Commonwealth Numbered Regulations - Explanatory Statements

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FEDERAL COURT OF AUSTRALIA REGULATIONS (AMENDMENT) 1996 NO. 189

STATUTORY RULES 1996 No. 189

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 purpose of these regulations is to increase existing fees and to introduce a range of new fees for services provided by the Court. The overall level of cost recovery in all Commonwealth courts and tribunals is being increased to bring it into line with the average level of cost recovery in the State and Territory courts. The increased cost recovery is part of the overall Government strategy to reduce the Budget deficit.

The existing exemption and waiver provisions, which cover those in receipt of legal aid or income support payments and others who would suffer financial hardship if they had to pay fees, will remain to protect the disadvantaged.

The proposed Regulations provide that, for certain services, the fee for corporate litigants would be twice that for non-corporate litigants. Not all fees have this dual rate, but the majority of the major existing and new fees have such dual rates. This proposal recognises that corporate litigants often stand to make very substantial financial gains from litigation in the Court. In addition they are more likely to be able to obtain a taxation deduction for court fees than non-corporate litigants.

Details of these Regulations are as follows:

Regulation 1 - Commencement

Regulation 1 provides that the Regulations commence on 1 September 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 - Regulation 1A (Interpretation)

Regulation 3 inserts a number of definitions which are self-explanatory. The regulation also inserts a definition of 'corporation' into the regulations and indicates that the word has the same meaning as in the Corporations Law. That definition includes all bodies corporate except for such bodies as Co-operatives, Building Societies and bodies incorporated under State and Territory Associations Incorporation Acts.

Regulation 4 - Regulation 2 (Fees)

Subregulation 4.1 omits the existing subregulation 2(1) and inserts new subregulations 2(1), 2(1A) and 2(1B).

Existing subregulation 2(1) is repealed and is replaced by new subregulation 2(1) which deals with what fees are payable in relation to actions taken by the Court or an officer of the Court. These fees are set out in the Schedule to the Regulations. The subregulation states that the fees prescribed in the Schedule are those to be charged, except where particular regulations set out certain fees such as the setting down fee or fees payable by corporations under proposed new subregulation 2(1B).

New subregulation 2(1A) states that usually a fee will be payable by the party on whose behalf certain actions are taken, but the provision also provides for a discretion for the Court, a Judge or a Registrar to order that another party pay. This may occur, for example, where one party has been deliberately obstructive.

New subregulation 2(1B) provides that for all items in the Schedule, except Items 5, 6, 7, 11, 12 or 14, corporate litigants will pay twice the fee of non-corporate litigants.

Existing subregulation 2(4) provides for the circumstances in which the fees provided for in regulation 2 are not payable.

Subregulation 4.2 omits existing subparagraph (4)(b)(i) and substitutes new subparagraph (4)(b)(i) and (4)(b)(ia).

Existing subparagraph (4)(b)(i) contains a list of cards which were previously issued by the Department of Social Security but which are no longer issued. New subparagraph (4)(b)(i) contains an up-dated list of the cards issued by the Department of Social Security. In order to avoid having to change the Regulations every time the titles of the cards are changed, new subparagraph (4)(b)(ia) provides an exemption for the holder of any other card issued by the Department of Social Security or the Department of Veterans' Affairs, that certifies entitlement to Commonwealth health concessions.

Existing subparagraph (4)(b)(iv) provides that the fee is not payable if the person liable to pay it is in receipt of AUSTUDY. The policy intention is to exempt from the liability to pay fees anyone who is in receipt of student assistance income. New subparagraph (4)(b)(v) provides that the exemption is extended to persons in receipt of benefits under the ABSTUDY Scheme.

Regulation 5 - New regulation 2AA

Regulation 5 inserts new regulation 2AA, which provides for a new "setting down fee". The current regulation 2A provides that when the Court, a Judge or a Registrar fixes a date for the hearing of an application or an appeal a hearing fee of $616 is payable for the hearing of the matter. The existing hearing fee is a one-off fee, regardless of the length of the hearing of the matter.

New subregulation 2AA(1) provides that if the Court, a Judge or a Registrar fixes a date for the hearing of a proceeding the setting down fee is payable for the setting down of the proceeding for hearing. For an application or an issue or question in an application paragraph 2AA(1) provides for a setting down fee of $2,000 if the litigant is a corporation or $1,000 for a non-corporate litigant. For an appeal, to a single Judge or to the Full Court, regulation 2AA would provide for a setting down fee of $3,000 for a corporation or $1,500 for a non-corporate litigants. If both a corporation and a non-corporate litigant are applicants, the fee for corporations is payable.

New subregulation 2AA(2) sets out for the circumstances in which the setting down fee is not payable. These are substantially the same as those situations in which the current hearing fee is not payable, under existing subregulation 2A(2). The only differences are that new subparagraph 2AA(2)(g)(i) is in slightly different terms to existing subparagraph 2A(f)(i), to reflect changes in the cards which are issued by the Department of Social Security.

In order to avoid having to change the Regulations every time the titles of the cards are changed, new subparagraph (2)(g)(ia) provides an exemption for the holder of any other card issued by the Department of Social Security or the Department of Veterans' Affairs, that certifies entitlement to Commonwealth health concessions. The changes mirror those in relation to subparagraphs 2(4)(b)(i) and (ia).

Existing subparagraph (2)(g)(iv) provides that the fee is not payable if the person liable to pay it is in receipt of AUSTUDY. The policy intention is to exempt from the liability to pay fees anyone who is in receipt of student assistance income. New subparagraph (2)(g)(v) provides that the exemption is extended to persons in receipt of benefits under the ABSTUDY Scheme as has been done in subparagraph 2(4)(b)(v).

New subregulation 2AA(3) specifies that the person liable to pay the setting down fee is the applicant or the appellant unless a Court, a Judge or Registrar orders another party to pay the fee. It is in similar terms to existing subregulation 2A(3), but has been re-drafted in plain English.

New subregulation 2AA(4) provides a range of options for the Court, a Judge or the Registrar, if the setting down fee is unpaid, and is in similar terms to existing subregulation 2A(4).

Regulation 6 - Regulation 2A (Hearing fee)

In the existing Regulations, there is provision for a hearing fee. As outlined above, the existing flat rate hearing fee, payable for the hearing of a proceeding, is to be termed a "setting down fee". Fees will continue to be payable in the Federal Court for the hearing itself, but instead of being charged as a flat fee they will be charged according to the time taken for the hearing.

Subregulation 6.1 omits existing subregulation 2A(1) and substitutes new subregulation 2A(1). New paragraphs 2A(1)(a) and (b) provide that for the hearing of a notice of motion or the hearing of an appeal from a decision of a Registrar, a hearing fee of $400 for every half day, or part of a half day is payable if the litigant is a corporation or $200 per half day for an individual.

New paragraph 2A(1)(c) provides that for the hearing of an application, or an issue in question in an application or an appeal, a hearing fee of $1,100 for each day is payable if the litigant is a corporation or $550 if the litigant is an individual.

Subregulation 6.2 omits existing paragraph 2A(2)(a) and substitutes new paragraph 2A(2)(a). New paragraph 2A(2)(a) provides that the hearing fee is not payable if the sole purpose of the hearing is the delivery of a reserved judgment.

Subregulation 6.3 omits existing subparagraph 2A(2)(f)(i) and substitutes new subparagraph 2A(2)(f)(i), to update the references to cards issued by the Department of Social Security.

In order to avoid having to change the Regulations every time the titles of the cards are changed, new subparagraph (2)(g)(ia) provides an exemption for the holder of any other card issued by the Department of Social Security or the Department of Veterans' Affairs, that certifies entitlement to Commonwealth health concessions.

Existing subparagraph (2)(f)(iv) provides that the fee is not payable if the person liable to pay it is in receipt of AUSTUDY. The policy intention is to exempt from the liability to pay fees anyone who is in receipt of student assistance income. New subparagraph (2)(f)(v) provides that the exemption is extended to persons in receipt of benefits under the ABSTUDY Scheme.

Subregulation 6.5 provides for a new subregulation 2A(3), which specifies for the person liable to pay a hearing fee. New subregulation 2A(3) is, in substance, existing subregulation 2A(3) re-drafted in plain English.

Subregulation 6.6 omits existing subregulation 2A(5) and inserts new subregulations 2A(5) and 2A(6).

New subregulation 2A(5) provides for the deadlines by which the hearing fee must be paid. If the hearing day to which the hearing fee relates is the working day immediately following a scheduled hearing day for the proceeding, the proposed Regulations would provide that the hearing fee would be payable by 9.30am on the day of the hearing. If the hearing day to which the hearing fee relates is not the working day immediately following a scheduled hearing day for the proceeding, the proposed Regulations would provide that the hearing fee would be payable not later than 2 days before the hearing day or if the hearing day is less than two days after the process is filed then at the time it is filed.

New subregulation 2A(6) provides that "half day" means a period of up to 3 hours in a scheduled hearing day.

Regulation 7 - New regulations 2AB, 2AC and 2AD

Regulation 7 inserts new regulations 2AB, 2AC and 2AD.

New regulation 2AB provides that all fees prescribed by these Regulations will be increased biennially, on the anniversary of 1 July 1996.

New regulation 2AC provides for the method by which the increase is to be calculated. New regulation 2AC(1) defines a number of the terms necessary to calculate the increase, including the CPI number which is defined as the All Groups Consumer Price Index number (being the weighted average of the 8 Australian capital cities) published by the Australian Statistician.

New subregulation 2AC(2) provides for the formula for calculating the fee increases. As examples of how the increases are to be calculated: at the end of the 2 year period commencing 1 July 1996, each of the existing fees will be multiplied by the CPI number for the March quarter 1998 and divided by the CPI number for the March quarter 1996. The fees will only be increased if the CPI number for the March quarter 1998 is greater than that for the March quarter 1996. Similarly, at the end of the 2 year period commencing 1 July 1998, each of the existing fees will be multiplied by the CPI number for the March quarter 2000 and divided by the CPI number for the March quarter 1998. Again, the fees will only be increased if the CPI number for the March quarter 2000 is greater than that for the March quarter 1998.

New subregulation 2AC(3) provides for the rounding of the increased fees to the nearest whole dollar and, if the amount to be rounded is 50 cents, rounded down.

New subregulation 2AC(4) provides that if the Australian Statistician publishes a replacement CPI number in respect of an already published CPI number for a March quarter, the replacement CPI number is to be disregarded. The effect of this subregulation is that once the fees have been increased biennially, in accordance with officially published CPI numbers, any alteration in the CPI numbers won't necessitate an alteration in the increased fees during the biennium.

New subregulation 2AC(5) provides that if the Australian Statistician changes the reference base for the CPI then the new reference base will be adopted for the purposes of these Regulations.

New regulation 2AD provides that in substance the existing provisions in the Regulations relating to refund of bearing fees would apply to both a setting down fee and a hearing fee. The only change will be to deal with a situation where a matter receives a hearing day within 10 working days of the day of lodging the proceeding. In this case it will clearly not be possible to provide 10 working days notice to the Registrar so at least 2 working days' notice must be given.

Regulation 8 - New Regulation 2B (Notice of decision: review by the Administrative Appeals Tribunal)

Existing Regulation 2B provides a right to seek a review of a decision of the Registrar where a decision is made relating to the waiving of fees for persons facing financial hardship. Regulation 8 omits from subregulation 2B(1) the reference to paragraph 2(4)(c) and inserts a reference to both paragraph 2(4)(c) and new paragraph 2AA(2)(h), which relates to the new setting down fee.

Regulation 9 - Schedule (Fees to be taken in the Registry of the Court)

Regulation 9 omits the existing Schedule and substitutes a new Schedule. The Schedule lists fees to be taken in the Registry of the Court.

The fees for Items 1, 2, 3, 3A, 4, 8 and 9 of the Schedule are specifically increased to take account of the resource-intensive nature of the services required. The fees for corporations for these matters will he double the fee for non-corporate litigants.

There is a new fee added at Item 7 which provides for a fee of $2.00 in every $100 received when goods are seized and sold by the Court in its Admiralty jurisdiction.

There is also be a new fee for cross claims at Item 10. Given that these claims deal with a new issue they will be charged at the same rate as for a document which initiates proceedings in Item 1. Again the fees for a corporation are double this fee.

Item 11 adds a new fee for the issuing of subpoena for evidence to be produced or a person to give evidence that fee will be $40.

There is also be a new fee at Item 12 for taxation of a bill of costs. That fee, which will be payable on the value of the bill as filed with the Court, will be $7.50 for every $100 or part of $100 of the bill.

Item 13 adds a new fee for mediation services provided by the Court. The new fee is $250 for individuals and $500 for corporate litigants.

The fee for new Item 14, for each request to search an inspect the files of the Court, is $20.

These Regulations commence on 1 September 1996.