Commonwealth Numbered Regulations - Explanatory Statements

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FEDERAL COURT OF AUSTRALIA REGULATIONS (AMENDMENT) 1998 NO. 55

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.