Knowing the difference between
fees and costs may affect your decision to bring or continue
a proceeding in the Federal Court of Australia. A general
outline is given here – if you have any further
queries you should seek legal advice.
Fees
Fees are set out in the Federal
Court of Australia Regulations 2004. The Regulations
are made by the Federal Government. They impose filing
fees, setting down fees and hearing fees for an application
or appeal filed in the Court. These Court fees are different
from the fees that lawyers charge their clients.
If you cannot afford a filing
fee you can ask the Court to waive it. Some people are
also exempt from paying fees (for example, if you have
been granted Legal Aid or are the holder of a health
care card).
Costs are dealt with in Order
62 of the Federal Court Rules.
Parties may employ lawyers (barristers
or solicitors) to represent them in a proceeding. These
lawyers usually charge their clients for their services
(fees) and expenses that they have paid on the client’s
behalf (disbursements). Disbursements may include court
fees. Together these charges are known as costs.
The usual rule is that at the
end of a proceeding the unsuccessful party pays the costs
(ie the fees and disbursements) of the other party. For
example, in a migration matter, if the applicant is unsuccessful,
the usual rule is that they will be ordered to pay the
costs of the Minister. If the Minister is unsuccessful,
the usual rule is that they will be ordered to pay the
costs of the applicant.
A person who is exempt from payment
of Court fees or who has had these fees waived can still
be ordered to pay the costs of another party.
The amount of costs that an unsuccessful
party will be ordered to pay is usually limited to the
amount set out in the scale found in Schedule
2 of the Federal
Court Rules. A Registrar of the Court will usually
be involved in the calculation of this amount.
