Supreme Court (Fees) Regulations 2018

The Regulations directly affect any person or entity that initiates or participates in litigation in the Supreme Court of Victoria, including plaintiffs, defendants, appellants, respondents, third parties, counterclaimants, executors, administrators, and applicants in probate matters. Law firms and legal practitioners must be aware of the fee structure to advise clients on litigation costs and to ensure timely payment of fees on behalf of their clients. Pro bono legal services providers, community legal centres, and organisations that administer pro bono schemes are affected because the waiver regime requires that a party be legally represented under a recognised pro bono scheme to qualify for automatic waiver (regulation 14).

The Regulations specifically affect persons who are eligible for concessions: holders of a health care card under the Social Security Act 1991. They also affect not-for-profit organisations and entities with low turnover, which may qualify as standard fee payers rather than corporate fee payers. The definition of standard fee payers is broad enough to include many small businesses and charities.

Parties to proceedings with fee payer status that does not match the actual status of multiple parties face the operation of regulation 9: where multiple parties make a joint request to file a document or render a service, a single fee is payable, and the highest applicable fee among the requesting parties governs. For example, if one plaintiff is a corporate fee payer and another is a standard fee payer, the corporate fee must be paid. This has practical implications for cost-sharing agreements and may influence which entity is named as lead party.

Persons who are incarcerated, under 18, or legally represented under pro bono schemes benefit from automatic fee waiver (regulation 14(1)). However, this waiver does not extend to certain fees under items 6.1, 6.3, 6.4 and 6.5 (e.g., out-of-hours service, search and inspection, photocopying) unless the Prothonotary is satisfied that payment would cause financial hardship under section 129(3) of the Supreme Court Act 1986. News media organisations and their representatives are exempt from fees under items 6.3 and 6.4 when searching, inspecting, retrieving or accessing material for news reporting purposes (regulation 14A, inserted in 2020).

Parties to proceedings in the Commercial Court are particularly affected by the higher fee scales and the additional entry fee for proceedings commenced outside a judge managed list. Parties to probate applications are affected by the estate value-based fee scale, which imposes substantial fees for larger estates (e.g., 1,029 fee units, or approximately $16,800 in 2024-2025 dollars, for estates of $7 million or more). Lawyers and law practices seeking assessment of costs under legal profession legislation are subject to flat fees that are the same across all payer categories, reflecting the professional context.

The Regulations impose a primary duty on any party, person or entity requesting a filing or service to pay the applicable fee at the time of filing or when the service is rendered, unless the Court orders otherwise or a specific timing provision applies. For setting down fees, the duty is on the party seeking the hearing - typically the party that commenced the proceeding or appeal, or another party if that party is the one seeking the hearing (e.g., a defendant with a counterclaim set down for trial). Setting down fees must be paid no later than six weeks before the trial date in the Trial Division (or the day after if less than six weeks remain), and at the time of delivery of the application book in the Court of Appeal.

Hearing fees are also the responsibility of the party seeking the hearing, with first-day hearing fees due no later than five days before the hearing date, and subsequent day hearing fees due the day before each hearing day. A hearing fee is not payable if the sole purpose of the hearing is the delivery of a reserved judgment. This means parties with long trials face escalating daily fees and must budget accordingly, especially in the Commercial Court where day 15 onward costs 467.9 fee units per day for corporate payers.

Mediation fees are payable by the party that commenced the proceeding, based on estimated duration, due five days before the mediation date. Further fees for exceeding the estimated duration are payable the day after the relevant mediation day.

Parties have a right to seek waiver of fees in certain circumstances. Automatic waiver applies if the party is legally represented under a pro bono scheme administered by Victorian Bar Inc., Law Institute of Victoria, or Justice Connect; is represented pro bono by a member of the Federation of Community Legal Centres; has been granted legal aid; is serving a sentence of imprisonment or detained; or is under 18. However, for fees under items 6.1, 6.3, 6.4 and 6.5 (after-hours, search, retrieval, photocopying), waiver is not automatic and requires a showing of financial hardship under section 129(3) of the Supreme Court Act 1986. News media organisations have an exemption from items 6.3 and 6.4 for news-reporting purposes.

Parties also have a right to a refund of fees in specific circumstances: if a fee was paid that was not payable, if a higher fee was paid by mistake, if a Commercial Court entry fee is subsequently adjusted because the matter is removed from a judge managed list or transferred to a lower court, or if a probate application fee is refundable if the application is discontinued before filing the will or other document. But there is no refund if a setting down fee, hearing fee, or mediation fee is paid and the matter does not proceed. The Prothonotary or deputy prothonotary may also refund a fee if satisfied there are exceptional reasons justifying it.

Parties claiming standard or concession status, or a waiver or refund, must provide information or evidence when requested by the Prothonotary. If a lower fee was charged in error, the Prothonotary may reinstate the correct fee and require payment of the difference. This creates a duty to self-verify status and to respond to inquiries.

The Regulations do not create criminal offences or impose monetary penalties for non-payment of fees. Instead, enforcement is procedural: fees are a condition of filing, service, or the occurrence of an event. If a fee is not paid, the Court or its officials may refuse to file the document or render the service, or may not proceed with the hearing or mediation. The Prothonotary has the power to require payment before filing (regulation 10(1)(b)). For setting down fees, payment is a prerequisite for the hearing date to be confirmed. For hearing fees, the daily hearing may not proceed if the fee is not paid on time, unless the Court orders otherwise.

The Regulations provide for reinstatement of correct fees if a lower fee was charged based on incorrect status information. In that case, the fee payer must pay the difference. The Prothonotary's power to require payment is backed by the threat of the Court declining to proceed, which effectively compels compliance.

There are no provisions in the Regulations for interest on late fees, fines, or costs orders for non-compliance. However, failure to pay fees could result in the proceeding being stayed or struck out under the general civil procedure rules, depending on the registrar's discretion. The Regulations rely on the Court's inherent and statutory powers to control its processes.

Waiver and refund decisions by the Prothonotary are administrative, not judicial. If a party disputes a decision to refuse waiver or a refund, the proper avenue would be to apply to a judge for an order under the general power of the Court, or under section 129(3) of the Supreme Court Act 1986 itself, which empowers the Court to waive fees on hardship grounds. The Regulations specify that the Prothonotary may refund fees for exceptional reasons, but this discretion is exercised internally.

The fee unit system is tied to the Monetary Units Act 2004, which requires the Treasurer to fix the value of a fee unit annually. The fee amount crystallises at the time of payment based on the current fee unit value. There is no penalty for the difference in fee unit value over time, but parties should calculate fees at the time of payment using the gazetted value.

The Regulations are made under section 129 of the Supreme Court Act 1986, which confers the power to prescribe fees for the Court. The Regulations do not override the Court's discretion to make orders as to costs under the Supreme Court Act or the general civil procedure rules. Payment of filing fees remains recoverable as costs in the usual way if the party is successful and costs are awarded.

The Regulations define legal profession legislation to mean the Legal Profession Uniform Law (Victoria), the Legal Profession Uniform Law Application Act 2014, and the Legal Profession Act 2004 as in force before repeal. This definition is used to apply special higher fees to lawyer-initiated cost assessment proceedings in the Costs Court, recognising that those proceedings are between legal practitioners and clients, not ordinary litigation.

The Regulations interact with the Administration and Probate Act 1958 in several ways: the definition of small estate refers to Part II of that Act; the fee on referral by the Registrar of Probates under regulation 10(2) relates to section 12(2)(b) of that Act; and the fee for State Trustees administering an estate under section 79 of that Act appears as a notice-posting fee.

The Regulations also interact with the Victorian Civil and Administrative Tribunal Act 1998, the Mental Health and Wellbeing Act 2022, and the Criminal Procedure Act 2009 by providing that no fee is payable for certain appeals or criminal matters, though the general miscellaneous fees (items 6.1, 6.3, 6.4, 6.5) may still apply. This means even in criminal or VCAT appeals where commencement fees are waived, out-of-hours service, search, inspection, retrieval and photocopying fees remain payable unless separately waived on hardship grounds.

The Open Courts Act 2013 is relevant because the definition of news media organisation for the exemption from search and inspection fees is taken from that Act. The exemption applies only if the search or retrieval is undertaken for news reporting purposes.

The Regulations also interact with the Common Law Procedure Rules and Chapter definitions, which are statutory rules for civil procedure. The Regulations incorporate those definitions by reference. For example, the definition of trial includes a trial of a separate question under Rule 47.04 of Chapter I. The Regulations also cross-reference Order 7 of Chapter II for land tax appeals, Order 10 for counterclaims, Order 11 for third party proceedings, and various other rules.

The Trans-Tasman Proceedings Act 2010 of the Commonwealth is relevant for the fee on registration of a judgment under that Act (item 6.8). The Judgment Debt Recovery Act 1984 and the County Court Act 1958 and Magistrates' Court Act 1989 are mentioned for certificates filed for enforcement of judgments from lower courts.

The Subordinate Legislation Act 1994 governs the sunsetting of these Regulations on 18 September 2028, meaning they will automatically repeal unless remade before that date.

The Regulations were made on 18 September 2018 and commenced on 30 September 2018. They have been amended twice. The first amendment was the Supreme Court (Fees) Amendment Regulations 2020 (S.R. No. 53/2020), made on 23 June 2020 and commencing on 1 July 2020. This amendment inserted: a definition of news media organisation in regulation 5; new regulation 14A providing an exemption from fees in items 6.3 and 6.4 for news media organisations and their representatives when searching, inspecting, retrieving or accessing material for news reporting purposes; and amendments to Part 4 and Part 6 of Schedule 1. The Part 4 amendment added a new item 4.2A for filing an amended originating motion under Chapter III (probate), and item 4.8 for exemplifications. The Part 6 amendment added items 6.14 through 6.18 covering admission to the legal profession and appointment of public notaries, which were previously absent from the schedule.

The second amendment was the Supreme Court (Fees) Amendment Regulations 2024 (S.R. No. 124/2024), made on 6 November 2024 and commencing on 18 November 2024. This amendment: substituted the definitions of Chapter III and Chapter V in regulation 5 to update references to the Supreme Court (Administration and Probate) Rules 2023 and the Supreme Court (Corporations) Rules 2023 respectively; inserted a definition of small estate; amended regulation 6(1)(h) to update a reference from the now-repealed Mental Health Act 2014 to the Mental Health and Wellbeing Act 2022 for VCAT appeals on questions of law from orders concerning the Mental Health Tribunal; inserted new regulation 15(8A) providing a refund of probate application fees if the application is discontinued before filing the will or other document sought; amended regulation 15(9) to include the new refund provision within the Prothonotary's exceptional refund power; made some amendments to Part 4 of Schedule 1 to replace references to "Wills Index" with "Application and Wills Indices" and to update fee amounts for certain probate items; and made minor changes to Part 6. The endnotes track these amendments, and the version as at 18 November 2024 incorporates both sets of amendments.

The Regulations themselves revoked the Supreme Court (Fees) Interim Regulations 2017. They are subject to sunsetting after ten years and will expire on 18 September 2028 unless earlier remade or extended.

The Regulations are published in S.R. No. 135/2018 and are available on the Victorian Legislation website. Version No. 003 reflects the current consolidated text incorporating both amendments. The endnotes also explain that under the Interpretation of Legislation Act 1984, headings, examples, diagrams, notes and punctuation form part of the Regulations, and they include a table of amendments and general information.

The Regulations themselves have not been the subject of any litigation noted in the text. No cases are mentioned in the Regulations or the endnotes. The Supreme Court of Victoria has inherent jurisdiction to determine the validity and application of its own regulations, and any dispute about the applicability or interpretation of a fee provision would be determined by a judge in the context of specific proceedings. For example, a party might challenge a decision of the Prothonotary refusing to waive a fee, arguing that the payment would cause financial hardship under section 129(3) of the Supreme Court Act 1986. The Court of Appeal could also consider whether a fee was properly payable in a particular case. However, no such litigation is cited or recorded in the text provided.

Because the Regulations are subsidiary legislation, challenges would likely proceed by way of judicial review or by an application in the proceeding itself. The Prothonotary's discretion to refund a fee for exceptional reasons under regulation 15(9) could also be the subject of judicial review if the discretion is arguably exercised unreasonably.

The Regulations are materially intertwined with the Supreme Court (General Civil Procedure) Rules 2015 and other chapters, which themselves have been the subject of frequent litigation. The fees are an aspect of the cost of litigation and are frequently recovered in costs orders, but the Regulations themselves have not generated a body of case law.

Practitioners should be aware that the interpretation of terms like standard fee payer and corporate fee payer may be tested in litigation. For example, whether a particular entity qualifies as a not-for-profit organisation under the definition may be disputed, especially if the entity has a profit-sharing arrangement that is argued not to be a distribution of profits. Similarly, whether an executor or administrator of a deceased estate qualifies as a standard fee payer regardless of the size of the estate (which may be large) is explicitly provided in the definition, but it may still be challenged if the executor acts in a professional capacity.

The Regulations have been in effect since September 2018, and any litigation would have occurred in Supreme Court matters where fee issues were raised. The absence of noted litigation may indicate that the fee schedule is considered straightforward and not frequently contested, or that disputes are resolved administratively by the Prothonotary.

Several features of the Regulations can catch practitioners off guard. First, the fee escalation for hearing days is aggressive. In the Commercial Court, day 15 onward costs 467.9 fee units for corporate payers - approximately $7,640 per day based on the 2024-2025 fee unit value. This can dramatically inflate the cost of a long trial, and parties may not anticipate the steep climb from day 1 (96.8 units) to day 10 and beyond. The trial division is similar but with slightly lower bands; day 10 onward costs 251.0 units for corporate payers.

Second, the rule on multiple parties (regulation 9) means that adding a corporate entity as a co-plaintiff or co-defendant when other parties are individuals can force the entire filing fee to the corporate rate, even if the corporate entity is a nominal party. This is a trap for class actions or joint proceedings where one plaintiff is a company and others are individuals.

Third, the automatic waiver provisions do not cover all fees. Items 6.1, 6.3, 6.4 and 6.5 (after-hours service, searching registers, retrieving offsite files, photocopying) are not waived automatically; a separate hardship application is required under the Supreme Court Act, not the Regulations. A party who is granted legal aid or is under 18 may assume all fees are waived, only to be charged for file retrieval.

Fourth, the setting down fee is payable only once per trial or appeal, regardless of adjournments or relistings (regulation 11(4)). But there is no refund if the matter does not proceed to hearing at all (regulation 15(6)). A party that pays a setting down fee and then settles before trial loses that money. Similarly, hearing fees and mediation fees are not refunded if the event does not occur (regulation 15(7), (8)).

Fifth, the fee for entry into a judge managed list of the Commercial Court (item 3.6) is 137.6 fee units for corporate payers. A party starting a proceeding outside such a list and later applying to enter it must pay this entry fee. This is in addition to the initial commencement fee (which for outside-list proceedings is 155.2 units for corporate payers). The combined cost can be substantial.

Sixth, probate fees are based on gross value of the estate, not net value. A deceased estate with high gross assets but significant liabilities (e.g., a house worth $1 million with a $800,000 mortgage) still attracts the higher fee band (147.0 fee units for estates $1 million to under $2 million) even though the net estate is small. The Regulations define gross value without deduction for liabilities. For estates under $250,000, the fee is nil, but there is no hardship waiver for probate fees; the fee is fixed by the schedule.

Seventh, for the Costs Court, the commencement fee for a lawyer or law practice seeking assessment of costs payable to it (item 5.3) is a flat 92.7 fee units for all categories (corporate, standard and concession). This is higher than the fee for a client seeking assessment, and the daily hearing fees are also flat at 77.7 units. A suburban solicitor assessing their own costs against a client will pay a premium.

Eighth, the definition of appeal includes a cross-appeal, application for leave to appeal, and cross-application for leave to appeal. Each such step attracts a separate commencement fee (item 1.1 for appeals). If both sides appeal, each pays a commencement fee, and potentially a setting down fee and hearing fees.

Ninth, the concession fee for hearing days in almost all divisions is a flat 20.7 fee units, regardless of day count. This means a 15-day trial costs a concession holder only 310.5 units total for hearing fees, while a corporate payer would pay thousands of units. This asymmetry may lead to disputes over fee payer status or arguments that a party with means is improperly claiming concession status.

Tenth, the currency of the fee unit value can change mid-proceeding. The fee is calculated at the time of payment, not the time of filing. If payment is deferred (e.g., hearing fees payable days before each hearing day), the value could increase if the new financial year begins and the fee unit rises. Parties should check the current gazetted fee unit value before each payment.

Compliance with the Regulations requires careful attention to the fee schedule, the timing of payments, and the documentation of fee payer status. Practitioners should take the following steps.

First, determine the correct fee payer category for each party. A standard fee payer is a natural person (unless acting as a statutory officer), a not-for-profit organisation with certain characteristics, an entity with turnover under $200,000 in the prior financial year, or an executor/administrator of a deceased estate. A concession fee payer holds a current health care card under the Social Security Act 1991. A corporate fee payer is everyone else. If multiple parties request a single service, the highest applicable category among them governs (regulation 9). Practitioners should check the status of each entity at the time of each payment, as status may change (e.g., a health care card may expire, turnover may exceed the threshold in a later year).

Second, maintain proof of status. Regulation 16 requires fee payers to provide information or evidence when requested by the Prothonotary or deputy prothonotary to establish that they are a standard or concession fee payer, or entitled to a waiver or refund. Practitioners should keep copies of health care cards, recent financial statements to show turnover, and documentation of not-for-profit status (constitution, tax exemption evidence). If a lower fee is claimed, the prothonotary may later reinstate the correct fee and demand the difference if the status is not substantiated.

Third, pay the appropriate fee at the correct time. For commencement fees, pay upon filing. For setting down fees, pay no later than six weeks before trial in the Trial Division (or the day after setting down if the trial date is within six weeks). In the Court of Appeal, pay when the application book is delivered. For first-day hearing fees, pay no later than five days before the hearing. For subsequent hearing days, pay the day before. For mediation fees, pay no later than five days before the mediation, with additional fees due after the mediation if it exceeds the estimated duration. Practitioners should diarise these deadlines carefully. Late payment may result in the hearing or mediation not proceeding, causing wasted preparation and potential costs.

Fourth, consider whether a fee waiver or exemption applies. Automatic waiver applies to parties who are legally represented under an approved pro bono scheme (Victorian Bar Inc., Law Institute of Victoria, or Justice Connect), represented by a Federation of Community Legal Centres member, granted legal aid, imprisoned or detained, or under 18. However, this waiver does not extend to items 6.1, 6.3, 6.4 and 6.5 without a separate financial hardship application. For News media organisations, the exemption from items 6.3 and 6.4 is automatic for news-reporting purposes. Practitioners for news organisations should confirm the purpose of the search and record it.

Fifth, apply for any refund promptly. A refund is available if a fee was not payable, was overpaid by mistake, or in specific cases: if a Commercial Court matter is removed from a judge managed list or transferred to a lower court (refund of the difference between the higher and lower commencement fee); or if a probate application fee is refunded if the application is discontinued before filing the will or document (regulation 15(8A)). There is no refund for setting down, hearing or mediation fees if the event does not proceed, so parties should consider the likelihood of settlement before paying these fees. The Prothonotary retains discretion to refund for exceptional reasons.

Sixth, monitor changes to the fee unit value each financial year. The value is fixed by the Treasurer under section 5 of the Monetary Units Act 2004 and published in the Government Gazette and a Victorian newspaper before 1 June. Use the current value when calculating fees in dollar terms. The Regulations do not cap the fee at the value in effect at the time proceedings were commenced; each payment uses the then-current fee unit value.

Seventh, ensure that any order or direction of the Court that varies the usual rule on who pays a fee is recorded. For example, regulation 8(3) provides that if a fee is payable as a result of an order or direction made of the Court's own motion, it is payable by the party that commenced the proceeding unless the Court otherwise orders. A party can seek a contrary order if appropriate.

Finally, retain receipts and records of all fee payments. These may be needed for cost recovery. The party liable for the fee may be different from the party ultimately responsible under a costs order. The Regulations do not affect the Court's power to make orders for costs between parties; the fee payer initially bears the outgoing, but may later recover it from another party if costs are awarded. Practitioners should advise clients to keep clear documentation to support cost submissions.