Commonwealth Numbered Regulations - Explanatory Statements

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FEDERAL COURT OF AUSTRALIA REGULATIONS (AMENDMENT) 1996 NO. 321

STATUTORY RULES 1996 No. 321

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 the Regulations is to reduce the fee for filing a cross claim, in line with the fee payable for filing a document by which proceedings are commenced, and to provide for the fees payable for termination of employment proceedings.

Historically the fee for filing a cross claim in the Federal Court, provided for in item 10 of the Schedule to the Federal Court of Australia Regulations, has been the same as the fee for filing a document by which proceedings in the Federal Court are commenced, provided for in item 1 of the Schedule to the Federal Court of Australia Regulations.

The Federal Court of Australia Regulations (Amendment) [SR 1996 No. 189], which commenced on 1 September 1996, provided that the fee for filing a document commencing proceedings in the Federal Court and the fee for filing a cross claim in the Federal Court was $800 for a noncorporate litigant and $1,600 for a corporate litigant.

In the Senate, on 9 October 1996, the Government announced that there would be an amendment to the fee payable for applications in the Federal Court and that the amendment would apply from 1 September 1996, effectively overriding the existing fee. It was intended that the amendment would be both to the fee payable for filing a document commencing proceedings in the Federal Court and the fee payable for filing a cross claim in the Federal Court.

The Federal Court of Australia Regulations (Amendment) [SR 1996 No. 254] provide that the fee for filing a document by which proceedings in the Court are commenced is reduced to $500 for a non-corporate litigant and $1,200 for a corporate litigant. These Regulations also provide that the changed fee applies from 1 September 1996 and that those who paid the previous higher fee are eligible for a refund of the difference between the new lower fee and the previous higher fee.

However, similar amendments were not made in those Regulations to provide for a new lower fee for filing a cross claim, to apply from 1 September 1996, or to provide that a similar refund would be available to those who had paid the higher fee for filing a cross claim.

The Government also announced, on 9 October 1996, that the fees payable in the Federal Court for termination of employment proceedings would be the same as the fees payable for those proceedings in the Australian Industrial Relations Commission.

The Regulations provide that the fee for filing a cross claim is reduced to $500 for a noncorporate litigant and $1,200 for a corporate litigant.

The Regulations provide that the reduced fee applies from 1 September 1996, effectively overriding the current fee.

The Regulations provide that those people who paid a higher fee for filing a cross claim under the previous Regulations are entitled, upon application, to a refund of the difference between the previous higher fee and the new lower fee.

The Regulations provide that the fee for filing an application under section 170CP of the Workplace Relations Act 1996 is the same as the fee payable under the Workplace Relations Regulations for the lodgement of a similar application in the Australian Industrial Relations Commission.

Details of the Regulations are as follows:

Regulation 1 - Commencement

Regulation 1 provides that subregulations 4.2, 9.1 and 9.2 and regulations 5, 6, 7 and 8, which provide for the fee payable for termination of employment proceedings, commence on the same day as item 5 of Schedule 6 to the Workplace Relations and Other Legislation Amendment Act 1996, which provides for termination of employment proceedings.

The remaining provisions of the Regulations commence, under section 48 of the Acts Interpretation Act 1901, on gazettal. The note to Regulation 1 outlines this.

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 fee payable for filing a cross claim. Regulation 3 provides that the amendments made by subregulations 4.1 and 9.3, which provide for the fee for filing a cross claim, apply to a fee payable on or after 1 September 1996.

Regulation 4 - Regulation 2 (Filing fees etc.)

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 1, 5, 6, 7, 11, 12 or 14 of the Schedule.

As these Regulations provide for a filing fee for a cross claim, item 10 of the Schedule, of $500 for a non-corporate litigant and $1,200 for a corporate litigant, item 10 needs to be added to the list of exempted items in subregulation 2(1B).

Subregulation 4.1 omits, from subregulation 2(1B), "item 1, 5, 6, 7 and substitutes "item 1, 5, 6, 7, 10".

The fee payable for termination of employment proceedings is an individual fee and there is no different rate for corporate litigants. Therefore item 1A needs to be added to the list of exempted items in subregulation 2(1B).

Subregulation 4.2 inserts, after "item 1" in subregulation 2(1B), "item lA".

Regulation 5 - Regulation 2AA (Setting down fees)

Regulation 2AA provides for setting down fees to be payable when a matter is set down for hearing.

It is not intended that these fees apply to proceedings for termination of employment, as there are no similar fees payable in the Australian Industrial Relations Commission.

Subregulation 2AA(2) lists a number of proceedings and situations in which the setting down fees are not payable. Regulation 5 adds to this list a proceeding under section 170CP of the Workplace Relations Act 1996, which provides for termination of employment proceedings.

Regulation 6 - Regulation 2A (Hearing fees)

Regulation 2A provides for hearing fees to be payable when a matter heard.

It is not intended that these fees apply to proceedings for termination of employment, as there are no similar fees payable in the Australian Industrial Relations Commission.

Subregulation 2A(2) lists a number of proceedings and situations in which the setting down fees are not payable. Regulation 6 adds to this list a proceeding under section 170CP of the Workplace Relations Act 1996, which provides for termination of employment proceedings.

Regulation 7 - Regulation 2AB (Biennial increases in fees)

Regulation 2AB provides for biennial increases in fees.

It is not intended that the fee payable for termination of employment proceedings be biennially increased, as there is no similar provision in the Workplace Relations Regulations which provide for the fee payable for similar proceedings in the Australian Industrial Relations Commission.

Regulation 7 exempts the fee payable for termination of employment proceedings, under item I A in the Schedule, from biennial increases.

Regulation 8 - Regulation 2AC (Calculation of increase)

Regulation 2AC provides for the method of calculating the biennial increase provided for in regulation 2AB.

As noted above, it is not intended that the fee payable for termination of employment proceedings be biennially increased.

Regulation 8 exempts the fee payable for termination of employment proceedings, under item 1 A in the Schedule, from biennial increases.

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

Item 1 in the Schedule provides that the fee payable on filing a document by which proceedings, other than certain exempted proceedings, are commenced is $800.

Subregulation 9.1 adds a proceeding mentioned in item 1A, that is a proceeding for termination of employment, to the list of proceedings exempted from the proceedings covered by item 1 in the Schedule.

Subregulation 9.2 inserts item 1A in the Schedule. Item 1A provides that the fee payable on filing an application under section 170CP of the Workplace Relations Act 1996 is the fee payable under subregulation 30BD(1) of the Workplace Relations Regulations for lodgment of an application under subsection 170CE(1), (2), (3) or (4) of that Act.

Existing item 10 provides for a fee of $800 on filing a cross claim. As noted above, existing subregulation 2(1B) provides that the fee for a corporate litigant under this item is currently $1,600.

Subregulation 9.3 omits existing item 10 from the Schedule and substitutes new item 10. New item 10 provides that the fee on filing a cross claim is $1,200 if a corporation is liable to pay the fee and $500 in any other case.

The note to Regulation 9 provides that notes to the Schedule should be omitted and substituted for the notes provided for in the note to Regulation 9.

The effect of this is to amend Note 1 to the Schedule to add items 1A and 10 in the Schedule to the list of items exempted under subregulation 2(1B).

New note 2 explains that, as at 20 December 1996, subregulation 30BD(1) of the Workplace Regulations provides that a fee of $50 is payable for lodgment of an application under subsection 170CE(1), (2), (3) or (4) of the Workplace Relations Act 1996.

New note 3, which was previously note 2, explains that the fees mentioned in the Schedule, except the fee mentioned In item 1A, are subject to increase under. regulation 2AB.

Regulation 10 -Transitional provision

As outlined above, it is intended that a person who, prior to the commencement of these Regulations, paid a higher fee for filing a cross claim 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 10.1 provides that the Regulation applies to a person who has paid a fee mentioned in item 10 in the Schedule to the "Old Regulations", as defined in subregulation 10.4.

Subregulation 10.2 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 immediately after the commencement of these Regulations.

Subregulation 10.3 provides that the Registrar must make the payment as soon as practicable after receiving an application.

Subregulation 10.4 defines "Old Regulations" to be the Federal Court of Australia Regulations as in force immediately before this regulation.

Subregulations 4.2, 9.1 and 9.2 and regulations 5, 6, 7 and 8 commence on the same day as item 5 of Schedule 6 to the Workplace Relations and Other Legislation Amendment Act 1996. The remaining provisions of the Regulations commence on gazettal.