EXPLANATORY STATEMENT
Select Legislative Instrument No. 178, 2015
Issued by the authority of the
Justices of the High Court of Australia
AMENDMENTS TO THE HIGH COURT RULES 2004
These Amendment Rules of Court, signed by the Justices of the High Court of Australia on 3 November 2015, are made by the Justices under the Judiciary Act 1903, the Commonwealth Electoral Act 1918, the Nauru (High Court Appeals) Act 1976 and the High Court of Australia Act 1979.
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 Select Legislative Instrument 2014 No. 139 made on 9 September 2014, and which came into operation on 1 January 2015.
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.
In its 2015 annual review, the JCAC wrote to the Commonwealth Attorney-General’s Department, the Law Council of Australia, the National Association of Community Legal Centres, the Law Society of NSW and National Legal Aid inviting them and their respective constituent bodies to make submissions to the review. A notice of the review was also placed on the website of each court. Following its annual review, the JCAC provided a report in September 2015 to the High Court of Australia, the Federal Court of Australia, the Family Court of Australia and the Federal Circuit Court of Australia recommending an increase of 3% to the solicitors’ costs provided for in the Rules of each Court. Issues raised in consultations were addressed in the report.
The Court has agreed to the recommendation of the Committee for an increase of 3% to the solicitors’ costs as set out in Schedule 2 of the High Court Rules 2004, which is to come into operation on Friday, 1 January 2016 and will apply in respect of all work done and services performed by solicitors after Thursday, 31 December 2015.
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 Amendments to the High Court Rules 2004, issued by the Justices of the High Court of Australia on 3 November 2015, aim to update the quantum of costs that solicitors who practise in the High Court may charge and be allowed on taxation of costs by the Taxing Officer of the Court. These amendments were enacted under the authority of the Judiciary Act 1903, the Commonwealth Electoral Act 1918, the Nauru (High Court Appeals) Act 1976, and the High Court of Australia Act 1979. The policy objective is to reflect changes in the costs associated with the practice of law by adjusting the fees in line with movements in wages and salaries and other costs of solicitors’ practices, as recommended by the Joint Costs Advisory Committee. This adjustment is intended to ensure that the costs remain fair and reflective of the current economic environment, thereby maintaining the integrity and accessibility of legal services provided in the High Court.
Scope and Application
The amendments to the High Court Rules 2004, made under the authority of the Justices of the High Court of Australia, pertain to the taxation of costs for solicitors entitled to practise in the High Court. These amendments, which include an increase in the allowable costs by 3%, are applicable nationwide as they pertain to the federal jurisdiction of the High Court of Australia. The changes are effective from 1 January 2016 for work done and services performed after 31 December 2015. The Joint Costs Advisory Committee, which consists of representatives from the High Court, Federal Court, Family Court, and Federal Circuit Court, recommended this increase based on their annual review considering factors such as movements in wages, salaries, and other costs associated with solicitors’ practices. This review process involved consultations with various legal bodies and submissions from relevant stakeholders, ensuring a comprehensive evaluation before the recommendation was made to the courts.
Key Provisions
The main operative sections of the Amendment Rules of Court (F2015L01762) pertain to the adjustments in the taxation of costs for solicitors entitled to practice in the High Court, as outlined in Schedule 2 of the High Court Rules 2004. This amendment follows the recommendation of the Joint Costs Advisory Committee (JCAC), which proposed a 3% increase in costs based on its annual review. This adjustment is intended to reflect movements in wages and salaries, as well as other costs associated with solicitors' practices. These amendments will take effect on Friday, 1 January 2016, and will apply to all work and services performed by solicitors after Thursday, 31 December 2015 (Section 9).
The obligations and requirements imposed by these Amendment Rules are primarily administrative in nature. They demand that the Taxing Officer of the Court adjust the taxation of costs for solicitors in accordance with the new rates set out in Schedule 2 of the High Court Rules 2004. Additionally, the JCAC is required to continue its annual reviews and provide recommendations to the relevant courts, ensuring that the costs are regularly reviewed and updated to reflect the current economic conditions. These rules also mandate that any submissions on the review of costs be considered by the JCAC before any recommendations are made to the courts.
The Amendment Rules do not explicitly outline any offences, penalties, or civil or criminal consequences for breaches. However, any failure by the Taxing Officer or the relevant courts to comply with these rules could potentially lead to disputes or challenges regarding the taxation of costs in legal proceedings. This could result in delays or complications in the legal process, although specific legal or financial penalties are not outlined in the text. It is also important to note that these Rules of Court do not fall under the Legislative Instruments Act 2003 or the Human Rights (Parliamentary Scrutiny) Act 2011, and therefore no statement of compatibility with human rights is required.