SUPREME COURT REGULATIONS 1985

Revenue units. The Schedule expresses all fees in “revenue units”, a metric not defined in these Regulations themselves but derived from other Northern Territory legislation (likely the Fees and Charges Act). This indexing mechanism means the dollar amount of each fee changes over time as the value of a revenue unit is adjusted, typically annually, to reflect inflation. The consequence is that court fees rise automatically, reducing the need for amending regulations but also increasing the real cost of access over time unless the unit value is restrained.

Taxation of costs. This is the court process by which a Taxing Master determines the amount of costs one party must pay to another after a judgment or order. Regulation 3 imposes a “prescribed fee” for this service. The fee is calculated as 7.5 per cent of the amount of costs allowed on the whole bill, excluding any GST component allowed under Supreme Court Rule 63.75. If the taxation is not completed (for example, because a consent order is made part way through), the Taxing Master may set the fee based on the portion taxed. Crucially, if a consent order for payment of costs is made before taxation commences, no prescribed fee is payable at all. This creates a strong financial incentive for parties to agree costs before engaging the taxation process.

Prescribed fee. This term refers specifically to the fee for the taxation of a bill of costs by the Taxing Master, not the Schedule fees. It is a percentage fee, not a flat amount. The calculation base is the costs allowed, not the costs claimed. The party entitled to costs must pay the prescribed fee to the Court within 28 days of the Taxing Master’s order allowing costs. If the party applies for reconsideration or review, payment is deferred until 14 days after that application is determined. Once the paying party pays the prescribed fee, the party liable to pay the costs must reimburse the paying party for that amount, making it an additional cost burden on the losing party.

Exemptions. Regulation 4(2) lists five categories of proceeding for which no Schedule fee is payable: adoption matters; case stated procedures; references to the Full Court; criminal matters; and proceedings by or on behalf of the Territory. The exemption is personal to the party: the Territory does not pay fees even when it is the applicant. However, subregulation (3) allows an exempt person to recover an amount equal to the fee as if it were a cost incurred, and that amount must then be paid to the Court. This converts the exemption into a transfer from the exempt party’s judgment debtor to the Court, rather than a true cost saving.

Financial hardship waiver. This is an administrative safety valve located in regulation 5. The Registrar may waive, defer or permit instalments if payment would cause financial hardship to the party. The discretion is broad: the Registrar may impose conditions, change them at any time by notice, and cancel the deferral or permission at any time, making any outstanding amount immediately payable. A party using this relief cannot discontinue the proceeding without leave if any fee remains unpaid. If a scheduled payment is missed, further steps in the proceeding are blocked without leave, and the debt is recoverable by the Territory.

The Regulations impose direct costs on any person or entity that commences or defends proceedings in the Supreme Court, appeals, or seeks certain services such as searches or photocopying. The fee structure differentiates sharply between corporations and individuals. For example, filing an originating process in the Court of Appeal costs 3,264 revenue units for a corporation but 1,941 for an individual - a premium of about 68 per cent. The same pattern appears for setting down for hearing, daily hearing fees, and other items. This differential affects small businesses and family companies, which pay the higher rate, potentially making court access more expensive for incorporated entities than for natural persons.

The prescribed fee for taxation of costs directly impacts litigants in costs disputes, which are common after judgments or settlements. The 7.5 per cent ad valorem fee means that the larger the costs bill, the larger the court’s cut. This can change the dynamics of settlement negotiations: parties may be more willing to agree costs by consent before taxation to avoid the fee entirely, or may factor the fee into their assessment of likely recovery. The fee is ultimately borne by the party liable to pay costs, so it adds to the losing party’s bill.

The exemption for the Territory means the Northern Territory government does not pay court fees when it is a party. This gives the Territory a financial advantage over private litigants, as it faces no cost to file proceedings or appear in its own courts. The exemption for criminal matters benefits defendants and the prosecution alike, reflecting the constitutional principle that criminal justice should not be made conditional on fees.

The hardship waiver affects litigants with limited financial means. However, its effectiveness depends on the Registrar’s discretion. There is no right to a waiver; it is purely a power. A party who is granted a deferral or instalments faces restrictions on discontinuing the proceeding, which can affect settlement flexibility. The provision that the Registrar may change conditions at any time without consent creates uncertainty for the party.

Legal practitioners and law firms are affected indirectly: they must advise clients on the fee implications, ensure fees are paid on time to avoid procedural blocks, and handle the reimbursement of the prescribed fee. The differential fee structure also influences decisions about whether to incorporate a professional practice, as incorporated firms pay higher fees.

Costs professionals, including taxing masters, are directly affected by the fee calculation and payment provisions. The Taxing Master must specify the prescribed fee in the order allowing costs and add it to the total.

Parties required to pay Schedule fees have a duty to pay them at the time of filing or taking the step. Regulation 4(1) states that a fee specified in the Schedule “is payable”. There is no provision for refunds, so overpayment risks exist. The Regulations do not state explicitly when the fee is due for each item, but in practice payment is required when the document is lodged or the service is requested. For the prescribed taxation fee, the due date is 28 days after the Taxing Master makes the order allowing costs, unless an application for reconsideration or review is pending, in which case the due date is 14 days after determination.

The party entitled to be paid costs has a duty to pay the prescribed fee to the Court. That party then has a right to recover an amount equal to the fee from the party liable to pay costs, once the fee is paid (regulation 3(8)). This right is automatic and does not require a separate order. It effectively increases the costs payable by the losing party by 7.5 per cent of the allowed bill (plus GST excluded).

Exempt parties under regulation 4(2) have a right to recover an amount equal to the fee that would have been payable as part of a judgment debt, as if it were a cost incurred. However, they then must pay that amount to the Court (regulation 4(4)). This imposes a duty on the exempt party to remit the recovered amount, rather than retain it. This could catch unwary litigants who recover a fee from a judgment debtor and do not realise they must account to the Court.

Parties suffering financial hardship have a right to apply to the Registrar for waiver, deferral or instalments. But it is not an entitlement: the Registrar “may” grant relief. The Regulations do not specify criteria for hardship, giving the Registrar wide discretion. The party granted relief has a duty not to lodge a notice of discontinuance without leave while any fee remains unpaid, and must pay any amount due according to the arrangement. If the Registrar cancels the deferral, the outstanding amount becomes immediately payable.

A party that does not pay a Schedule fee when due loses the right to take any further step in the proceeding without the Court’s leave until the amount is paid. This includes steps like filing evidence, attending hearings, or appealing. The leave requirement is a significant procedural barrier: the party must persuade a judge that the step should be allowed despite the default. The Court may impose terms, including an order to pay the overdue fee before proceeding.

The Taxing Master has a duty, when making an order allowing costs, to specify the prescribed fee if payable and to add it to the amount of costs allowed (regulation 3(5)). This ensures the fee is visible and part of the order. The Taxing Master also has a discretion, when taxation is not completed, to order the amount on which the prescribed fee is to be calculated (regulation 3(4)).

The Regulations do not create criminal penalties. Enforcement is achieved through procedural consequences and civil recovery. The primary enforcement mechanisms are:

• Procedural step prohibition. Regulation 5(5)(a) provides that if a Schedule fee is not paid when due, the party liable “cannot take any further step in the proceeding without the leave of the Court until the amount is paid.” This applies to all fees not paid, including after a hardship arrangement is cancelled. The prohibition is automatic and does not require a court order. It affects the party’s ability to continue the litigation, including defending, filing documents, or attending mediation. A party who ignores the prohibition risks having steps struck out or being held in contempt, though the Regulations do not state that explicitly.

• Debt recovery. Unpaid fees under regulation 5 are recoverable as a debt due to the Territory (regulation 5(5)(b)). This means the Territory can sue the party for the unpaid amount in a court of competent jurisdiction. The debt is separate from the court proceeding, so even if the underlying case settles, the Territory can pursue the fee.

• Discontinuance barrier. A party granted a deferral or instalment arrangement cannot lodge an application for leave to discontinue, or a notice of discontinuance (if leave is not required), without leave of the Court, while any part of the fee remains unpaid (regulation 5(4)). This prevents the party from walking away from the proceeding without paying the fee. It also restricts settlement options: a party cannot simply discontinue if the other side agrees, unless the Court grants leave. The leave requirement adds cost and delay.

• Prescribed fee enforcement. For the taxation fee, the Regulations do not impose a procedural block for non-payment, but the fee is added to the costs order and becomes part of the judgment debt. The party liable to pay costs must reimburse the paying party. If the losing party does not pay, the paying party can enforce the costs order including the prescribed fee amount, using normal judgment enforcement mechanisms such as writs of execution or bankruptcy proceedings.

• No further step penalty without leave. The “cannot take any further step” prohibition is the most draconian enforcement tool. It applies automatically upon non-payment, without notice or hearing. The party must apply to the Court for leave, which may be refused or granted on terms. The party also bears the legal costs of the leave application. This creates a strong incentive to pay fees on time or to seek a waiver before they become due.

The Regulations do not provide for late payment penalties, interest, or administrative penalties. The only consequences are procedural and civil. The absence of any criminal penalty or fine is consistent with the character of court fees as charges for service, not punitive impositions.

The Regulations are made under the Supreme Court Act 1979 (NT). They give effect to the Court’s power to set fees for its own proceedings. They operate alongside the Supreme Court Rules 1987, which govern procedure. Specific references include rule 63.75 (GST on taxed costs) and rule 63.55 (reconsideration by Taxing Master or review by a Judge). The time limits for payment are directly linked to the trigger points under those rules.

The Legal Profession Act 2006 is referenced in Schedule Part 2, item 2: the fee for an application to be admitted as a local lawyer under section 25(1) of that Act is 353 revenue units. This coordinates admission fees with the Supreme Court’s schedule. The Sheriff Regulations 1967 are mentioned in notes to the Schedule, which state that fees for service of documents by the sheriff or an officer of the sheriff are set out in that regulation’s schedule. This tells practitioners where to find those separate fees.

The Fees and Charges Act (or similar legislation) governs the value of a revenue unit. The Regulations do not define “revenue unit” themselves, so the amount payable depends on the current unit value set under that Act. A change in the unit value automatically adjusts all Schedule fees, as well as the $200 maximum for the hardship waiver (though the Regulations do not specify a dollar cap). The Interpretation Legislation Amendment Act 2018 made general amendments of a formal nature to regulations 1, 3 and the Schedule, as noted in the endnotes.

The Associate Judges Act 2017 amended the Schedule to reflect appeals from Associate Judges (item 5 in Part 2). This shows how the Regulations are updated to align with court structural changes.

The Regulations interact with the law of costs generally. The prescribed fee for taxation becomes part of the costs order. The ability to recover the fee from the party liable to pay costs means the Regulations effectively supplement the costs rules. The hardship waiver does not override any other law; it merely provides a discretion within the court’s administrative structure.

There is no reference to cross-vesting laws, federal jurisdiction, or other state court fee regimes. In practice, where the Supreme Court exercises federal jurisdiction, interaction with the Federal Court of Australia Act 1976 or Judiciary Act 1903 may arise, but the Regulations are silent on that. The exemption for criminal matters ensures compatibility with the principle that criminal proceedings are not subject to court fees. The exemption for the Territory may interact with the Crown Proceedings Act or similar legislation, but no such link is stated.

The Regulations commenced on 3 July 1985 and have been amended many times. The endnotes list 17 amending instruments from 1990 to 2021. Key amendments include: substitution of regulation 3 (prescribed fee) in 2000, converting it from a flat fee to an ad valorem percentage. The current 7.5% rate was introduced by SL No. 48 of 2000. Earlier amendments in 1993 and 2009 adjusted the definition and calculation. Regulation 4 (court fees) was inserted in 1990 by SL No. 53 and subsequently amended to adjust the exemption list and cross references. The financial hardship provision (regulation 5) was inserted in 2006 by the Courts Legislation Amendment (Revenue Units) Regulations 2006 and substantially substituted in 2011 to its current form.

The Schedule has been amended numerous times to adjust fee amounts and add new items. Part 1 (Court of Appeal fees) and Part 2 (other proceedings fees) were substituted in 2013 by SL No. 27, which also introduced the current revenue unit structure. The admission fee for local lawyers was added in 2007. The appeal from Associate Judge fee was added by the Associate Judges Act 2017. The most recent amendment is the Justice Legislation Amendment Regulations 2021 (SL No. 18 of 2021), which updated the Schedule fees as at 3 November 2021.

The endnotes show that many amendments are formal, such as updating references to renamed rules or correcting numbering. The Interpretation Legislation Amendment Act 2018 made general formal amendments to regulations 1, 3 and the Schedule. This is a routine housekeeping amendment across Northern Territory legislation.

The source provided does not refer to any litigation concerning these Regulations. No cases are cited, and there are no annotations. In the absence of source material, it is not possible to identify any judicial consideration of the Regulations. This is not unusual for procedural fee instruments; challenges are rare but could arise on constitutional grounds (e.g., whether fees impose a tax rather than a charge for service, or whether they impede access to justice). However, no such case law is referenced in the Regulations as presented. Practitioners should be aware that the validity of the fee structure could be tested, especially the ad valorem fee for taxation, which might be argued as a disproportionate burden. But without specific cases in the source, this is speculative and should not be included.

Consent order before taxation avoids the fee entirely. Regulation 3(2) provides that there is no prescribed fee if, before the commencement of a taxation, the Court or Taxing Master makes an order by consent for payment of the costs in the bill. This is a significant incentive to settle costs before the taxation process begins. Many practitioners may not realise that the fee can be avoided entirely simply by agreeing costs in a consent order prior to the first taxation hearing. If a party insists on proceeding with taxation, the 7.5 per cent fee becomes unavoidable.

Partial taxation fee may be ordered. If the Taxing Master starts taxing but does not complete it for any reason, including a consent order made part way through, the Taxing Master may order that the fee is calculated on the portion already taxed. This can catch a party who thought a consent order would avoid the fee entirely, only to discover that a fee is payable on the part already dealt with. The phrase “for any other reason” gives the Taxing Master wide discretion.

The prescribed fee is calculated exclusive of GST on costs. Regulation 3(3) states the fee is 7.5% of costs allowed, exclusive of costs allowed for GST paid or payable on other taxed costs under rule 63.75. So the GST component is not part of the base. This is relevant when calculating the fee; it is not simply 7.5% of the total awarded costs.

The fee is due 28 days after the order allowing costs, not after the taxation hearing. The trigger is the order, not the completion of the hearing. If the Taxing Master reserves the order, the due date may be later, but the regulation is clear: 28 days after the order. Parties must monitor the date carefully.

Reimbursement of the fee is not automatic; the paying party must pay first. The party entitled to costs must pay the prescribed fee to the Court within 28 days, and only then does the right to recover the fee from the losing party arise. If the entitled party does not pay the fee, it cannot recover it from the other side. This can create a cash flow problem: the winning party must outlay the fee before being reimbursed.

Deferral or instalment cancellation without notice. The Registrar may cancel a deferral or instalment permission at any time by notice, and then any outstanding fee becomes immediately payable. The party has no right to be heard before cancellation. This creates uncertainty and risk, particularly if the party has relied on the arrangement.

No right to discontinue with unpaid fee. A party with a deferred fee cannot discontinue the proceeding without the Court’s leave. This traps a party in the litigation if it cannot pay the fee. Even if the other side agrees to settle, the party must seek leave, incurring additional cost.

Corporations pay higher fees. The differential is substantial. For a daily hearing fee, a corporation pays 2,208 revenue units, an individual pays 1,176 - almost double. A small business incorporated as a company pays the higher rate, even if it is a single-person entity. This may affect the choice of business structure: unincorporated sole traders pay the individual rate, while companies pay the corporate rate.

Exempt parties must pay over recovered fees. Regulation 4(4) requires a person who recovers a fee under the exemption provision to pay an amount equal to the fee to the Court. This is a hidden obligation. A Territory department that recovers a fee from a judgment debtor must not retain it; it must be remitted. The same applies to other exempt parties.

No fee for criminal matters, but for the wrong side? The exemption for criminal matters is broad, covering both prosecution and defence. However, a private litigant bringing a civil claim arising from criminal conduct does not benefit from the exemption.

Practitioners and litigants should take the following steps to comply with the Regulations:

Calculate fees correctly using current revenue unit values. The Schedule expresses fees in revenue units, not dollars. The current value of a revenue unit should be obtained from the Fees and Charges Act or equivalent before paying. The Regulations do not provide the unit value; it changes regularly. Paying the wrong amount risks procedural blocks.

Determine the correct fee based on party status. If the litigant is a corporation, use the corporation fee column. If a partnership, the corporate fee likely applies if the partnership is treated as a corporation for fee purposes (though the Regulations do not define “corporation” - check the Supreme Court Rules for definition). Individuals pay the lower rate.

Pay Schedule fees at the time of the relevant step. Although the Regulations do not state a specific due date for each item, court practice is to require payment when the document is lodged. Filing a notice of appeal without paying the fee may result in rejection.

For taxation of costs, consider a consent order before taxation. To avoid the 7.5% prescribed fee, parties should try to agree on costs by a consent order before the Taxing Master starts the taxation. This requires negotiation and possibly a mediator. If an agreement is reached, ensure the order is made before the first taxation hearing.

If taxation proceeds, pay the prescribed fee within 28 days of the Taxing Master’s order. Note the trigger is the order, not the date of hearing. If an application for reconsideration or review is made, payment can be deferred until 14 days after the determination of that application. Ensure the application is made promptly to avoid the 28-day deadline expiring.

Recover the prescribed fee from the losing party only after paying it. The right to reimbursement arises under regulation 3(8) after the paying party has paid the fee. Include the fee in the costs enforcement process.

Apply for waiver or deferral early if financial hardship exists. The application should be made before the fee becomes due. The Registrar may grant relief on conditions, and the party must comply with those conditions. Avoid missing instalment payments; any default triggers the automatic prohibition on further steps.

If a deferral or instalment arrangement is granted, do not lodge a notice of discontinuance without the Court’s leave. If the party wishes to discontinue or settle, it must first pay the outstanding fee or seek leave from a Judge.

For exempt parties, be careful not to retain recovered fees. If you are an exempt party (including the Territory) and you recover an amount equal to the fee from a judgment debtor, pay that amount to the Court promptly under regulation 4(4). Failure to do so may create a liability.

Maintain records of all fee payments and recovery. This is essential for proving compliance if a procedural block is threatened. Also, if a party is affected by cancellation of a deferral, records will show whether notice was given.

Check for amendments regularly. The Regulations are frequently amended to adjust fee amounts and add new items. Practitioners should use the current version on the NT legislation website. The endnotes show recent amendments as at 3 November 2021; later amendments may have occurred.

If a step is blocked due to non-payment, apply for leave promptly. Regulation 5(5)(a) prevents further steps without leave. The application should explain the circumstances and show willingness to pay. The Court may grant leave on terms, including an order to pay the overdue amount.