Federal Court of Australia Regulations (Amendment) 1998 No. 55
EXPLANATORY STATEMENT
STATUTORY RULES 1998 NO. 55
ISSUED BY THE AUTHORITY OF THE ATTORNEY-GENERAL
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 fees to be payable in respect of proceedings in the Court.
Regulation 2 of the Federal Court of Australia Regulations provides that a fee is payable for an action of the Court, or an officer of the Court, as specified in the Schedule. Item 13 of the Schedule to the Regulations specifies a fee of $250 for the first attendance at a mediation by a court officer. Subregulation 2(1B) provides, inter alia, that if a corporation is liable to pay the fee, the amount of the fee payable is twice the amount of the fee specified.
Regulation 2AA provides for fees payable for the setting down of a proceeding for hearing, with a fee of $2,000 payable if the person is liable to pay the fee is a corporation and a fee of $1,000 in any other case.
The Law and Justice Legislation Amendment Act 1997 amended section 53A of the Act to remove the requirement that mediation be limited to cases in which the parties consent, and it is now possible for the Court to order parties to attend mediation without their consent. This raised some concerns about ordering mediation in cases where parties do not consent, where the effect of the mediation is to require the parties to pay a fee. Imposing a fee in such cases is, generally, against the general fee policy.
T he purpose of the Regulations is to provide a discount for the setting down fee if the mediation is not successful and the matter proceeds to a hearing.. The setting down fee will be discounted by the amount of the fee paid for mediation. The discount for the setting down fee will apply to all those who have paid the mediation fee, regardless of whether they attended the mediation with or without consent.
The amendment is consistent with the rationale of the general fee policy, that persons contribute to the cost of the services that they use.
Details of the Regulations are as follows:
Regulation 1 - Commencement
Regulation 1 provides that the Regulations commence on gazettal.
Regulation 2 - Amendment
Regulation 2 provides that the Regulations are amended as set out in these Regulations.
Regulation 3 - Regulation 2AA (Setting down fees)
Regulation 3 inserts new subregulation 2AA(1A). Subregulation 2AA(1A) provides that, if a fee for mediation has been paid, the setting down fee for the proceedings is reduced by the amount of the fee paid for mediation.
Overview
The Federal Court of Australia Regulations (Amendment) 1998 No. 55, issued under the authority of the Attorney-General, amends the Federal Court of Australia Regulations to address a policy issue arising from the Law and Justice Legislation Amendment Act 1997. This Act introduced the ability for the Court to order parties to attend mediation without their consent, which led to concerns about the imposition of fees in non-consensual mediations. The amendment seeks to align with the general fee policy, which advocates for users to contribute to the costs of the services they utilise. The Regulations provide a discount on the setting down fee if the mediation is unsuccessful and the matter proceeds to a hearing, effectively reducing the fee by the amount already paid for mediation. This adjustment ensures that all parties who have paid the mediation fee, whether they attended consensually or not, receive a discount on the setting down fee.
Scope and Application
The Federal Court of Australia Regulations (Amendment) 1998 No. 55 applies to the regulations governing fees payable in respect of proceedings in the Federal Court of Australia. It specifically targets the fees associated with mediation and the setting down of proceedings for hearing, particularly in cases involving corporations and other entities. The amendment, issued under the authority of the Attorney-General, is made pursuant to the Federal Court of Australia Act 1976. It applies nationally across Australia, given the federal jurisdiction of the Court. The amendment introduces a discount on the setting down fee if the mediation is unsuccessful and the matter proceeds to a hearing, aligning with the general fee policy that requires persons to contribute to the costs of the services they use. The amendment does not exclude any particular entities or industries but affects all those who are liable to pay the specified fees, including corporations which, in certain cases, face higher fees than individuals. Subordinate instruments may further extend or detail the application of these regulations.
Key Provisions
The Federal Court of Australia Regulations (Amendment) 1998 No. 55 introduces specific amendments to the existing regulatory framework, particularly concerning fees related to court proceedings and mediation. Regulation 2AA, as amended by Regulation 3, introduces a new subregulation 2AA(1A), which provides that if a fee for mediation has been paid, the setting down fee for the proceedings is reduced by the amount of the fee paid for mediation (Regulation 3). This means that any payment made towards mediation fees will be deducted from the fee required to set down a proceeding for hearing. This amendment applies universally, irrespective of whether the mediation was attended with or without consent (Regulation 2AA(1A)).
The obligations under these Regulations are primarily concerned with the payment and subsequent discounting of fees. For instance, parties liable to pay the setting down fee must ensure that any mediation fees already paid are accounted for in the total fees due (Regulation 2AA(1A)). This ensures that the fees reflect a true contribution to the services used, aligning with the general fee policy that individuals and corporations should contribute to the costs of services they utilise. Corporations, as per Subregulation 2(1B), are required to pay double the specified fee compared to individuals or other entities (Regulation 2(1B)).
Failure to comply with the fee provisions outlined in these Regulations may result in civil or administrative consequences. Although specific penalties are not detailed within the explanatory statement, breaches of fee regulations can generally lead to financial penalties, interest on unpaid fees, or other administrative actions as deemed appropriate by the Court. The purpose of these provisions is to ensure that all parties fairly contribute to the costs associated with court proceedings and mediation, in line with the general fee policy.