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Report No. 189

The position in Australia

In 1999, the Australian Law Reforms Commission (ALRC) took up for consideration a reference made to it that it should "give particular attention to the causes of excessive costs in legal services and to the need for a simpler, cheaper and more accessible legal system." (Report of the Australian Law Reforms Commission titled Managing Justice: A review of the federal civil justice system Report No.89, Chapter 4 on Legal Costs, para 4.1 -

The ALRC in this Report has pointed out that full cost recovery is not pursued because "the judicial system has a key role in the democratic system of government which goes well beyond the resolution of individual disputes, encompassing progressive development of the law, providing the check on executive authority and protecting human rights."

It further explains why it is not easy to correlate the payments received from the users of the court system to the services provided by the courts. This is because "It is difficult to conceptualise who the users of the service are: whether respondents or applicants, either of whom may benefit from the outcome. There are community benefits in the effective operation of the court system and in precedents created by individual disputes. There are also practical difficulties in developing a court fee structure that reflects the actual costs of the services provided and takes into account the complexity and cost of different matters".

The ALRC also repelled the suggestion that fee exemption and waivers be more widely applied at the discretion of the court to counteract fee charges. The reason was that: "Court registry staff could have real difficulties investigating and evaluating broader discretionary categories for exemption and waiver".

In effect, the ALRC has also not supported the demand that there should be full cost recovery. It has realised that "cost factors are easier to identify than to control. The Commission's research and consultations made clear that there is no single, simple solution which will reduce legal costs in federal jurisdiction, although the Commission had identified a number of strategies for government, courts, tribunals and practitioners which could assist to contain costs in many cases."

Revision of Court Fees Structure Back

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