What it might cost

Taking a case to court can be expensive. There are many different types of costs. First, there are court fees you will need to pay to commence the proceedings and take certain steps during the proceedings. Secondly, there are expenses you will incur in preparing and running your case. These may include the fees charged by lawyers and experts. Thirdly, if you lose your case, the Court might order you to pay the costs and expenses of the other parties. This page explains each of these three types of costs.

Court fees

To lodge an appeal or commence a case in the Court, you will first need to pay a filing fee. The amount of the fee will vary depending on the type of case you are filing and whether the case is being commenced by an individual or a corporation. You can contact the registry if you need to clarify the fee to be paid.

Once you have commenced your case, there may be additional costs associated with the conduct of your matter, for example, the issuing of a subpoena or filing a notice of motion. These fees are described in the Schedule of Court Fees.

Waiver, postponement or remission of court fees

A user of a court or a court service should contribute to the cost of that service and all court fees should be paid. However, some fees may be postponed or waived. Application to waive or postpone a fee is made in writing to the registrar using the form below.

Generally, the registrar may postpone fees until the finalisation of your case if you have a grant of legal aid or pro bono legal assistance. A waiver or a postponement might also be granted if you are dependent on social security payments and lack sufficient income and capital either to pay a fee or to obtain credit on reasonable terms or are otherwise indebted to an extent that you are incapable of obtaining credit on reasonable terms. 

An application will generally not be granted if you have had a previous fee postponed and have not paid that fee or if you have made other applications within the last 12 months and the registrar is not satisfied that special factors exist to warrant another postponement or waiver of fees to pay a fee. 

For more information, refer to the:

• guidelines for waiving and postponing fees (DOC , 83.5 KB)
• form – application to waive or postpone a fee (PDF , 380.2 KB)
• relevant legislation — Part 4 of the Civil Procedure Regulation 2017 or for matters in Classes 5, 6 and 7 see the Criminal Procedure Regulation 2017.

Costs beyond court fees

In addition to court fees there are a number of other costs involved in a court case. These include your own costs of preparing the case. In some circumstances, the Court may order you to pay the other party’s costs. These costs might be quite significant, particularly if the other side is represented by lawyers. In general, if you are representing yourself, any costs incurred in the course of litigation other than reasonable and necessary out-of-pocket expenses cannot be recovered. Before commencing a case, you need to be aware of the likely costs involved.

Your costs

If you are involved in a court case you will need to consider some potential expenses you might incur. These will vary depending on the type of case.  If your case is prepared by a lawyer, they will do these things for you but you will still be charged for them.

Witness expenses

You may have to pay the expense incurred by any witness that you call to give evidence in your case. You will also be responsible for paying the fees of an expert witness that you employ. 

Subpoenas

If you issue any subpoenas you will need to pay the subpoenaed person’s costs of attending court and travelling to and from the Court. The Court might also make an order that you pay any reasonable expenses the person incurs in complying with the subpoena. This would include photocopying costs and time and labour expenses. You should establish how much these amounts are likely to be before issuing the subpoena.

Preparing your case

In order to present your case properly to the Court you might need to have documents, plans, diagrams etc photocopied. You may need to have some documents typed or you may need to bind documents. All of these are expenses that you will need to pay.

Other party's costs

If you are unsuccessful in your case, the Court might order you to pay the successful party’s costs of the proceedings. The Court’s approach to ordering costs varies depending on the type of case and the class of the Court’s jurisdiction in which the type of case occurs.

Costs according to case types

Classes 1 and 2 and some class 3 cases

For cases in Class 1 and Class 2 and some types of cases in Class 3 of the Court’s jurisdiction, the Court rules (Pt 3 rule 3.7 of the Land and Environment Court Rules 2007) provide that the Court is not to order payment of costs unless the Court considers that an order for the whole or any part of the costs is fair and reasonable in the circumstances. What is ‘fair and reasonable’ depends on the circumstances of each individual case.

You should obtain your own independent legal advice if you wish to determine if costs will apply in your particular situation. The Court rules provides some guidance on circumstances where the Court might consider a costs order is fair and reasonable. 

The circumstances include:

• that the proceedings involve, as a central issue, a question of law, a question of fact or a question of mixed fact and law, and the determination of such question:
  • in one way was, or was potentially, determinative of the proceedings, and
  • was preliminary to, or otherwise has not involved, an evaluation of the merits of any application the subject of the proceedings
• that a party has failed to provide, or has unreasonably delayed in providing, information or documents:
  • that are required by law to be provided in relation to any application the subject of the proceedings, or
  • that are necessary to enable a consent authority to gain a proper understanding of, and give proper consideration to, the application
• that a party has acted unreasonably in circumstances leading up to the commencement of the proceedings
• that a party has acted unreasonably in the conduct of the proceedings
• that a party has commenced or defended the proceedings for an improper purpose
• that a party has commenced or continued a claim in the proceedings, or maintained a defence to the proceedings, where:
  • the claim or defence (as appropriate) did not have reasonable prospects of success, or
  • to commence or continue the claim, or to maintain the defence, was otherwise unreasonable.

Class 4 cases

The usual practice for proceedings in Class 4 of the Court’s jurisdiction is that the successful party is entitled to have their costs of the proceedings paid by the unsuccessful party. If you are representing yourself you should keep this in mind when considering whether or not to commence a Class 4 case or defend a Class 4 case. You should give serious consideration to obtaining independent legal advice beforehand because the costs can be quite substantial. 

Class 4 matters are heard by a judge of the Court and often involve issues of law. A lawyer should be able to advise you on the likelihood of success in your case, and therefore the likelihood of a costs order being made and the amount of the costs that could be ordered.

The Court may decide not to make an order for the payment of costs against an unsuccessful applicant if it is satisfied that the proceedings have been brought in the public interest (see Pt 4 rule 4.2 of the Land and Environment Court Rules 2007).

Class 5 cases

If you are convicted of a criminal offence in a prosecution in Class 5 of the Court’s jurisdiction, the judge will usually order you to pay the prosecutor’s costs. If a judge dismisses the charge against you, you will not  usually be entitled to your costs, unless you can establish that the prosecutor acted unreasonably or improperly in bringing or conducting the prosecution (see s 214 of the Criminal Procedure Act 1986).

Classes 6 and 7 cases

For appeals against a conviction or sentence of the Local Court in Classes 6 or 7 of the Court’s jurisdiction, the Court can make a costs order as it thinks fit, but generally the unsuccessful party is ordered to pay the costs of the successful party. Costs can be ordered against unsuccessful applicants including prosecutors.

Class 8 cases

Generally in civil mining matters in Class 8 of the Court’s jurisdiction, the unsuccessful party is ordered to pay the costs of the successful party. You should give serious consideration to obtaining independent legal advice beforehand because the costs could be quite substantial.