Explanatory Statement
High Court Amendment (Forms and Other Matters) Rules 2022
18 November 2022
These Amendment Rules of Court, signed by the Justices of the High Court of Australia on 18 November 2022, are made by the Justices under the Judiciary Act 1903, the Commonwealth Electoral Act 1918 and the High Court of Australia Act 1979.
Schedule 1 – Amendments relating to forms
Section 86(1)(d) of the Judiciary Act 1903 (Cth) was amended by the Courts and Tribunals Legislation Amendment (2021 Measures No 1) Act 2022 to clarify the power of the Court to prescribe court forms other than in the Rules of Court. This allows the Court to remove the court forms from the Rules of Court and to prescribe the forms by Practice Direction. This approach reflects modern best practice for prescribing court forms and is consistent with the practice adopted by other Commonwealth courts.
Rule 1.09.2 of the Amendment Rules provides that the Justices of the Court, or a majority of them, may approve a form for the purposes of the Rules. Forms will be approved by the Court and published in a Practice Direction rather than through an amendment to the High Court Rules 2004.
Schedule 2 – Amendments relating to fees
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 and Other Matters) Rules 2022 F2022L00322 made on 7 March 2022 and apply to work done and services performed by solicitors after 1 May 2022.
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 federal courts. It comprises representatives of the High Court of Australia, the Federal Court of Australia, the Federal Circuit and Family Court of Australia (Division 1) and the Federal Circuit and Family Court of Australia (Division 2). 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 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 each of them, and their respective constituent bodies or State/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. Following its review, the JCAC published its Fifteenth Report on Legal Practitioners’ Costs in September 2022. Issues raised in submissions received by the Committee were addressed in the report.
In its report the Committee recommended an increase of 4% to the current scale of costs specified in the Rules of each court. The Court has accepted the recommendation. The amounts in the Schedule have been increased by 4%, rounded to the nearest 5 cents. The increases to the solicitors’ costs provided in Schedule 2 will apply in respect of all work done and services performed by solicitors on or after 1 January 2023.
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 (Forms and Other Matters) Rules 2022, signed by the Justices of the High Court on 18 November 2022, were enacted to align the court's practices with modern standards, particularly in the management and publication of court forms. These rules were made by the Justices under the authority granted by the Judiciary Act 1903, the Commonwealth Electoral Act 1918, and the High Court of Australia Act 1979. The rules modernise the process by which court forms are prescribed, allowing them to be approved by the Court and published through a Practice Direction rather than requiring an amendment to the High Court Rules 2004. This approach is intended to streamline the management of court forms and reflect best practices observed in other Commonwealth courts. Additionally, the rules adjust the fees charged by solicitors for work done in the High Court, increasing them by 4% as recommended by the Joint Costs Advisory Committee following its 2021 review. This increase, rounded to the nearest 5 cents, applies to work done on or after 1 January 2023, taking into account inflation and other cost movements in the legal profession.
Scope and Application
The High Court Amendment (Forms and Other Matters) Rules 2022 applies to the Justices of the High Court of Australia and pertains to procedural aspects of the Court, specifically concerning forms and fees associated with legal proceedings. These Amendment Rules of Court are authorised by the Judiciary Act 1903, the Commonwealth Electoral Act 1918 and the High Court of Australia Act 1979. The rules address the prescription of court forms, which now may be approved by the Court and published in a Practice Direction rather than being included in the High Court Rules 2004. Additionally, the rules adjust the fees that solicitors may charge and be allowed on taxation of costs by the Taxing Officer of the Court, reflecting a 4% increase recommended by the Joint Costs Advisory Committee based on movements in wages and other costs. These amendments apply to all work done and services performed by solicitors on or after 1 January 2023. The scope of the Act is limited to the procedural adjustments within the High Court of Australia and does not extend to other courts or jurisdictions.
Key Provisions
The High Court Amendment (Forms and Other Matters) Rules 2022 (F2022L01483) introduces key changes to the management of forms and fees in the High Court of Australia. Section 86(1)(d) of the Judiciary Act 1903 (Cth), as amended by the Courts and Tribunals Legislation Amendment (2021 Measures No 1) Act 2022, allows the High Court to prescribe court forms outside of the Rules of Court, instead opting for Practice Directions. This change reflects modern practices and aligns with the procedures of other Commonwealth courts (Rule 1.09.2). The amendment means that forms will be approved by the Court and published in Practice Directions, rather than through amendments to the High Court Rules 2004. This streamlined approach aims to ensure that the forms are kept up to date and reflect the latest best practices.
The Amendment Rules also address changes to the fees payable to solicitors who are entitled to practise in the High Court. Schedule 2 of the High Court Rules 2004, which specifies the fees that solicitors can charge and be allowed on the taxation of costs, has been updated. These changes follow recommendations from the Joint Costs Advisory Committee (JCAC). The JCAC, which comprises representatives from various federal courts, conducts an annual review of the fees and submits its findings to the Court. After its review in 2021, the JCAC recommended a 4% increase to the scale of costs, a recommendation that the Court has accepted. The updated fee schedule, reflecting a 4% increase, will apply to work done and services performed by solicitors on or after 1 January 2023.
The Amendment Rules impose specific obligations on the parties involved, particularly solicitors who practise in the High Court. These solicitors must adhere to the updated fee schedule when charging for their services in High Court proceedings. Furthermore, the Court is obligated to approve and publish forms through Practice Directions, ensuring that all procedural forms are up-to-date and reflective of modern best practices. These obligations are crucial for maintaining the efficiency and fairness of legal proceedings in the High Court.
The Amendment Rules do not specify any new offences or penalties for breaches of the updated forms or fees provisions. However, non-compliance with the updated fee schedule or failure to use approved forms could potentially lead to disputes or challenges in the taxation of costs. While the Rules themselves do not outline specific penalties, any resulting disputes would be subject to the standard legal consequences and court decisions. It is important for all parties to familiarise themselves with the updated provisions to avoid any potential issues in their legal practice.