EXPLANATORY STATEMENT

 

Select Legislative Instrument 2006 No. 64

 

Subject -               Federal Court of Australia Act 1976

 

                             Federal Court of Australia Amendment Regulations 2006 (No. 1)

 

The Federal Court of Australia Act 1976 (the Act) establishes the Federal Court of Australia (the Court) as a superior court of record and a court of law and equity.

 

Subsection 60(1) of the Act provides that the Governor‑General may make regulations prescribing matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act.  In particular, the subsection provides that regulations may be made prescribing the fees to be paid in respect of proceedings in the Court or the service or execution of process of the Court by officers of the Court.

 

The Federal Court of Australia Regulations 2004 (the Principal Regulations) prescribe certain fees in relation to court proceedings and make provisions in relation to the payment of those fees.

 

The purpose of these Regulations is to amend the Principal Regulations to:

*                     allow the Court to invoice legal practitioners for court fees;

*                     allow 30 days for the payment of invoiced fees; and

*                     give the Registrar of the Court a discretion to refund setting-down fees.  This would apply where a failure to provide a complying notice is no fault of the person who has paid the setting-down fee.

 

The Court proposed the amendments in these Regulations after consultation with court users.  The Court was consulted and had ample opportunity to comment on the Regulations during their development.  As these Regulations are of a minor and machinery nature this level of consultation is appropriate and sufficient.

 

Details of these Regulations are set out in the Attachment.

 

The Act specifies no conditions that need to be satisfied before the power to make these Regulations may be exercised.

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The Regulations will commence on 1 May 2006.

 

 

 

                                                                  Authority:       Subsection 60(1) of the Federal Court of Australia Act 1976

ATTACHMENT

 

Details of the Federal Court of Australia Amendment Regulations 2006 (No. 1)

 

Regulation 1 -- Name of Regulations

 

This regulation provides that the title of the Regulations is the Federal Court of Australia Amendment Regulations 2006 (No. 1).

 

Regulation 2 -- Commencement

 

This regulation provides that the Regulations commence on 1 May 2006.  This allows the Court to give sufficient notice of the changes to judges and registries of the Court and the legal profession.

 

Regulation 3 -- Amendment of Federal Court of Australia Regulations 2004

 

This regulation provides for the amendment of the Federal Court of Australia Regulations 2004 (the Principal Regulations) as set out in Schedule 1.

 

Schedule 1 -- Amendments

 

Item [1] -- subregulations 12(1) and (2)

 

Subregulation 12(1) and (2) of the Principal Regulations allow the Court to invoice approved users of court services for unpaid court fees.  This does not generally apply to legal practitioners.  This item allows the Court to also invoice legal practitioners who are approved users for the unpaid court fees of their clients.  These changes will assist the Court in administering its invoicing arrangements and encourage the adoption by legal firms of the invoicing system.  Expanding invoicing to legal practitioners should increase the efficiency of the Court's fee payments system.

 

Item [2] -- subregulation 12(3)

 

Subregulation 12(3) of the Principal Regulations currently allows an approved user seven working days to pay invoiced fees.  This item would allow an approved user 30 days to pay the invoiced fees.  Users of the Court's invoicing system advised that seven working days provided insufficient time to process an invoice for unpaid fees.  Thirty days would provide a reasonable amount of time to process invoices for unpaid fees.  A period of 30 days is also consistent with other payment periods in the Principal Regulations.

 

Item [3] -- subregulation 12(4)

 

The proposed change in this item would make subregulation 12(4) consistent with changes made by item 1.

 

Item [4] -- subregulation 12(8)

 

After the changes made to subregulation 12(3) in item 2, the definition of working day in subregulation 12(8) is obsolete.  This item removes this obsolete subregulation.

 

Item [5] -- subregulation 15(2)

 

Subregulation 15(1) of the Principal Regulations sets out the circumstances in which a person who has paid a setting-down or hearing fee is entitled to a refund.  These circumstances include if a person provides the Registrar of the Court with a complying notice.  A complying notice is a notice given within the required time periods to the Registrar of the Court stating that the hearing will not proceed.

 

Subregulation 15(2) of the Principal Regulations gives the Registrar of the Court discretion to refund hearing fees where the failure to provide a complying notice was no fault of the person who paid the hearing fee.  This item extends this discretion to setting-down fees.  This makes subregulation 15(2) consistent with subregulation 15(1) and removes a disincentive to parties settling their disputes.

 

Item [6] -- paragraph 15(2)(b)

 

The changes in this item are consequential to the changes to subregulation 15(2) in item 5.