI number is the CPI number for the last March quarter before the end of the relevant period.

 (4) The amount of the fee worked out under subsection (3) is to be rounded to an amount of dollars and cents and then further rounded as follows:

 (a) if the amount is $50 or more—the amount is to be rounded to the nearest amount that is a multiple of $5;

 (b) if the amount is less than $50—the amount is to be rounded to the nearest whole dollar;

 (c) if the amount to be rounded is 50 cents, the amount is to be rounded down.

Financial hardship fees

 (5) If:

 (a) a fee (the first fee) is increased and rounded under subsections (3) and (4); and

 (b) the item in Schedule 1 that mentions the fee also mentions a financial hardship fee;

the financial hardship fee is increased, at the same time as the first fee, in accordance with subsection (6).

 (6) The increased financial hardship fee is one‑third of the amount of the first fee (as increased and rounded under subsections (3) and (4)), rounded down to the nearest multiple of $5.

Other rules

 (7) If the Australian Statistician publishes for a particular March quarter a CPI number in substitution for a CPI number previously published by the Australian Statistician for that quarter, the publication of the later CPI number is disregarded for this section.

 (8) However, if the Australian Statistician changes the index reference period for the CPI number, then for the application of this section after the change is made, regard must be had only to CPI numbers published in terms of the new index reference period.

17  Notice of decision and AAT review

 (1) A Registrar must give a liable person for a fee a notice in accordance with this section if the Registrar makes a decision about the fee under section 12.

 (2) The Registrar must give the notice to the liable person within 28 days after making the decision.

 (3) The notice must set out:

 (a) the decision; and

 (b) if the decision is to not determine that the person may pay a financial hardship fee:

 (i) a statement that the liable person may apply to the Administrative Appeals Tribunal for review of the decision; and

 (ii) reasons for the decision.

 (4) The liable person may apply to the Administrative Appeals Tribunal for review of the decision.

 (5) Failure to comply with paragraph (3)(b) does not affect the validity of the decision.

18  Debt due to Commonwealth

  Any fee that is not paid in accordance with this instrument is recoverable by the Commonwealth as a debt due to the Commonwealth.

Part 3—Application, saving and transitional provisions

Division 3.1—Application, saving and transitional provisions in relation to the commencement of this instrument

19  Definitions

  In this Division:

old regulations means the High Court of Australia (Fees) Regulation 2012, as in force immediately before 1 April 2023.

20  Application provision

  This instrument applies in relation to the liability of a person to pay any of the following fees:

 (a) a filing fee for filing a document on or after 1 April 2023;

 (b) a hearing fee in respect of which the document to which the hearing relates is filed on or after 1 April 2023;

 (c) a fee (other than a fee mentioned in item 204 of Schedule 1) for obtaining a document on or after 1 April 2023;

 (d) a fee mentioned in item 204 of Schedule 1 for a service requested on or after 1 April 2023;

 (e) any other fee under this instrument for a service provided on or after 1 April 2023.

21  Saving provision

  To avoid doubt, the old regulations continue to apply in relation to the liability of a person to pay a fee incurred under the old regulations before 1 April 2023.

Note: Section 7 of the Acts Interpretation Act 1901 preserves the liability despite the repeal of the old regulations by this instrument on 1 April 2023. That section applies in relation to regulations because of section 13 of the Legislation Act 2003.

22  Things done under the old regulations

 (1) If:

 (a) a thing was done for a particular purpose under the old regulations; and

 (b) the thing could be done for that purpose under this instrument;

the thing has effect for the purposes of this instrument as if it had been done for that purpose under this instrument.

 (2) Without limiting subsection (1), a reference in that subsection to a thing being done includes a reference to a notice or a determination being given or made.

23  Conduct, event or circumstances occurring before commencement

 (1) To avoid doubt, a function or duty may be performed, or a power exercised, under this instrument in relation to conduct engaged in, an event that occurred, or a circumstance that arose, before 1 April 2023.

Note: For example:

(a) a fee may be paid on or after 1 April 2023 in accordance with section 13 of this instrument if the Registrar deferred the payment of the fee before that day; and

(b) a person may pay a financial hardship fee in respect of a hearing that is fixed on or after 1 April 2023 if the Registrar determines before that day that the person may pay that fee.

 (2) This section does not limit section 22 of this instrument or section 7 of the Acts Interpretation Act 1901 (as that Act applies in relation to this instrument because of paragraph 13(1)(a) of the Legislation Act 2003).

Schedule 1—Fees

Note: See section 7.

Part 1—Filing fees and hearing fees

  The following table sets out filing fees and hearing fees payable in relation to proceedings in the Court.

Note: The fees mentioned in this Part are subject to increase under section 16.

Part 2—Fees for obtaining a document or service

  The following table sets out fees payable for obtaining documents or services in relation to proceedings in the Court.

Note: The fees mentioned in this Part are subject to increase under section 16.

Schedule 2—Repeals

High Court of Australia (Fees) Regulation 2012

1  The whole of the instrument

Repeal the instrument.