Explanatory Statement
High Court Amendment (Fees and Other Matters) Rules 2022
7 March 2022
These Amendment Rules of Court, signed by the Justices of the High Court of Australia on 7 March 2022, are made by the Justices under the Judiciary Act 1903, the Commonwealth Electoral Act 1918 and the High Court of Australia Act 1979.
Part 1 – Amendments relating to fees in Schedule 2
Schedule 2 of the High Court Rules 2004 specifies the amount which solicitors, who are entitled to practise in the High Court, may charge and be allowed on taxation of costs by the Taxing Officer of the Court in respect of proceedings in the Court. The amounts in the Schedule were last varied by the High Court Amendment (Electronic Filing and Other Matters) Rules 2019 F2019L01677 made on 19 December 2019 and apply to work done and services performed by solicitors after 1 January 2020.
The Joint Costs Advisory Committee (JCAC) was established in 2007 to review annually and recommend variations in the quantum of costs contained in the Rules made by the High Court of Australia, the Federal Court of Australia, the Family Court of Australia and the Federal Circuit Court of Australia. It comprises representatives of those courts. In conducting its reviews, the JCAC applies a formula which has regard to movements in wages and salaries and other costs of solicitors’ practices.
The Committee’s Thirteenth Report on Legal Practitioners’ Costs was published in October 2020. The Committee deferred making a recommendation for any increase in scales of costs for each Court in 2020. This approach was adopted due to the impacts of the COVID-19 pandemic and noting that the recommendation for 2020 would have been for a very modest proposed increase of 0.97%. The Committee recommended deferral of the proposed increase for 2020 for consideration in 2021 as part of the Fourteenth Report on Legal Practitioners’ Costs.
The JCAC conducted its annual review in 2021, writing to the Commonwealth Attorney-General’s Department, the Law Council of Australia, the National Association of Community Legal Centres and National Legal Aid inviting them and their respective constituent bodies or State and Territory counterparts to make submissions to the review. A notice of the review was also placed on the website of each court. The Committee received submissions from the Law Council of Australia, the National Legal Aid and from a citizen. Following its review, the JCAC published its Fourteenth Report on Legal Practitioners’ Costs in September 2021. Issues raised in submissions received by the Committee were addressed in the report.
In its report the Committee recommended an increase of 2.5% to the solicitors’ costs provided for in the Rules of each Court in addition to the 0.97% increase deferred from the Committee’s Thirteenth Report. The High Court has accepted both recommendations. The increases to the solicitors’ costs provided in Schedule 2 will take effect on 1 May 2022 and will apply in respect of all work done and services performed by solicitors after 30 April 2022.
Part 2 – Repeal of Part 43 - Applications and appeals from the Supreme Court of Nauru
Section 5 of the Nauru (High Court Appeals) Act 1976 conferred upon the High Court jurisdiction to hear and determine appeals from the Supreme Court of Nauru in accordance with the terms of the Agreement between the Government of Australia and the Government of the Republic of Nauru Relating to Appeals to the High Court of Australia from the Supreme Court of Nauru (the Agreement), signed on 6 September 1976. Part 43 of the High Court Rules 2004 prescribed the procedure for applications and appeals from the Supreme Court of Nauru.
The Nauru (High Court Appeals) Act 1976 was repealed on 18 February 2022 by Schedule 3 of the Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Act 2022 as a consequence of the termination on 13 March 2018 of the Agreement and the subsequent creation of the Nauru Court of Appeal. Part 43 of the High Court Rules 2004 is repealed as it is no longer required.
Statement of compatibility
Section 9 of the Legislative Instruments Act 2003 provides that Rules of Court made for the High Court of Australia are not legislative instruments for the purposes of that Act. The Human Rights (Parliamentary Scrutiny) Act 2011 does not apply to any such Rules of Court and no statement of compatibility for the purposes of that latter Act is included in the Explanatory Statement.
Overview
The High Court Amendment (Fees and Other Matters) Rules 2022, enacted on 7 March 2022, were signed by the Justices of the High Court of Australia under the authority of the Judiciary Act 1903, the Commonwealth Electoral Act 1918 and the High Court of Australia Act 1979. These rules address the need to update the fees that solicitors may charge for services rendered in High Court proceedings. The adjustments to the fees are based on recommendations from the Joint Costs Advisory Committee (JCAC), which reviews and advises on the quantum of costs annually. The JCAC recommended a 2.5% increase in costs for 2021, along with the deferred 0.97% increase from 2020, following its Fourteenth Report on Legal Practitioners’ Costs. These increases take effect from 1 May 2022, applying to all work done by solicitors after 30 April 2022. Additionally, the rules repeal Part 43 of the High Court Rules 2004, which dealt with applications and appeals from the Supreme Court of Nauru, as a result of the termination of the Agreement between Australia and Nauru and the establishment of the Nauru Court of Appeal.
Scope and Application
The High Court Amendment (Fees and Other Matters) Rules 2022, signed by the Justices of the High Court of Australia, amend the fees charged by solicitors who are entitled to practise in the High Court. These amendments apply to work done and services performed by solicitors after 30 April 2022. The fees outlined in Schedule 2 of the High Court Rules 2004 were last varied by the High Court Amendment (Electronic Filing and Other Matters) Rules 2019 and were intended to reflect movements in wages and salaries and other costs of solicitors' practices, as recommended by the Joint Costs Advisory Committee. In light of the economic impacts of the COVID-19 pandemic, the Committee deferred a recommended increase for 2020 and recommended a 2.5% increase for 2021, which the High Court has accepted. Additionally, the rules repeal Part 43 of the High Court Rules 2004, which related to applications and appeals from the Supreme Court of Nauru, as the Nauru (High Court Appeals) Act 1976 has been repealed and the Agreement between Australia and Nauru has terminated. These rules apply to the Commonwealth and are made under the Judiciary Act 1903, the Commonwealth Electoral Act 1918, and the High Court of Australia Act 1979.
Key Provisions
The High Court Amendment (Fees and Other Matters) Rules 2022, signed on 7 March 2022, bring about significant changes to the High Court Rules 2004, particularly concerning the fees charged by solicitors and the procedural rules for appeals from the Supreme Court of Nauru. The operative sections of these Amendment Rules, particularly those affecting fees, are detailed in Part 1, Schedule 2 (sections 1 and 2). This part introduces new fee structures for solicitors, effective from 1 May 2022, following recommendations by the Joint Costs Advisory Committee (JCAC). These new rates will apply to all work and services performed by solicitors after 30 April 2022. The amendments reflect a 2.5% increase in fees, in addition to a deferred 0.97% increase from the previous year, taking into account the economic impacts of the COVID-19 pandemic.
The obligations and requirements imposed by these Amendment Rules are primarily centred around the updated fee structures for solicitors in the High Court. Solicitors are now mandated to adhere to the new fee rates set out in Schedule 2, which will be applied to costs incurred from 1 May 2022 onwards. The JCAC’s recommendations have been incorporated into the High Court Rules, ensuring that these new rates are systematically applied. Furthermore, the procedural changes outlined in Part 2, concerning the repeal of Part 43 of the High Court Rules, reflect the legislative shift following the termination of the Agreement between Australia and Nauru, which led to the establishment of the Nauru Court of Appeal and the subsequent repeal of the Nauru (High Court Appeals) Act 1976. This repeal signifies the end of the High Court’s jurisdiction over appeals from the Supreme Court of Nauru, aligning the procedural rules with current legislative realities.
The Amendment Rules do not explicitly outline specific offences, penalties, or civil/criminal consequences for breaches within their provisions. However, it is implicit that non-compliance with the updated fee structures by solicitors could lead to disputes over the taxation of costs, potentially resulting in litigation or complaints to the relevant regulatory bodies. The repeal of Part 43 also means that any attempts to proceed with appeals from the Supreme Court of Nauru under the old procedural framework could be deemed invalid, potentially leading to procedural errors in court. Although the Rules themselves do not detail penalties, any resultant legal disputes or procedural errors could attract the standard legal consequences applicable under the High Court Rules and other relevant legislation.