Commonwealth Numbered Regulations - Explanatory Statements

[Index] [Search] [Download] [Related Items] [Help]


HIGH COURT OF AUSTRALIA (FEES) REGULATIONS (AMENDMENT) 1996 NO. 190

EXPLANATORY STATEMENT

STATUTORY RULES 1996 No. 190

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

JUDICIARY ACT 1903

HIGH COURT OF AUSTRALIA (FEES) REGULATIONS (AMENDMENT)

Subsection 88(ca) of the Judiciary Act 1903 provides that the Governor-General may make regulations prescribing the fees to be paid in respect of proceedings in the Court and the execution of the process of the High Court.

The proposed Regulations will increase most of the existing fees in the High Court and introduce new fees. The overall level of cost recovery in all Commonwealth courts and tribunals is being increased to bring it into fine with the average level of cost recovery in the State and Territory courts and these increases are 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 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 for the Regulations to commence on 1 September 1996.

Regulation 2 - Amendment

Regulation 2 provides for the High Court of Australia (Fees) Regulations to be amended as set out in these Regulations.

Regulation 3 - Regulation 3 (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 4 (Filing fees etc.)

Subregulation 4.1 omits the existing subregulations 4(1) and 4(2) and inserts new subregulations 4(1), 4(1A), 4(2) and 4(2A).

New subregulation 4(1) provides that a fee is payable for filing, issuing or scaling a document in the Registry of the High Court, or for obtaining a document or service, and that the fees payable are set out in Part 1 of Schedule 1. This new subregulation has the same effect as existing subregulation 4(1), with only minor drafting changes to make it simpler.

New subregulation 4(1A) provides that if a corporation is liable to pay a fee under subregulation 4(1), the amount of the fee payable is, in general, twice the amount of the fee listed in Schedule 1. The fees payable in respect of a criminal special leave application, a criminal notice of appeal, a certificate of the Registrar and for taxing a bill of costs are the same for corporations as for everyone else.

New subregulation 4(2) provides that a fee is payable for obtaining a document or service set out in Part 2 of Schedule 1. This new subregulation has the same effect as existing subregulation 4(2), with only minor drafting changes to make it simpler.

New subregulation 4(2A) sets out who is liable to pay a fee prescribed in the Schedule. Unless the Court, a Judge or Registrar otherwise orders, the person seeking the service or the sealing of a document is liable to pay.

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

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

Existing subparagraph (4)(b)(i) contains a list of cards which used to be issued by the Department of Social Security but which are no longer issued. The new subparagraph contains an up-dated list of the cards issued by the Department of Social Security. The policy intention is to exempt from the liability to pay fees anyone who is entitled to Commonwealth health concessions. In order to avoid having to change the Regulations every time the tides 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.

Subregulation 4.3 omits existing subparagraph (4)(b)(IV) and substitutes new subparagraphs (4)(b)(iv) and (4)(b)(v).

Existing subparagraph (4)(b)(IV) provides that the fee is not payable if the person liable to pay it is in receipt of AUSTUDY. New subparagraph (4)(b)(iv) is in the same terms, only the numbering changes to correct a drafting error. 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 - Regulation 5 (Hearing fees)

Regulation 5 omits existing regulation 5 and substitutes new regulation 4A - Hearing fee, new regulation 5 - Daily hearing fee, new regulation 5A - Biennial increases in fees, new regulation 5B - Calculation of increase and new regulation 5C Refund of fees.

The current Regulations provide that when a notice of appeal or a writ of summons or petition is filed in the Registry of the High Court a fee, called a hearing fee, is payable for the hearing of the proceeding.

New subregulation 4A(1) provides that if a notice of appeal (other than an application for leave or special leave to appeal), a writ of summons or a petition initiating a proceeding is filed in a Registry of the High Court a hearing fee is payable when a matter receives an actual date for hearing. For a notice of appeal in relation to a criminal proceeding the hearing fee is $616, the same as the current hearing fee. For a notice of appeal in relation to a civil proceeding, a writ of summons or a petition the hearing fee is $3,000 for a corporation or $1,500 in any other case.

New subregulation 4A(2) provides for the circumstances in which the hearing fee is not payable. These are substantially the same as in the existing Regulations. The only differences are that new subparagraph 4A(2)(c)(i) contains an up-dated list of concession cards issued by the Department of Social Security and new subparagraph 4A(2)(c)(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)(c)(iv) provides that the fee is not payable if the person liable to pay it is in receipt of AUSTUDY. New subparagraph (2)(c)(v) provides that the exemption is extended to persons in receipt of benefits under the ABSTUDY Scheme.

New subregulation 4A(3) provides for who is to pay the hearing fee. It is in similar terms to existing subregulation 4A(3), but has been drafted in plain English.

New subregulation 4A(4) provides for a range of options for the Court or a Judge, if the hearing fee is unpaid, and is in similar terms to existing subregulation 5(4).

As outlined above, the existing hearing fee, payable for the hearing of a proceeding, will continue to apply. In addition, there will now be a new fee called a "daily hearing fee" payable in the High Court, but instead of being charged as a flat fee it will be charged according to the amount of hearing time.

New subregulation 5(1) provides that a daily fee is payable. For the hearing of a chamber summons, a notice of motion or an application under rule 1 or Order 55 of the High Court Rules, the Regulations provide for a daily hearing fee of $500 for a corporation and $250 in any other case for each half day or part thereof. For the hearing of a proceeding before the Full Court, other than an application for leave or special leave to appeal or a criminal appeal, the Regulations provide for a daily hearing fee of $1,500 for a corporation and $750 in any other case for each day or part of a day.

New subregulation 5.2 is in similar terms to the existing provision but contains a number of new provisions. New paragraph 5(2)(a) provides that the daily hearing fee is not payable if the sole purpose of the heating is the delivery of a reserved judgment.

New subparagraph 5(2)(c)(i) updates 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)(c)(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)(c)(iv) provides that the fee is not payable if the person liable to pay it is in receipt of AUSTUDY. New subparagraph (2)(c)(v) provides that the exemption is extended to persons in receipt of benefits under the ABSTUDY Scheme.

New subregulation 5(3), provides for the person liable to pay a hearing fee. New subregulation 5(3) is, in substance, existing subregulation 5(3) re-drafted in plain English.

New subregulation 5(4) provides, in similar terms to existing subregulation 5(4), for a range of options for the Court or a Judge, if the heating fee is unpaid, and is in similar terms to existing subregulation 5(4).

New subregulation 5(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 5(6) provides that "half day" means a period of up to 3 hours in a scheduled hearing day.

New regulation 5A provides that a fee, prescribed by regulation 4, 4A or 5 (which is all of the fees prescribed under the Regulations), is increased biennially, on the anniversary of 1 July 1996.

New regulation 5B provides for the method by which the increase is to be calculated. New subregulation 5B(1) defines a number of the terms necessary to calculate the increase, including CPI number as being the All Groups Consumer Price Index number (being the weighted average of the 8 Australian capital cities) published by the Australian Statistician.

New subregulation 5B(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, the 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 5B(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 5B(4) provides that if the Australian Statistician publishes a replacement CH 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 CM numbers won't necessitate an alteration in the increased fees during the biennium.

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

New regulation 5C provides for the circumstances in which a person who has paid a hearing fee or a daily hearing fee is entitled to a refund. The new regulation provides that in substance the existing provisions relating to refund of hearings fees would apply to both a hearing fee and a daily 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 days notice to the Registrar so at least 2 working days' notice must be given.

Regulation 6 - Regulation 6 (Notice of decision: review by the Administrative Appeals Tribunal)

Existing Regulation 6 provides a right to seek a review by the Administrative Appeals Tribunal of a decision of the Registrar where a decision is made relating to the waiving of fees for persons facing financial hardship. Subregulation 6.1 inserts into existing subregulation 6(1) a reference to a decision being taken under new paragraph 4A(2)(d), relating to the new hearing fee.

Subregulation 6.2, which corrects a drafting error, renumbers the existing provisions, so that what was paragraph 6(3)(c) is now 6(3)(b).

Regulation 7 - Schedule 1 (Fees for filing, issuing or sealing a document or obtain a service)

Subregulation 7.1 omits Part 1 of Schedule 1 and substitutes new Part 1 of Schedule 1. New Part 1 of Schedule 1 lists the increased fees payable for existing Items on the current Schedule 1. Column 2 of Item 3 is amended to make it clear that it applies to civil leave and special leave applications. New Part 1 of Schedule 1 also includes a new Item - application for summons for directions, with a fee payable of $250. In accordance with new Regulation 4 all fees set out in the Schedule would be double for corporations excepting those set out in items 4, 6A, 7 or 8.

Subregulation 7.2 omits the existing fee for Item 13 of Part 2 of Schedule 1 and substitutes a new fee.

These Regulations commence on 1 September 1996.


[Index] [Related Items] [Search] [Download] [Help]