High Court of Australia (Fees) Regulations 2022

The Regulations revolve around several key definitions and structural concepts. “Filing fee” means a fee in any of items 101 to 107 of Schedule 1, covering applications for constitutional or other writs, writs of summons or petitions, civil leave or special leave applications, criminal special leave applications, application initiating a proceeding (including removals under section 40 of the Judiciary Act), civil notices of appeal, and criminal notices of appeal. “Hearing fee” means a fee in any of items 108 to 111, covering hearings before the Full Court or a single Justice. “Half day” is defined as a period of up to 3 hours in a scheduled hearing day (section 3B). “Liable person” is defined by reference to Division 2.2, which assigns liability: the person for whom the document is filed pays the filing fee; the person who commences the proceeding pays the hearing fee (subsection 8(2)-(3)); and the person who requests a document or service pays that fee (subsection 8(6)). The Court, a Justice, or a Registrar may order a different party to pay the hearing fee (subsection 8(5)). A central concept is the definition of “corporation” (section 4). It includes companies, bodies corporate, unincorporated bodies that can sue or be sued or hold property in the name of a secretary or office holder, public authorities (including Commonwealth, State and Territory departments, Ministers, statutory office holders), corporations registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006, and trade unions. However, it expressly excludes a corporation sole that is not a public authority, a small business (≤19 employees and <$2 million turnover), and an unincorporated not-for-profit association. This exclusion means those entities are not treated as corporations for fee purposes, so they pay the lower individual fee. “Publicly listed company” means a company listed on any stock exchange or financial market in any country (section 3B). The fee payable depends on the status of the liable person (or of any liable person if multiple are liable - see subsection 7(3)). If any liable person is a publicly listed company, the highest fee (the publicly listed company rate) applies; if any is a corporation but not publicly listed, the corporation fee applies; if none, the default (individual) fee applies. The “highest fee” rule in subsection 7(3) prevents fee-splitting to obtain a lower rate. The Regulations also create a “financial hardship fee” available only to individuals (section 12). A Registrar may determine that an individual may pay a reduced fee (one-third of the full fee, rounded down to the nearest $5, per section 16(6)) if paying the full fee would cause financial hardship, considering the individual’s income, day-to-day living expenses, liabilities and assets. The instrument provides for annual CPI indexation (section 16). For fees other than hardship fees, the fee is increased on each 1 July by multiplying the current fee by the ratio of the latest March quarter CPI number to the earlier March quarter CPI number, with rounding rules (to nearest multiple of $5 if $50 or more, nearest dollar if less, with 50 cents rounding down). The hardship fee is then set at one-third of the indexed amount rounded down to the nearest multiple of $5. The Regulations also incorporate the Rules of Court made under section 86 of the Judiciary Act; terms used in the Regulations and the Rules have the same meaning (subsection 3B(2)). This cross-reference is important for terms like “proceeding” (which includes an application to commence a proceeding) and for identifying documents that trigger fees.

The Regulations affect any person or entity that engages with the High Court of Australia. The primary categories are: (a) individual litigants - persons who are not corporations. They pay the standard fee listed in Schedule 1 (for individuals). Individuals may also be eligible for a financial hardship fee (section 12) or an exemption (section 11). (b) Corporations - as defined in section 4. This includes a wide range of entities: companies, bodies corporate, unincorporated bodies that can sue or be sued, public authorities (Commonwealth, State, Territory departments, Ministers, statutory office holders), Aboriginal and Torres Strait Islander corporations, and trade unions. Corporations pay a higher fee than individuals generally (e.g. item 101: $11,020 for a corporation vs $3,655 for an individual). (c) Publicly listed companies - any company listed on any stock exchange or financial market globally. They pay the highest fee (e.g. item 101: $16,545). (d) Small businesses - defined as a business with no more than 19 employees and total turnover of less than $2 million each year. They are expressly excluded from the definition of corporation (section 4(2)(b)), so they are treated as individuals for fee purposes and pay the lower rate. (e) Unincorporated not-for-profit associations - also excluded from the definition of corporation, so they pay the individual rate. (f) Exempt persons - under section 11, a person is exempt from paying a filing fee or hearing fee if they have been granted legal aid; hold a Commonwealth health care card, pensioner concession card, seniors health card, or other health concession card; are serving a sentence of imprisonment or detained in a public institution or immigration detention; are under 18; are receiving youth allowance, Austudy, or ABSTUDY; or have received funding under Part 11 of the Native Title Act 1993 from a representative body or funded body. Note that the cardholder exemption does not extend to dependants of the cardholder (subsection 11(2)). (g) Registrars - the Chief Executive and Principal Registrar, Senior Registrar, Deputy Registrar, or persons acting in those roles. They have powers to determine financial hardship fees, defer fees, set alternative payment periods, and make decisions reviewable by the ART. (h) The Court and Justices - they have powers to direct otherwise on liability to pay hearing fees (section 8(1)), order another party to pay, vacate hearing days for non-payment (section 14(3)(c)), and make orders that no proceeding take place without leave if hearing fees are unpaid (section 14(3)(a)). (i) Third parties - a person other than the liable person may pay a hearing fee without affecting any power to make costs orders (section 14(3)(b)). Also, anyone can request documents or services and must pay the prescribed fees (Part 2 of Schedule 1). The Regulations also affect legal practitioners and accountants who advise clients on the costs of High Court litigation. The fee structure creates a significant cost difference between entity types: for example, the hearing fee for the first day before the Full Court (item 109) is $6,140 for an individual, $14,955 for a corporation, and $22,445 for a publicly listed company. This differential requires practitioners to correctly classify their client at the outset.

The Regulations impose specific duties and grant corresponding rights. Duty to pay fees - a liable person must pay the fee as set out in Schedule 1 at the times specified in section 12A. A filing fee must be paid before the document is filed (subsection 12A(1)). A hearing fee for items 108 or 109 (criminal appeal hearing or first day Full Court hearing other than leave/removal) must be paid at the time the document to which the hearing relates is filed (subsection 12A(2)). Item 110 fees (subsequent days) must be paid no later than 2 business days before the hearing day if the hearing day is at least 2 business days after filing; otherwise by 9.30 am on the hearing day (subsection 12A(3)). Item 111 fees (single Justice hearing for each half day) have similar timing (subsection 12A(4)). Fees for documents or services must be paid before the document is obtained or service provided (subsections 12A(5)-(6)). Right to seek deferral - a Registrar may defer payment of a filing fee or hearing fee if the need to file or hear is so urgent it overrides the requirement to pay upfront (section 13). Deferral is only available once per fee and the fee must be paid within 28 days (or another written period approved by the Registrar) (subsections 13(3)-(4)). Right to financial hardship fee - an individual who would suffer financial hardship from paying the full fee may apply to a Registrar to pay the designated financial hardship fee instead (section 12). The Registrar must consider the individual’s income, day-to-day living expenses, liabilities and assets. This is a discretion, not an entitlement. Right to exemption - certain persons are automatically exempt from paying a filing fee or hearing fee if they fall within the categories in section 11 (legal aid, concession card holders, prisoners, minors, welfare recipients, native title funding recipients). No application is needed; the exemption operates at the time the fee is payable. Right to refund - a person is entitled to a refund if they pay more than required (section 15(1)). For hearing fees, a refund is available if: the person notifies the Registrar in writing that the hearing will not occur, and the hearing does not occur or is only for formal orders; or the hearing day has not been fixed and the proceeding is discontinued or otherwise determined (subsection 15(3)). The notification must meet timing requirements: if the hearing day was fixed less than 10 business days before the hearing, notify at least 2 business days before; otherwise notify at least 10 business days before (subsection 15(4)). Right to ART review - a person who is refused a financial hardship determination may apply to the Administrative Review Tribunal for review of the Registrar’s decision (section 17). The Registrar must give a notice with reasons and review rights within 28 days. Failure to include the statement about review rights does not invalidate the decision (subsection 17(5)). Duty not to obstruct filing - if a filing fee is not paid, the document must not be filed (section 14(2)). Duty to comply with Court orders - if a hearing fee is unpaid, any party may apply for an order that no proceeding take place without leave, or the Court may vacate the hearing day (section 14(3)). Right of third parties to pay - any person may pay an unpaid hearing fee without affecting the Court’s power to later make costs orders (section 14(3)(b)). This is useful for ensuring a hearing proceeds when the liable person defaults.

The Regulations do not create criminal offences or pecuniary penalties. Instead, enforcement operates through procedural bars and civil debt recovery. Non-payment of filing fee or document/service fee: the document must not be filed, and the document or service must not be provided, until the whole fee is paid (section 14(2)). This is an administrative bar; the Registry will simply refuse to accept the document. Non-payment of hearing fee: the Court or a Justice may, on application by a party, order that no proceeding (or no proceeding other than a specified proceeding) is to take place except by leave (subsection 14(3)(a)). This is a significant power that can halt litigation entirely. The Court may also vacate the hearing day (subsection 14(3)(c)). Debt due to the Commonwealth: any fee not paid in accordance with the instrument is recoverable by the Commonwealth as a debt due to the Commonwealth (section 18). This means the Commonwealth can sue the liable person to recover the unpaid amount as a civil debt. There is no time limit specified in the Regulations, but general limitation periods would apply. Third-party payment does not waive costs powers: if a person other than the liable person pays the fee, that payment does not affect any power of the Court or a Justice to make an order for costs for the fee (subsection 14(3)(b)). So the liable person may still be ordered to reimburse the payer in costs. Deferral only once: if a fee is deferred and not paid, no further deferral is available (subsection 13(4)). The fee becomes immediately payable and subject to enforcement. Consequences of overpayment: the person is entitled to a refund of the excess (section 15(1)). This is a right, not a penalty. Failure to notify for refund: if a person cancels a hearing but does not notify the Registrar within the required time, they forfeit the right to a refund (section 15(3)-(4)). That is a loss of entitlement. No explicit provision for late payment: the instrument does not impose a surcharge or interest for late payment. The fee is simply recoverable as a debt. Effect of international conventions: if an international convention in force for Australia provides that no fee is payable, then the fee is not payable (section 10(2)). This overrides the general liability. Interlocutory proceedings: fees mentioned in items 108 to 110 are not payable in relation to an interlocutory proceeding (section 10(3)). However, item 111 (single Justice hearing fee) does apply to interlocutory proceedings, and its liability is on the person who commences the interlocutory proceeding (subsection 8(4)). Delivery of judgment: a hearing fee is not payable if the sole purpose of the hearing is delivery of a reserved judgment (section 10(4)). This prevents double-charging for the judgment hearing when the substantive hearing fee was already paid.

The Regulations are made under the Judiciary Act 1903, specifically section 88, which authorises regulations prescribing fees in relation to the High Court. The Regulations operate within the broader framework of the High Court of Australia Act 1979, under which the Chief Executive and Principal Registrar and other Registrars are appointed (section 3B definition of Registrar). The High Court Rules made under section 86 of the Judiciary Act are directly incorporated: subsection 3B(2) provides that a term or expression used in the Regulations and in the Rules has the same meaning. This means that concepts like “proceeding”, “document”, “hearing”, “interlocutory proceeding” derive their meaning from the Rules. Acts Interpretation Act 1901 is relevant through section 7, which preserves liability under repealed regulations (note to section 21). The Legislation Act 2003 applies to the making and operation of the Regulations. The Administrative Review Tribunal Act (formerly AAT) is engaged through section 17: decisions under section 12 (financial hardship) are reviewable by the ART. The Social Security Act 1991 is referenced for youth allowance and Austudy payments as grounds for exemption (section 11(1)(e)). The ABSTUDY Scheme is also referenced. The Migration Act 1958 is referenced for immigration detention (section 11(1)(c)). The Native Title Act 1993 is referenced for funding under Part 11 (section 11(1)(f)). The Corporations (Aboriginal and Torres Strait Islander) Act 2006 is referenced in defining corporation (section 4(1)(e)). The Public Governance, Performance and Accountability Act 2013 is referenced in defining non-corporate Commonwealth entities (section 4(3)(a)(iii)). The Parliamentary Service Act 1999 is referenced for Departments of the Parliament (section 4(3)(a)(ii)). International conventions are referenced in section 10(2): if an international convention in force for Australia provides that no fee is payable, the fee is not payable. This may interact with bilateral or multilateral treaties on judicial cooperation or access. The Regulations also interact with costs orders: the power of the Court to make costs orders is preserved despite a third party paying a hearing fee (section 14(3)(b)). The fee paid may be recoverable as costs. The Corporations Act 2001 is not a prerequisite: subsection 4(6) provides that a corporation need not be subject to the Corporations Act to be a corporation for the purposes of the instrument. This means foreign entities or statutory corporations are included. The definition of small business (≤19 employees, <$2 million turnover) borrows from common business metrics but is not tied to any specific legislation. The CPI indexation mechanism (section 16) relies on statistics published by the Australian Statistician under the Census and Statistics Act 1905.

The Regulations themselves are a single instrument: the High Court of Australia (Fees) Regulations 2022. The source does not provide any subsequent amendment instruments. The Regulations replaced the High Court of Australia (Fees) Regulation 2012 (the old regulations) on 1 April 2023. The amendment history is therefore limited to: the old regulations ceased on 31 March 2023; the new Regulations commenced on 1 April 2023. However, the instrument contains transitional provisions that preserve actions taken under the old regulations (sections 22 and 23). For example, a thing done under the old regulations that could be done under the new Regulations has effect as if done under the new Regulations (section 22). Also, functions and powers under the new Regulations may be exercised in relation to conduct or events that occurred before 1 April 2023 (section 23). The Regulations do not include a table of amendments or a history of subsequent changes. As a legislative instrument, any future amendments would be made by regulation amendments and would be published separately. The instrument itself may be later amended to adjust fees or add new items. The CPI indexation mechanism in section 16 operates automatically each 1 July and does not require amending the instrument itself; the fee amounts in Schedule 1 are the base amounts as at 1 April 2023, subject to automatic increase. Therefore, the current fee amounts may differ from those scheduled due to indexation, and practitioners should check the latest fee schedule published by the High Court. The instrument’s name and commencement are clear, and no sunsetting date is indicated.

The source text does not refer to any cases. There is no litigation history mentioned in the Regulations themselves. As a fees regulation, disputes about the application of the instrument would typically be dealt with through internal review (Registrar decision, then ART review under section 17) rather than court proceedings. It is possible that the meaning of defined terms such as “corporation”, “small business”, or “publicly listed company” could be litigated, but no cases are cited. Similarly, the operation of the highest-fee rule (section 7(3)) or the financial hardship test (section 12) could give rise to judicial review. However, the Regulations do not reference any decided cases. Therefore, we cannot report any litigation history from the provided source.

1. The “highest fee” rule traps multiple parties: if a fee is payable by more than one person (e.g., joint applicants for a writ), and at least two of those persons are different categories (e.g., one individual, one corporation, one publicly listed company), the only fee payable is the highest of the amounts that apply to any of them (subsection 7(3)). This means you cannot structure a proceeding to have an individual pay the lower fee; the highest fee swallows all.

2. “Corporation” is broader than expected: it includes trade unions, public authorities, and unincorporated bodies that can sue or be sued. A trade union or a government department will pay the corporation fee, not the individual fee, unless it qualifies as a small business. Small businesses are excluded from the definition (section 4(2)(b)), but only if they meet both tests: no more than 19 employees and total turnover less than $2 million per year. If a business has 20 employees but turnover of $1.5 million, it is a corporation. If it has 15 employees but turnover of $2.1 million, it is also a corporation. The two limbs are cumulative.

3. Financial hardship is only for individuals: a corporation cannot apply for a financial hardship fee, no matter how small or unprofitable. Only an individual can (section 12(1)). This is a significant limitation for small businesses that are incorporated.

4. Deferral is a one-time urgency concession: the Registrar may defer payment only if the need to file or hear is so urgent that it overrides the requirement to pay when the fee would otherwise be payable (section 13(2)). This is a high threshold. And once the fee is deferred, it must be paid within 28 days (or another written period), and the fee can be deferred only once (subsection 13(4)).

5. Refund of hearing fees requires strict timing: to get a refund for a cancelled hearing, you must notify the Registrar in writing within specific windows: if the hearing day was fixed less than 10 business days before the hearing, you must notify at least 2 business days before the hearing day. If 10 or more business days before, you must notify at least 10 business days before (subsection 15(4)). Missing these deadlines forfeits the refund. Also, if the hearing does occur (even for formal orders) but you notified, you still may get a refund if the hearing is only for formal orders (subsection 15(3)(a)(ii)).

6. Exemptions do not extend to dependants: a person who holds a health care card is exempt, but a dependant of that person is not (subsection 11(2)). So a spouse or child named on the card cannot rely on it.

7. The “proceeding” definition includes applications to commence a proceeding: so filing fees apply not only to the originating process but also to any application that seeks to start a proceeding. This is relevant for removal applications under section 40 of the Judiciary Act (item 105).

8. No fee for delivery of reserved judgment: but only if that is the sole purpose of the hearing (section 10(4)). If the hearing also deals with other matters (e.g., costs), a hearing fee may be payable.

9. Interlocutory proceedings: fees in items 108 to 110 are not payable for interlocutory proceedings (section 10(3)). However, item 111 (single Justice hearing fee for each half day) does apply to interlocutory proceedings, and liability is on the person who commences the interlocutory proceeding (subsection 8(4)). So there is still a cost.

10. Fees are indexed annually but the Schedule amounts are base amounts: the figures in Schedule 1 are as at 1 April 2023. Since 1 July 2023, and each 1 July thereafter, fees increase by CPI. The increased amounts are not published in the Regulations; practitioners must apply the formula in section 16 to calculate current fees. The rounding rules can cause small changes. For example, if a fee is $50 after CPI adjustment, it is rounded to the nearest multiple of $5. If it is $52, it rounds to $50? No, nearest multiple of $5: $52 is closer to $50 than $55, so $50. If $53, rounds to $55. 50 cents rounds down.

To comply with the High Court of Australia (Fees) Regulations 2022, practitioners and litigants should follow these steps:

1. Identify the correct fee category: Classify the client as an individual, a corporation (including all entities in section 4(1)), a publicly listed company, a small business (which is treated as an individual), or an unincorporated not-for-profit association (treated as individual). If the client is a corporation, determine whether it is a “publicly listed company” (any country, any exchange). If multiple parties are liable for the same fee, identify the highest category among them - that determines the fee.

2. Determine if an exemption applies: Check if the client qualifies for automatic exemption from filing and hearing fees under section 11. This includes legal aid recipients, concession card holders, prisoners, detainees, minors, welfare recipients, and native title funding recipients. If exempt, no fee is payable. Note that the exemption does not apply to document/service fees (Part 2 of Schedule 1) - only filing and hearing fees.

3. Consider financial hardship: If the client is an individual and does not qualify for an exemption but cannot afford the fee, apply to a Registrar for a determination to pay the financial hardship fee. Provide evidence of income, day-to-day living expenses, liabilities and assets (section 12(2)). The Registrar’s decision is discretionary. If refused, the client may apply to the ART for review (section 17). Ensure the Registrar gives a notice with reasons and review rights within 28 days.

4. Pay the fee on time: Use the payment deadlines in section 12A. For filing fees, pay before filing. For hearing fees, pay at the time of filing (items 108, 109) or by the specified deadline (items 110, 111). For documents and services, pay before obtaining. Late payment may result in refusal to file, vacation of the hearing, or an order that no proceeding take place without leave.

5. Apply for deferral if urgent: If the need to file or hear is so urgent that paying upfront is impractical (e.g., last-minute injunction), request a Registrar to defer payment under section 13. This is only available once per fee, and the fee must be paid within 28 days (or another written period). There is no deferral for document/service fees.

6. Keep records: Maintain receipts and correspondence with the Registry. For hearing fee refunds, keep a record of the written notice to the Registrar and the date of notification. Ensure the notice meets the timing requirements of section 15(4). If the proceeding is discontinued before a hearing day is fixed, document that to support a refund claim.

7. Monitor annual fee increases: The base fees in Schedule 1 increase on each 1 July by CPI. Practitioners should calculate the current fee using the formula in section 16 before advising clients or making payments. Check the latest CPI numbers published by the Australian Statistician. The rounding rules (nearest $5 if $50 or more, nearest dollar if less) apply.

8. Understand transitional provisions: For proceedings commenced before 1 April 2023, the old 2012 regulations apply to liabilities incurred before that date (section 21). However, the new Regulations apply to fees for documents filed on or after 1 April 2023, and services provided on or after that date. If a deferral or hardship determination was made under the old regulations, it may still have effect under the new Regulations (sections 22-23).

9. Seek clarification if classification is uncertain: The definitions in section 4 can be complex. For example, a trade union is a corporation, but a small business is not. An unincorporated sports club may be a not-for-profit association excluded from corporation, but a body that can sue or be sued may still be included. Consult the Regulations and, if necessary, seek guidance from the High Court Registry.

10. Review costs recovery: If fees are paid by a party who may later recover them as costs, note that the Court’s power to make costs orders is unaffected even if a third party paid the hearing fee (section 14(3)(b)). Include the fee in any costs schedule.