Commonwealth Numbered Regulations - Explanatory Statements

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FEDERAL COURT OF AUSTRALIA REGULATIONS (AMENDMENT) 1996 NO. 254

STATUTORY RULES 1996 No. 254

ISSUED BY THE AUTHORITY OF THE ATTORNEY-GENERAL AND MINISTER FOR JUSTICE

FEDERAL COURT OF AUSTRALIA ACT 1976

FEDERAL COURT OF AUSTRALIA REGULATIONS (AMENDMENT)

Subsection 60(1) of the Federal Court of Australia Act 1976 (the Act) provides that the Governor-General may make regulations prescribing the fees to be paid in respect of proceedings in the Court.

The previous Federal Court of Australia Regulations provided for an application fee of $800 for non-corporate litigants and $1,600 for corporate litigants, a setting down fee for an appeal of $1,500 for non-corporate litigants and $3,000 for corporate litigants and a bearing fee, for each day of hearing, of $550 for non-corporate litigants and $1,100 for corporate litigants. These fees, which are provided for in the Federal Court of Australia Regulations (Amendment) [SR 1996 No. 189], commenced on 1 September 1996.

In the Senate, on 9 October 1996, the Government announced that there would be amendments to these fees.

The purpose of these Regulations is to provide for these amendments. The Regulations provide that the application fee is reduced to $500 for non-corporate litigants and $1,200 for corporate litigants. The setting down fee for an appeal is reduced to $1,000 for non-corporate litigants and $2,000 for corporate litigants. The hearing fee is reduced to $400 for non-corporate litigants and $800 for corporate litigants, and is only payable for the second and subsequent days of hearing (subregulation 6.1).

The Regulations provide that the reduced fees apply from 1 September 1996, effectively overriding the current fees.

The Regulations provide that those people who paid a higher fee under the existing Regulations will be entitled, upon application, to a refund of the difference between the previous higher fee and the new lower fee.

The Regulations also clarify when some of the existing fees for services provided by the Federal Court are payable.

The Regulations also amend the regulation that provides for biennial CPI increases, to clarify the fee level to be used as the basis for CPI adjustment. The proposed Regulations will ensure that the fees that are increased automatically are the fees that are payable at the end of the prescribed period.

The Regulations also clarify that the fee payable for mediation by a court officer is a one-off fee, payable for the first attendance at the mediation.

The Government also announced, on 9 October 1996, that the fees payable for termination of employment matters would be the same as any fees payable in the Australian Industrial Relations Commission (AIRC) for these matters. The Government has announced that it is intended that there will be a $50 filing fee in the AIRC for these matters.

It is not possible to amend the Federal Court Regulations to provide for the fees payable for termination of employment matters until the Workplace Relations and Other Legislation Amendment Bill has been passed. No termination of employment matters will go to the Federal Court before the Bill is passed. As soon as the Bill has been passed, the Government will make the necessary amendments to the Federal Court Regulations.

Details of the Regulations are as follows:

Regulation 1 - Commencement

Regulation 1 provides that the Regulations commence on 1 December 1996.

Regulation 2 - Amendment

Regulation 2 provides for the Federal Court of Australia Regulations to be amended as set out in these Regulations.

Regulation 3 - Application

Regulation 3 provides for the retrospective reduction of the application fees, the setting down fees and the hearing fees. Regulation 3 provides that the amendments made by regulation 5 and sub-regulations 6.1 and 8.1 apply to a fee payable on or after 1 September 1996.

Regulation 4 - Regulation 2 (Filing fees)

Subregulation 2(1B) provides that if a corporation is liable to pay a fee under subregulation (1A) the amount of the fee payable is twice the amount of the fee set out in the Schedule, except for a fee in respect of item 5, 6, 7, 11, 12 or 14 of the Schedule. As these Regulations provide for an application fee, item 1 of the Schedule, of $500 for non-corporate litigants and $1,200 for corporate litigants, item 1 needs to be added to the list of exempted items in subregulation 2(1B).

Subregulation 4.1, omits, from subregulation 2(1B), "item 5" and substitutes "item 1, 5".

Existing subregulation 2(3) provides that a document shall not be filed unless the fee payable has been paid. It makes no mention of when the fees for certain services, provided for in the Schedule, are payable.

Subregulation 4.2 omits existing subregulation 2(3) and substitutes new subregulation 2(3). New subregulation 2(3) provides that a document shall not be filed, or a service mentioned in items 11, 12, 13 of 14 of the Schedule be provided, unless the fee payable for that filing or service has been paid.

Regulation 5 - Regulation 2AA (Setting down fees)

Regulation 2AA provides for setting down fees, payable if the Court, a Judge or Registrar fixes a date for the hearing of a proceeding. Paragraph 2AA(1)(b) provides for the setting down fees payable for an appeal.

Subregulation 5.1 omits $3,000 in subparagraph 2AA(1)(b)(i), which provides for a setting down fee for an appeal if the person liable to pay the fee is a corporation, and substitutes $2,000.

Subregulation 5.2 omits $1,500 in subparagraph 2AA(1)(b)(ii), which provides for a setting down fee for an appeal in any other case, and substitutes $1,000.

Regulation 6 - Regulation 2A (Hearing fees)

Existing regulation 2A provides for daily hearing fees payable for the hearing of a proceeding. Paragraph 2A(1)(c) provides that, for the hearing of an application, an issue or question in an application, or an appeal, a hearing fee, of $1,100 for corporate litigants and $550 in any other case, is payable for each day of hearing.

Subregulation 6.1 omits existing paragraph 2A(1)(c) and substitutes new paragraph 2A(1)(c). New paragraph 2A(1)(c) provides that, for the hearing of an application, an issue or question in an application, or an appeal, a hearing fee, of $800 for corporate litigants and $4000 in any other case, is payable. The hearing fee is payable for each day, or part of a day of healing after the first day of hearing.

Under existing subregulation 2(2A), a filing fee is not payable in relation to an appeal under section 14ZZ of the Taxation Administration Act 1953, an appeal from a decision of the Administrative Appeals Tribunal in its Taxation Appeals Division or an appeal from a single Judge to the Full Court in relation to an appeal under section 14ZZ of the Taxation Administration Act 1953, if the Registrar who receives the appeal is satisfied that the appeal meets the criteria set out in subregulation 2B. Subregulation 2B provides that the criteria are that the person lodging the appeal has lodged another appeal and paid a fee in relation to it, that the same paragraph of subregulation 2(2A) applies to both appeals and the appeal concerns an issue that is substantially the same as an issue raised in the other appeal.

Existing paragraph 2AA(2)(e) provides for the same exemption, for certain types of taxation appeals, from liability for setting down fees.

Existing subregulation 2A(2) provides for the situations in which a hearing fee is not payable. No similar exemption is provided for hearing fees although clearly the intention is that these types of taxation appeals not be subject to any Federal Court fees.

Subregulation 6.2 inserts new paragraph 2A(2)(da) that provides for this exemption in relation to hearing fees and is in similar terms as the existing exemption for setting down fees under paragraph 2AA(2)(e).

Regulation 7 - Regulation 2AC (Calculation of increase)

Regulation 2AB provides that a fee prescribed by regulation 2, 2AA or 2A is increased on each biennial anniversary of 1 July 1996. Regulation 2AC provides for the method of calculation of the increase, based on the Consumer Price Index (CPI).

Subregulation 2AC(2) defines the 'fee' that is to be used as the basis for calculating the increased fee as the 'fee in force during the relevant period'. Regulation 7 amends this definition of 'fee' to provide that the 'fee' used is the 'fee in force at the end of the relevant period'. This ensures that if the fee payable is altered during the period leading up to a biennial increase, the fee on which the calculation is based is the last fee payable.

Regulation 8 - Schedule (Fees to be taken in the Registry of the Court)

Item 1 provides for a fee of $800 on filing a document by which proceedings in the Court, with certain exceptions, are commenced. As noted above, existing subregulation 2(1B) provides that the fee for a corporate litigant under this item is currently $1,600.

Subregulation 8.1 omits existing item 1 from the Schedule and substitutes new item 1. New item 1 provides that the fee on filing a document by which proceedings in the Court, with certain exceptions, are commenced is $1,200 if a corporation is liable to pay the fee and $500 in any other case.

Item 13 provides for a fee of $250 payable "for each attending of a court officer at mediation". The intention is that the $250 is a one-off fee, payable for the first attendance at the mediation, and some concern was expressed that this was not clear. Subregulation 8.2 clarifies this intention.

Subregulation 8.2 omits existing item 13 and substitutes "For mediation by a court officer - for the first attendance at the mediation".

The note to Regulation 8 provides that Note 1 to the Schedule should be omitted and substituted for the note provided for. The effect of this amendment to the note is to add the reference to item 1 from the list of items exempted under subregulation 2(1B).

Regulation 9 - Transitional provision

As outlined above, it is intended that a person who, prior to the commencement of these Regulations on 1 December 1996, paid a higher fee than the fee provided for in these Regulations will be entitled to a refund of the difference between the previous higher fee and the lower fee provided for in these Regulations.

Subregulation 9.1 provides that the Regulation applies to a person who, before 1 December 1996, paid a fee under paragraph 2AA(1)(b) or 2A(1)(c) or mentioned in item 1 in the Schedule.

Subregulation 9.2 provides that a person may apply in writing to a Registrar of the Court for payment of the difference between the fee paid and the fee payable after the commencement of these Regulations.

Subregulation 9.3 provides that the Registrar must make the payment as soon as practicable after receiving an application.

Subregulation 9.4 defines "Old Regulations" to be the Federal Court of Australia Regulations as in force immediately before 1 December 1996.

These Regulations commence on 1 December 1996.