EXPLANATORY STATEMENT
HIGH COURT AMENDMENT (FEES) RULES 2018
3 DECEMBER 2018
These Amendment Rules of Court, signed by the Justices of the High Court of Australia on 3 December 2018, 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 2017 F2017L01459 made on 6 November 2017, and which came into operation on 1 January 2018.
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 2018 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 2018 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 2.1% 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 2.1% 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 2019 and will apply in respect of all work done and services performed by solicitors after 31 December 2018.
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 2018 were enacted on 3 December 2018 by the Justices of the High Court of Australia 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. These rules address the need for periodic adjustments to the fees charged by solicitors who are entitled to practise in the High Court. The Joint Costs Advisory Committee (JCAC), established to review and recommend variations in the quantum of costs for solicitors in several Australian courts, had recommended a 2.1% increase in fees based on their annual review. The High Court has agreed to this recommendation, which will come into effect on 1 January 2019, applying to all work and services performed by solicitors after 31 December 2018. The purpose of these amendments is to ensure that the fees charged remain reflective of the actual costs incurred by solicitors' practices, considering factors such as movements in wages and salaries.
Scope and Application
The High Court Amendment (Fees) Rules 2018 applies to the fees that solicitors who are entitled to practise in the High Court of Australia can charge and be allowed on taxation of costs in proceedings before the Court. These Amendment Rules were signed by the Justices of the High Court on 3 December 2018 and are made 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 fees outlined in Schedule 2 of the High Court Rules 2004 are to be increased by 2.1% for all work done and services performed by solicitors after 31 December 2018, as recommended by the Joint Costs Advisory Committee. The Committee’s recommendation takes into account annual reviews of movements in wages and salaries and other costs of solicitors’ practices, and submissions from relevant stakeholders including the Commonwealth Attorney-General’s Department, the Law Council of Australia, the National Association of Community Legal Centres, and National Legal Aid. The Rules are not subject to the Legislative Instruments Act 2003 or the Human Rights (Parliamentary Scrutiny) Act 2011.
Key Provisions
The High Court Amendment (Fees) Rules 2018 (F2018L01681) modify the fees that solicitors may charge and be allowed for their services in the High Court of Australia, as outlined in Schedule 2 of the High Court Rules 2004 (paragraph 1). These changes, which were recommended by the Joint Costs Advisory Committee (JCAC) and accepted by the Court, include an increase of 2.1% to the fees for all work done and services performed by solicitors after 31 December 2018, effective from 1 January 2019 (paragraph 2). The JCAC, established in 2007, annually reviews and recommends variations to the fees based on changes in wages, salaries, and other costs in solicitors' practices. This year's review considered submissions from various legal bodies and was published in September 2018 (paragraph 4).
The obligations imposed by these rules are primarily on the solicitors who practise in the High Court. They must adhere to the new fee schedule when billing clients for their services (paragraph 2). Additionally, clients who engage these solicitors must be informed of the new fee rates, which apply to all work and services performed after the specified date (paragraph 3). It is also important for the solicitors to ensure that their billing practices comply with the updated rates as stipulated in Schedule 2 of the High Court Rules 2004 (paragraph 5).
There are no specific offences, penalties, or civil or criminal consequences outlined in these Amendment Rules for breaching the fee schedule (paragraph 6). However, non-compliance with the updated fees could lead to disputes between solicitors and their clients, potentially resulting in legal challenges regarding the fairness and legality of the fees charged (paragraph 7). The High Court Amendment (Fees) Rules 2018 do not fall under the scope of the Legislative Instruments Act 2003 or the Human Rights (Parliamentary Scrutiny) Act 2011, and thus, no statement of compatibility is included in the Explanatory Statement (paragraph 8).