EXPLANATORY STATEMENT
HIGH COURT AMENDMENT (FEES) RULES 2017
6 NOVEMBER 2017
These Amendment Rules of Court, signed by the Justices of the High Court of Australia on 6 November 2017, 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 the High Court Amendment (Fees) Rules 2016 F2016L01740 made on 8 November 2016, and which came into operation on 1 January 2017.
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 2017 annual review, the JCAC wrote 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. Following its annual review, the JCAC provided a report in September 2017 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 1.9% 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 1.9% to the solicitors’ costs as set out in Schedule 2 of the High Court Rules 2004, which is to come into operation on 1 January 2018 and will apply in respect of all work done and services performed by solicitors after 31 December 2017.
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) Rules 2017, enacted on 6 November 2017, were established 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. These rules were introduced to address the need for updating the fees charged to solicitors for their services in the High Court, in line with changes in the economic environment and the costs associated with legal practices. The Joint Costs Advisory Committee (JCAC) plays a key role in this process, reviewing and recommending adjustments to the fees annually. Following its 2017 review, the JCAC recommended a 1.9% increase to the costs set out in Schedule 2 of the High Court Rules 2004, which the Court has accepted. The new fees are set to take effect from 1 January 2018, covering all work and services performed by solicitors after 31 December 2017. The policy objective of these amendments is to ensure that the fees charged reflect current economic conditions while maintaining the integrity and efficiency of legal services provided in the High Court.
Scope and Application
The High Court Amendment (Fees) Rules 2017 apply to the fees that solicitors, entitled to practise in the High Court, may charge and be allowed on taxation of costs in proceedings within the court. These rules were 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. The changes proposed in these Amendment Rules, which are set to take effect from 1 January 2018, follow recommendations from the Joint Costs Advisory Committee (JCAC), an entity established to review annually and recommend variations in the quantum of costs for the High Court of Australia, the Federal Court of Australia, the Family Court of Australia, and the Federal Circuit Court of Australia. The JCAC's recommendations are based on movements in wages and salaries and other costs of solicitors’ practices, and they were reached after consultations with various legal bodies and public notices. This amendment applies nationally across Australia and affects all work and services performed by solicitors post 31 December 2017. The rules are not considered legislative instruments under the Legislative Instruments Act 2003, and no statement of compatibility is required under the Human Rights (Parliamentary Scrutiny) Act 2011.
Key Provisions
The High Court Amendment (Fees) Rules 2017 (F2017L01459) were made 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. These Amendment Rules primarily address the costs that solicitors, who are entitled to practise in the High Court, may charge and be allowed for taxation of costs by the Taxing Officer of the Court. These fees are specified in Schedule 2 of the High Court Rules 2004, and were last amended by the High Court Amendment (Fees) Rules 2016 (F2016L01740), which came into effect on 1 January 2017.
The Joint Costs Advisory Committee (JCAC), established in 2007, reviewed the quantum of costs 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. In conducting its reviews, the JCAC applies a formula that takes into account movements in wages and salaries and other costs of solicitors' practices. The JCAC's 2017 annual review involved consultations with various stakeholders, including the Commonwealth Attorney-General’s Department, the Law Council of Australia, and others, as outlined in the Explanatory Statement. Following its review, the JCAC recommended a 1.9% increase to the solicitors' costs set out in the Rules of each Court.
The High Court has agreed to the JCAC's recommendation of a 1.9% increase in the costs set out in Schedule 2 of the High Court Rules 2004. This increase will come into operation on 1 January 2018 and will apply to all work done and services performed by solicitors after 31 December 2017. The Legislative Instruments Act 2003 specifies that Rules of Court made for the High Court of Australia are not legislative instruments, and the Human Rights (Parliamentary Scrutiny) Act 2011 does not apply to such Rules. Consequently, no statement of compatibility is included in the Explanatory Statement.
The obligations under these Amendment Rules primarily concern the updating of the fees schedule to reflect the agreed 1.9% increase, which solicitors must adhere to when charging for their services in the High Court. The Rules impose a requirement on solicitors to ensure that their fees align with the updated amounts specified in Schedule 2 of the High Court Rules 2004. This requirement ensures consistency and transparency in the cost structure for legal services provided in the High Court.
Breach of these Rules, such as charging fees that do not comply with the updated amounts, may have legal consequences. While the Explanatory Statement does not explicitly outline specific offences or penalties for such breaches, it is reasonable to infer that non-compliance could lead to disputes regarding the taxation of costs, potentially resulting in legal action to rectify the situation. The High Court may take appropriate measures to enforce compliance with the updated fees schedule, ensuring that solicitors adhere to the stipulated rates.