Federal Court of Australia Regulations (Amendment) 1991 No. 448
EXPLANATORY STATEMENT
Statutory Rules 1991 No. 448
FEDERAL COURT OF AUSTRALIA ACT 1976
FEDERAL COURT OF AUSTRALIA REGULATIONS (AMENDMENT)
Subsection 60(1) of the Federal Court of Australia Act 1976 provides that the Governor-General may make regulations prescribing the fees to be paid in respect of proceedings in the Court.
Subregulation 2(1) of the Federal Court of Australia Regulations provides that, subject to regulation 2, the fees payable in respect of proceedings in the Court are the fees specified in the Schedule to the Regulations.
The proposed regulations provide new fees to be payable in relation to proceedings in the Federal Court and provide a revised basis for the waiver of the fees.
Regulation 1 provides that the regulations are to commence on 1 April 1992.
Regulation 2 is formal.
Regulation 3 amends regulation 2 which provides the fees payable in the Federal Court.
Subregulation 2(1) is amended to refer to both Regulation 2 and new regulation entitled Regulation 2A. This is a drafting amendment.
Subregulation 2(4) is omitted. The omitted subregulation provides for the waiver of fees for legally aided litigants and those for whom payment would impose hardship. Subregulation 2(4) is substituted by subregulation which provides that a fee is not payable if the person liable to pay the fees:
• has been granted legal aid under a legal aid scheme or service established under the Commonwealth State or Territory law or approved by the Attorney-General; or
• is the holder of a pensioner health benefit card, a health benefit card, a pharmaceutical benefits concession card or a health care card; or
• an inmate of a prison or is otherwise lawfully detained in a public institution; or
• a child under the age of 18 years; or
• in receipt of AUSTUDY within the meaning of the AUSTUDY Regulations; or
• the Registrar waives payment of the fee because, in his or her opinion, payment of the fee would cause financial hardship. The Registrar is to have regard to the income, assets and liabilities of the applicant in making his or her decision.
Regulation 4 adds new regulations 2A and 2B to the Regulations.
New regulation 2A provides for a hearing fee and new regulation 2B provides for review of waiver decisions.
New subregulation 2A(1) provides for the payment of a fee of $500 once the Court, a Judge, the Registrar or a District Registrar fixes a date for the hearing of an application or an issue or question in an application or an appeal.
New subregulation 2A(2) provides for the non-payment of a hearing fee for an application or appeal when:
• the hearing is of an interlocutory nature only;
• a hearing fee has been paid under the Regulations or another law of the Commonwealth for the application or appeal, and has not been refunded;
• the application or appeal is in relation to a matter for which no fee is payable because subregulation 2(2) applies;
• the person liable to pay the fee has been granted legal aid under a legal aid scheme or service established under the Commonwealth, State or Territory law or approved by the Attorney-General;
• the person liable to pay the fee is:
(i) the holder of a pensioner health benefit card, a health benefit card, a pharmaceutical benefits concession card or a health care card; or
(ii) an inmate of a prison or is otherwise lawfully detained in a public institution; or
(iii) a child under the age of 18 years; or
(iv) in receipt of AUSTUDY within the meaning of the AUSTUDY Regulations; or
• the Registrar or a District Registrar waives payment of the fee on the grounds that payment of the fee would cause financial hardship to the person liable to pay the fee. The Registrar is to have regard to the income, assets and liabilities of the applicant in making his or her decision.
New subregulation 2A(3) provides that the person liable to pay a hearing fee is the applicant or the appellant or, if the Court, a Judge, the Registrar or a District Registrar so orders another party to the application or appeal or 2 or more of the parties to the application or appeal in the proportions ordered by the Court, a Judge, the Registrar or a District Registrar.
New subregulation 2A(4) provides that if a hearing fee that is payable for an application or appeal is unpaid the Court, a Judge, the Registrar or a District Registrar may order that no proceedings, or no proceedings other than specified proceedings, are to take place, except by leave, in the matter to which the application or appeal relates. The subregulation also provides that a person other than the person liable to pay the fee may pay the fee without affecting any power of the Court, a Judge, the Registrar or a District Registrar to make an order for costs in respect of the amount of the fee. The subregulation also provides for the vacating of the date fixed for hearing by the Court, a Judge, the Registrar or a District Registrar if the fee is unpaid.
New subregulation 2A(5) provides for refund of the hearing fee if the hearing of the application or appeal for which the fee was paid does not proceed or where the fee was not payable. To obtain a refund on the ground that the hearing did not proceed, a party must have notified the Registrar no less than 10 working days before the listed date that the matter would not proceed.
New subregulation 2B(1) provides for the review by the Administrative Appeals Tribunal of a decision of the Registrar or a District Registrar under paragrah 2(4)(c) or 2A(2)(g), not to waive fees on the ground of financial hardship.
New subregulation 2B(2) requires a Registrar to provide reasons for refusing an application for waiver of fees. It provides that if the Registrar makes a decision under paragraph 2(4)(c) or 2A(2)(g), a notice must be given to the person liable to pay the fee:
(a) containing the terms of the decision; and
(b) giving written reasons for the decision; and
(c) containing a statement to the effect that subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of the decision.
New subregulation 2B(3) provides that a notice under subregulation 2B(2) must be given within 28 days of the date of the decision and new subregulation 2B(4) provides that a failure to include in a notice under subregulation 2B(2) a statement of the kind mentioned in paragraph (2)(c) does not affect the validity of the decision.
Regulation 5 amends the Schedule to provide two additional fees to be taken in the Registry of the Court. The additional items are:
Item 8 - On filing an application, to review a decision of the Registrar, in accordance with section 35A(5) of the Act | $100 |
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Item 9 - On filing a notice of motion | $50 |
Regulation 6 is an application provision. It provides that the regulations only apply to proceedings issued after 1 April 1992.
Authorised by the Attorney-General