In Australia, the cost of court is not cheap, and so instead, many parties decide on the avenue of mediation. However, if a party does decide to proceed to court the total cost can be emotionally and financially draining. So what is the estimated cost of going to court in Australia? Read on to find out.
What is the cost of court in Australia?
The total cost of going to court depends on a range of circumstances. These circumstances, either financially or emotionally taxing, depend on:
- The size of the debt,
- Which court you attend,
- How complex the situation is
- The cost of taking time away ,from your job or business to attend court,
- Travel and accommodation expenses to attend court,
- Whether you and the opposing party have lawyers, and
- The costs of meeting lawyers – as lawyers may have an hourly rate to provide advice, and their services for preparing court documents and attending court appearances can also add up to a large sum.
Standard costs for court cases are generally assessed on a ‘party and party’ costs basis (in light of the above circumstances) by the court, pursuant to Rule 702 of the Uniform Civil Procedure Rules 1999.
What are indemnity costs?
Indemnity costs are known as ‘solicitor and client’ costs and are detailed in Rule 703 of the Uniform Civil Procedure Rules (UCPR). Courts will assess all costs reasonably incurred having regard to: fees given by the court, cost agreements between the parties, and charges payable to lawyers for their work.
When will courts award indemnity costs?
The court will award indemnity costs where it is appropriate to do so. Pursuant to Rule 162(1) of the UCPR, a court can award indemnity costs if a particular is struck out because a party is found to have improperly conducted their case or wasted the court’s time.
Examples of this include:
- Where a party wrongfully accuses another of fraud,
- There is evidence of misconduct,
- Litigation has been pursued due to an ulterior motive other than justice,
- A party has made empty allegations, or
- Where a party has unreasonably refused to negotiate.
How is the cost of court assessed in the Magistrates Court?
A Magistrates Court will hear criminal offences such as traffic related offences, and property offences such as fraud or stealing. If a lawyer is employed to assist a client in the Magistrate’s Court, it is likely that they will charge a set rate, as the matter is generally straightforward.
For a criminal proceeding, the Magistrates Court fees are detailed in the Justice Regulation 2014 and the Criminal Practice (Fees) Regulation 2010. For example, under these regulations filing an application to the Magistrates Court is $114.40, and filing a complaint and summons is $105.35.
In a civil proceeding, Magistrate Court fees are detailed in the Uniform Civil Procedure (Fees) Regulation 2009. The more expensive the claim is, the more expensive the fee will be. All costs for civil proceedings can be found here.
How is the cost of court assessed in the Family Court?
Generally, each party to a family law matter is required to pay their own legal costs regardless of whether they win or lose. A Court has the power to make an order for one party to make the other’s legal costs, but only in circumstances which justify it doing this. In the Family Court the fees are not set by the court, they are instead set by Federal Government Regulations (Family Law (Fees) Regulation 2012).
Examples of the filing fees include:
- Application for divorce – $940
- Application as to validity of Marriage, Divorce, Annulment – $1,335
- Daily hearing fee for defended matter
For more family law fees see: https://www.fcfcoa.gov.au/fl/fees/fl-fees
How is the cost of court assessed in the Federal Court?
The Federal Court generally hears civil matters such as a disagreement between two persons, or between a person and a trader, company or business. The Federal Court has wide scope for their powers relating to costs. For instance, the Federal Court may not order costs despite a party losing, for cases that involve public matters or an important legal principle. This is likely because the court considers it a great display to both the public and relevant legal professionals, of an unprecedented judgement.
The Federal Court may decide on an ‘early determination of costs’. The ‘early determination’ of costs involves the court determining which party must pay the costs and on what grounds (either by the respective parties or on an indemnity basis). Following the trial or during judgement, the question of liability and/or quantum penalties may be determined.
At the beginning of a matter the Federal Court can impose limits on costs. This is a limit or cap on the maximum cost that the successful party can recover. If a party would like the court to issue a costs capping order, they should raise this with the Judge. It is important to consider whether capping the cost amount to be recoverable is relevant or appropriate in the specific case. The Court has a practice note that applies to all proceedings in the Federal Court that can be visited here. This sets out the principles of case management procedure and where parties and their lawyers should look to consider cost-related matters.
How is the cost of court assessed in the High Court of Australia?
Matters that the High Court has jurisdiction to hear include appeals to other decisions, contract matters, arbitration, copyright matters and many more. Fees for The High Court of Australia are regulated under the High Court of Australia (Fees) Regulation 2012.
Fee tables, regulations, forms and information can be found here: https://www.hcourt.gov.au/registry/filing-documents/high-court-of-australia-fees
Do I pay for the legal costs to the other party?
All courts also have the power to issue an order that states the losing party must pay the winning party’s legal costs. This is known as a common cost order. There are many types of cost orders, including party-party, indemnity and solicitor-client costs.
In most Federal Court matters the unsuccessful party is ordered to pay a portion of the successful party’s legal costs. These amounts can total up to tens of thousands of dollars depending on the matter.
What if I don’t pay my court costs?
Court costs are enforceable and failure to pay will result in consequences. The order will likely be enforced in the Federal Court if you refuse to pay costs, and can have detrimental consequences, such as a warrant for seizure and sale of property or an application for bankruptcy.
Can I avoid these costs?
Court is a timely and expensive process. However, there are alternatives to proceeding to court in order to settle a matter. These options may include alternative dispute resolution (ADR), consulting a professional mediator, sending a letter of demand or hiring a debt collector.
ADR can save a business relationship and it is less expensive and stressful than proceeding or returning to court. It usually involves a mediator and aims to save both parties time, stress, money, and lack of control over the case outcome.
Legal Advice
If you require assistance in taking a matter to court, you should seek legal advice. Legal Kitz can assist with ensuring that your matter in court is as time and cost efficient as possible.
Click here to book a FREE consultation with one of our highly experienced solicitors today, or contact us at [email protected] or by calling 1300 988 954.