Fee waiver guide – Federal Circuit Court

This factsheet explains when fees are not payable for Federal Circuit 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) (the Regulation). They include:

• Filing fees
• Setting down fees
• Hearing fees

Current fees are set out on the Federal Circuit Court’s website.

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:

• Reg 2.05: Persons exempt from paying fee – general
• Reg 2.06: Persons exempt from paying fee – financial hardship
• Reg 2.09: Fee not payable in Federal Circuit Court proceeding
• Reg 2.10: When only filing fee is payable
• Reg 2.11: When filing fee is not payable
• Reg 2.12: When setting down fee is not payable
• Reg 2.13: When hearing fee is not payable
• Reg 2.15: Deferral of payment of fees

Fees not payable (Reg 2.09 and 2.10 – 2.13)

Fees are not payable for:

• an application for an extension of time within which a proceeding may be commenced;
• a proceeding for which a Convention to which Australia is a party provides that a fee is not payable;
• an application to set aside a subpoena;
• a proceeding under the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988;

Filing Fees (Reg 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 if:

• the matter:
  • was remitted by the High Court to the Federal Court under section 44 of the Judiciary Act 1903; and
  • was subsequently transferred by the Federal Court to the Federal Circuit Court under section 32AB of the Federal Court of Australia Act 1976; or
• the matter was remitted by the High Court to the Federal Circuit Court under section 44 of the Judiciary Act 1903.

Setting down fees (Reg 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 the matter:
  • was remitted by the High Court, in the exercise of its appellate jurisdiction, for re-hearing by the Federal Court under section 44 of the Judiciary Act 1903; and
  • was subsequently transferred by the Federal Court to the Federal Magistrates Court under section 32AB of the Federal Court of Australia Act 1976;
• if the matter was remitted by the High Court, in the exercise of its appellate jurisdiction, for re-hearing by the Federal Magistrates Court under section 44 of the Judiciary Act 1903;
• for an application under s 46PO or 46PP of the Australian Human Rights and Equal Opportunity Commission Act 1986; or
• for an application under s 539 of the Fair Work Act 2009 where the applicant has been dismissed from employment in alleged contravention of Part 3-1 or s 772 of that Act or where the applicant alleges a breach of s 351 of that Act.

Hearing fees (Reg 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 matter:
  • was remitted by the High Court, in the exercise of its appellate jurisdiction, for re-hearing by the Federal Court under section 44 of the Judiciary Act 1903; and
  • was subsequently transferred by the Federal Court to the Federal Magistrates Court under section 32AB of the Federal Court of Australia Act 1976;
• if the matter was remitted by the High Court, in the exercise of its appellate jurisdiction, for re-hearing by the Federal Magistrates Court under section 44 of the Judiciary Act 1903;
• for an application under s 46PO or 46PP of the Australian Human Rights and Equal Opportunity Commission Act 1986; or
• for an application under s 539 of the Fair Work Act 2009 where the applicant has been dismissed from employment in alleged contravention of Part 3-1 or s 772 of that Act or where the applicant alleges a breach of s 351 of that Act.

Exemption from fees (Reg 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:
  • The holder of a health care card, a pensioner concession card or a seniors health card; or
  • The holder of any other card issued that certifies entitlement to Commonwealth health concessions; or
  • an inmate of a prison or otherwise lawfully detained in a public institution; or
  • a child under the age of 18 years; or
  • receiving youth allowance or an Austudy payment; or
  • receiving ABSTUDY benefits;
  • has been granted assistance under the Native Title Act 1993 in certain specified circumstances 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 (Reg 2.15)

Certain 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; or
• 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 Circuit 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 in the Guidelines for exemption of court fees on the Federal Circuit Court’s 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 also 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 at the back of the form must be completed.

The information in this resource is for general information purposes only and should not be relied on as legal advice. If you need legal advice, please contact LawRight or another lawyer. LawRight can only give advice to people who are eligible for our services.