Difference Between Fees & Costs
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.
Court fees are set by the Federal Court and Federal Circuit and Family Court Regulations 2022. The Regulations are made by the Federal Government. They impose fees for filing, setting down, hearing, mediation, taxation of bills of costs and some other services for proceedings in the Court.
A party may be exempt from payment of these fees in certain circumstances and in some situations you can ask for payment to be deferred. You can get a form to ask the Court to either exempt or defer payment of court fees from the Registry or from the Exemption of fees page.
Court fees are received by the Court on behalf of the Government and are different from the fees that lawyers charge their clients.
Costs are dealt with in Part 40 of the Federal Court Rules 2011.
Parties may employ lawyers (barristers or solicitors) to represent them in a proceeding in the Court. 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 (lawyers’ fees and disbursements) are known as costs.
The usual rule is that at the end of a proceeding the unsuccessful party pays the costs (i.e. the lawyers’ 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 the Minister will be ordered to pay the costs of the applicant.
A person who is exempt from payment of Court fees 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 2011. A Registrar of the Court will usually be involved in the calculation of this amount.