Fee waiver guide - Federal Court

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This factsheet explains when fees are not payable for Federal Court proceedings and the process for getting fees that are payable waived or deferred.

Applicable fees

The applicable fees are set out in Schedule 1 of the Federal Court and Federal Circuit Court Regulation 2012 (Cth). They include:

  • Filing fees
  • Setting down fees
  • Hearing fees

Current fees are set out on the website of the Federal Court of Australia.

Fees not payable and exemption from fees

The circumstances in which a fee is not payable ("exempted") are set out in the Federal Court and Federal Circuit Court Regulation 2012 (Cth). The relevant regulations are:

  • Regulation 2.05: Persons exempt from paying fee - general
Regulation 2.06: Persons exempt from paying fee - financial hardship
Regulation 2.08: Fee not payable in Federal Court proceeding
Regulation 2.10: When only filing fee is payable
Regulation 2.11: When filing fee is not payable
Regulation 2.12: When setting down fee is not payable
Regulation 2.13: When hearing fee is not payable
Regulation 2.15: Deferral of payment of fees

Fees not payable (Regulation 2.08 and 2.10 - 2.13)

Fees are payable in relation to:

Tax appeals

Fees are not payable in relation to certain tax appeals where the Registrar is satisfied that:

  • The person lodging the appeal has lodged with the court another appeal for which the prescribed fee has been paid; and
  • The appeals are of the same type; and
  • The appeal concerns an issue (other than a procedural issue) that is substantially the same as an issue of concern in the other appeal.

Filing fees (Regulation 2.11)

If fees in general are not payable as set out above, then filing fees are not payable.

In addition, filing fees are not payable for:

  • matters remitted by the High Court to the Federal Court under section 44 of the Judiciary Act 1903;
  • matters referred by the High Court to the Federal Court under subsection 354(1) of the Commonwealth Electoral Act 1918;
  • criminal matters;
  • a case stated or question reserved for the consideration of the Federal Court;
  • a question of law referred to the Federal Court by a tribunal or other body; or
  • an application for an extension of time within which to commence proceedings.

Setting down fees (Regulations 2.10 and 2.12)

If fees in general are not payable as set out above, then setting down fees are not payable.

In addition, setting down fees are not payable if:

  • a setting-down fee has been paid for the application or appeal and has not been refunded; OR
  • the proceeding is:
    • an application for an extension of time within which a particular proceeding may be commenced;
    • an application for admission to practice as a barrister or solicitor;
    • a proceeding in relation to a criminal matter;
    • a case stated, or a question reserved, for the consideration or opinion of the Federal Court;
    • a reference to the Federal Court of a question of law by a tribunal or body that may refer questions of law to the court;
    • of an interlocutory nature only;
    • concerns a matter remitted to the Federal Court by the High Court under section 44 of the Judiciary Act 1903 and either:
      • was initiated in the High Court before the commencement of the Regulations (1 November 2004);
      • it was remitted by the High Court in its appellate jurisdiction for rehearing by the Federal Court; OR
    • the proceeding is an exercise by the Federal Court of original jurisdiction vested in it by the Bankruptcy Act 1966.

Hearing fees (Regulation 2.10 and 2.13)

If fees in general are not payable as set out above, then hearing fees are not payable.

In addition, hearing fees are not payable if:

  • the hearing is cancelled before the fee is paid;
  • the sole purpose of the hearing is delivery of a reserved judgment;
  • a hearing fee has been paid for the application or appeal and has not been refunded; OR
  • the proceeding is:
    • an application for admission to practice as a barrister or solicitor;
    • a matter remitted to the Federal Court by the High Court under section 44 of the Judiciary Act 1903 and either:
      • was initiated in the High Court before the commencement of the Regulations (1 November 2004);
      • it was remitted by the High Court in its appellate jurisdiction for rehearing by the Federal Court;
    • an exercise by the Court of original jurisdiction vested in it by the Bankruptcy Act 1966;
    • in relation to a criminal matter;
    • a case stated, or a question reserved, for the consideration or opinion of the Federal Court;
    • a reference to the Federal Court of a question of law by a tribunal or body that may refer questions of law to the court; OR
    • an application for an extension of time within which a particular proceeding may be commenced.

Exemption from fees (Regulations 2.05 and 2.06)

A fee exemption (essentially a waiver) is available if:

  • The person is granted legal aid for the proceeding to which the fee relates;
  • The person is:
  1. The holder of a health care card, a pensioner concession card or a seniors health card; or
  2. The holder of any other card issued by the Department of Social Security or the Department of Veterans' Affairs that certifies entitlement to Commonwealth health concessions; or
  3. an inmate of a prison or otherwise lawfully detained in a public institution; or
  4. a child under the age of 18 years; or
  5. receiving youth allowance or an Austudy payment; or
  6. receiving ABSTUDY benefits; OR
  • A Registrar (or an authorised officer), having regard to the income, day-to-day living expenses, liabilities and assets of the person, forms the opinion that payment of the fee would cause financial hardship to the person.

Fee deferral (Regulation 2.15)

Fees can be deferred if:

  • in the opinion of the Registrar:
    • In the case of a filing fee: the need to file the document is so urgent as to override the requirement to pay the filing fee at the time of filing; or
    • Otherwise: it would, having regard to the financial circumstances of the person liable to pay the fee, be oppressive or otherwise unreasonable to require payment within the normal timeframes;
  • In the case of a setting-down fee: the date of the hearing is more than 6 months after the day on which the proceeding is set down for hearing;
  • The person liable to pay the fee is represented by a practitioner who is acting pro bono.

If payment is deferred, the fee must be paid within 28 days or other period as specified by the Registrar in writing.

Procedure

The forms to be used to apply for an exemption or deferral of fees are those on the Federal Court website.

The following forms are available:

  • Application for exemption from paying court fees - general
  • Application for exemption from paying court fees - financial hardship
  • Application - deferral of payment of court fees

Application for exemption

Detailed information regarding application for exemption and waiver for an individual or a corporation is provided on the website, including instructions on how to fill out the form.

Proof of entitlement to an exemption must accompany the application. For example, if exemption is claimed due to the applicant having been granted legal aid, the letter of confirmation must be provided. The application form clearly sets out what is required.

If an application for waiver is refused, then written reasons for the decision will be given. An appeal to the Administrative Appeals Tribunal can be made within 28 days.

Application for deferral

When applying for fee deferral on the basis that the need to file the document overrides the requirement to pay the fee at the time of the filing, a statement setting out the reasons is required.

When applying for a fee deferral on the basis of financial hardship, it is also necessary to complete a statement of financial position and provide as much relevant information about the financial situation of the applicant as possible.

When applying for fee deferral on the basis that the person is represented by a practitioner acting pro bono, the "statement by the practitioner" section at the back of the form must be completed.

Contact

The Federal Court of Australia
Harry Gibbs Commonwealth Law Courts Building
119 North Quay
Brisbane QLD 4000

(07) 3248 1100

http://www.fedcourt.gov.au

Contact us

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