Commonwealth Numbered Regulations - Explanatory Statements

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FEDERAL COURT OF AUSTRALIA REGULATIONS (AMENDMENT) 1997 NO. 249

STATUTORY RULES 1997 No. 249

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 provide that a fee is not payable for an appeal from a judgment in a termination of employment matter, to clarify who is to pay the fee for use of the mediation services of the Federal Court and to give certain powers, in relation to fees, to Judicial Registrars.

The existing Regulations provide that the fee for filing an application for termination of employment proceedings, commenced m the Federal Court is the same as the fee payable under the Workplace Relations Regulations for the same proceedings in the Australian Industrial Relations Commission, and that the setting down fee, the hearing fee and the other fees listed in the Schedule to the Federal Court of Australia Regulations, for example for issuing subpoenas and notices of motions, are not payable for termination of employment proceedings.

However, under the existing Regulations, if a termination of employment matter is appealed, under section 24 of the Act, fees are payable.

The Regulations provide that a fee is not payable for an appeal, under section 24 of the Act, from a judgment referred to in subregulation 2(1C), which is an application under section 170CP of the Workplace Relations Act 1988 which provides for termination of employment matters. The Regulations also provide that the setting down fee and the hearing fee are not payable for an appeal from a judgment in a termination of employment matter.

The existing Regulations provide for a fee to be paid for the first attendance at mediation provided by a court officer and that a fee is payable by the person for whom the action is taken, unless the Court, a Judge or a Registrar orders otherwise. In the case of mediation it may not be clear for whom, the action is taken.

The Regulations provide that the fee for mediation is payable by the applicant in the proceedings to which the mediation relates, unless the Court, a Judge or a Registrar orders otherwise.

The existing Regulations provide for a number of circumstances in which the Court, a Judge or a Registrar exercises a power. For example, subregulation 2AA(3) provides that the Court, a Judge or a Registrar may order that a person other than the applicant is liable to pay the fee provided by subregulation 2AA(l). Paragraph 2AA(4)(a) provides that, if a setting down fee is unpaid, the Court, a Judge or a Registrar may order that no proceedings are to take place.

On 25 May 1997, the jurisdiction of the Industrial Relations Court of Australia was vested in the Federal Court and the position of Judicial Registrar in the Federal Court, exercising delegated judicial power was created.

The Regulations provide that in those circumstances where a power may be exercised by the Court, a Judge or a Registrar, that power may also be exercised by a Judicial Registrar.

Details of the Regulations are as follows:

Regulation 1 - Amendment

Regulation 1 provides that the Federal Court of Australia Regulations are amended as set out in these Regulations.

Regulation 2 - Regulation 2 (Filing fees etc.)

Existing subregulation 2(1A) provides that unless the Court, a Judge or Registrar orders otherwise, the fee is payable by the person for wham the action is taken.

Subregulation 2.1 omits existing subregulation 2(1A) and substitutes new subregulation 2(1A).

New subregulation 2(1A) provides that unless the Court, a Judge, Judicial Registrar or Registrar orders otherwise, the fee mentioned in item 13 of the Schedule, which is the fee for mediation, is payable by the applicant in the proceedings to which the mediation relates and any other fee mentioned in the Schedule is payable by the person for whom the action is taken.

The intention of this subregulation is to clarify who is to pay the fee for mediation.

Existing subregulation 2(1C) provides that a fee (other than a filing fee mentioned in item 1A of the Schedule) is not payable in relation to an application under section 170CP of the Workplace Relations Act 1988.

Subregulation 2.2 inserts new subregulation 2(1CA). New subregulation 2(1CA) provides that a fee is not payable for an appeal, mentioned in section 24 of the Federal Court of Australia Act 1976 from the judgment in an application referred to in subregulation 2(1C).

The effect of this subregulation is that for termination of employment matters, even if they proceed on appeal to the Full Court, the only fee payable is the filing fee.

Regulation 3 - Regulation 2AA (Setting down fees)

Existing regulation 2AA provides for setting down fees to be payable when a matter is set down for hearing. Existing subregulation 2AA(2) provides for the circumstances in which setting down fees are not payable.

Existing paragraph 2AA(2)(d) provides that setting down fees are not payable if the proceeding is one to which subregulation 2(2) applies.

Subregulation 3.1 inserts a reference to subregulation 2(1CA) into paragraph. 2AA(2)(d). The effect of this is to provide that setting down fees are also not payable if the proceeding is one to which new subregulation 2(1CA) (as inserted by subregulation 2.2) applies.

Regulation 4 - Regulation 2A (Hearing fees)

Regulation 2A provides for hearing fees to be payable when a matter is heard. Existing subregulation 2A(2) provides for the circumstances in which setting down fees are not payable.

Existing paragraph 2A(2)(d) provides that setting down fees are not payable if the proceeding is one to which subregulation 2(2) applies.

Subregulation 4.1 inserts a reference to subregulation 2(1CA) into paragraph 2A(2)(d). The effect of this is to provide that setting down fees are also not payable if the proceeding is one to which new subregulation 2(1CA) (as inserted by subregulation 2.2) applies.

Regulation 5 - Further amendments - Judicial Registrar

The existing Regulations provide for a number of circumstances, relating to fees, in which the Court, a Judge or Registrar may exercise a power.

Subregulation 5.1 amends those provisions to provide, in effect, that a Judicial Registrar may also exercise the power.