Commonwealth Numbered Regulations - Explanatory Statements

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FEDERAL COURT OF AUSTRALIA REGULATIONS 2004 2004 NO. 291

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, and in particular, prescribing the fees to be paid in respect of proceedings in the Court or the services and execution of the process of the Court by officers of the Court.

Pursuant to subsection 60(1) of the Act, the Governor-General made the Federal Court of Australia Regulations 1978 ('the 1978 Regulations'), prescribing certain fees in relation to Court proceedings and making provisions in relation to payment of those fees.

The Federal Court of Australia Regulations 2004 ('the 2004 Regulations') replace the 1978 Regulations with regulations that are easier to understand and use, as well as abolishing or changing the amount of some fees and making changes to provisions regarding payment of fees.

The 2004 Regulations also address concerns raised by the Court about the difficulty of administering the 1978 Regulations. Payment methods allowed under the Regulations have been updated to reflect the availability of electronic filing and changing commercial practices among court users.

The effect of the 2004 Regulations is to:

•       restructure the 1978 Regulations and simplify some of the language to make them easier to understand;

•       make the filing fee for notices of motion payable in relation to an interlocutory process within the meaning of the Federal Court (Corporations) Rules 2000 (regulation 3);

•       make provision in the Regulations for the fee that is currently payable under the Federal Court Rules 1979 for filing an election petition under the Aboriginal and Torres Strait Islander Commission Act 1989 (regulation 4 and Schedule 1, item 4);

•       abolish the hearing fee for notices of motion (currently $242 for a non-corporation and $483 for a corporation) and increase the filing fee for notices of motion (from $149 to $223 for a non-corporation and $298 to $446 for a corporation) to compensate for the abolition of the hearing fee (regulation 4 and Schedule l, items 10 and 15);

•       reduce the filing fee for an application for an order for substituted service of a bankruptcy notice (from $606 to $149 for a non-corporation and from $1453 to $298 for a corporation) (regulation 4 and Schedule 1, item 11);

•       abolish the poundage fee for the seizure and sale by the Court of vessels under the Admiralty Act 1988 in line with other jurisdictions such as New South Wales, and replace the poundage fee with a flat fee in other matters (regulation 4 and Schedule 1, item 18);

•       remove an anomaly in the fees for taxation of a bill of costs (regulation 4 and Schedule 1, item 21);

•       make the fee for taxation of a bill of costs payable by the party who objects to the estimate provided by the Court (regulation 5);

•       require a cross-claimant or cross-appellant to pay a setting-down fee or hearing fee where the fee is for a cross-claim or cross-appeal only (regulations 6 and 7);

•       make minor changes in relation to when certain fees must be paid (regulation 9);

•       allow deferral of payment and pre-payment of fees by approved users (regulations 10, 12 and 13);

•       make a number of changes to fee exemptions (regulation 11 and Schedule 3);

•       give the Court a power to allow documents to be filed or services provided where fees have not been paid (regulation 14);

•       allow the Registrar to refund a hearing fee where a hearing does not proceed, despite the required notice not being given to the Registrar, if the failure to provide the notice was not the fault of the person who paid the hearing fee (regulation 15); and

•       repeal the 1978 Regulations and all statutory rules that amended them (regulation 18).

The Act does not specify any conditions that need to be met before the power to make the Regulations may be exercised.

Details of the new Regulations are set out in the Attachment.

The Regulations except item 4 of Schedule 1 (the fee for filing an electoral petition in relation to Aboriginal and Torres Strait Islander elections) commence on 1 November 2004. Item 4 of Schedule 1 commences on the commencement of item 1 of Schedule 1 to the Law and Justice Legislation Amendment Act 2004 (the LJLA Act). Item 1 of Schedule 1 to the LJLA Act makes complementary amendments to the Aboriginal and Torres Strait Islander Commission Act 1989 and commences on a day to be fixed by Proclamation or, at the latest, 6 months after the LJLA Act receives the Royal Assent. The LJLA Act received the Royal Assent on 26 May 2004.

Statutory Rule Draft No:

ATTACHMENT

Details of the Federal Court of Australia Regulations 2004

Part 1: Preliminary

Regulation 1 - Name of Regulations

Regulation 1 provides for the Regulations to be named the Federal Court of Australia Regulations 2004.

Regulation 2 - Commencement

Regulation 2 provides that the Regulations commence on 1 November 2004, except item 4 of Schedule 1 which commences on the commencement of item 1 of Schedule 1 to the Law and Justice Legislation Amendment Act 2004 (the LJLA Act). The latter item commences on a day to be fixed by Proclamation or, at the latest, 6 months after the LJLA Act receives the Royal Assent. The LJLA Act received the Royal Assent on 26 May 2004.

Regulation 3 - Definitions

Regulation 3 provides definitions of terms used in the Regulations. Significant new or amended definitions are explained below.

'corporation'

Under Regulation 1A of the Federal Court of Australia Regulations 1978 (the 1978 Regulations) a corporation was defined to include a financial institution as defined in section 111AZA of the Corporations Law. The reference to the Corporations Law is now obsolete and in the new definition of 'corporation' it has been replaced by a reference to section 57A of the Corporations Act 2001. Furthermore, the specific reference to financial institutions has been removed as nearly all financial institutions are now required to be incorporated and financial institutions are not defined separately under the Corporations Act 2001.

'notice of motion'

In the 1978 Regulations there was no definition of notice of motion. This definition provides that 'notice of motion' means any application seeking interlocutory relief, including an interlocutory process within the meaning of the Federal Court (Corporations) Rules 2000. The express reference to an interlocutory process under the Federal Court (Corporations) Rules clarifies that the fee for filing a notice of motion is payable for such an interlocutory process.

Under this expanded definition all interlocutory processes are treated the same, as originally intended, regardless of how they are described now or in the future.

'Registrar'

Regulation 3 clarifies that, for the purposes of the Regulations, Registrar includes an acting Registrar.

Part 2       Court fees

Regulation 4 Imposition of Fees

Regulation 4 provides that the fees payable are set out in Schedule 1.

Regulation 5 - Fees other than setting-down fees and hearing fees - liability to pay

Regulation 5 specifies the persons liable to pay particular fees except setting-down and hearing fees. The regulation has the same operation as the 1978 Regulations (see subregulation 2(1A) of the 1978 Regulations) in this regard except in relation to taxation of a bill of costs.

The regulation provides that the fee for taxation of a bill of costs is payable by the party who files an objection to a Court estimate or files a notice requiring full taxation.

Since the decision of Justice Einfeld in Owston Nominees No 2 v Branir[1998] FCA 1798 the party who lodges a bill of costs for taxation has been required to pay the fee, even though that party may have no objection to the estimate or provisional taxation. Regulation 5 provides that the party who objects to an estimate or a provisional taxation is liable to pay the fee for taxation of a bill of costs.

Pursuant to Order 62, subrule 46(4A) of the Federal Court Rules 1979, a party who files a notice of objection or a notice requiring full taxation can still recover the fee paid under paragraphs 5(2)(c) and (d) of the Regulations if, on taxation, there is obtained in that party's favour a variation of at least 15% of the estimate for taxed costs or of the amount provisionally taxed. Furthermore, regulation 5(2) allows the Court to make an alternative order as to who pays the fee for taxation.

Regulation 6 - Setting-down fees - liability to pay

Regulation 6 specifies the persons liable to pay setting-down fees.

Liability to pay setting-down fees is the same as in regulation 2AA of the 1978 Regulations except for the following two changes:

•       Subregulation 6(1)(b) provides that cross-applicants or cross-appellants are liable to pay a setting-down fee where a hearing is only for the cross-application or cross-appeal. As in the 1978 Regulations, the Court, a Judge or a Registrar has a discretionary power to apportion the fees between all the parties to the proceeding.

•       Subregulation 6(3) provides for only one setting-down fee, apportioned equally between the applicants or appellants, to be paid for unconsolidated proceedings that are set down for hearing together. Charging one fee in this situation (as for consolidated proceedings) recognises that hearing the proceedings together saves time and costs for the Court.

Regulation 7 - Hearing fees - liability to pay

Regulation 7 provides who is liable to pay hearing fees. In this regulation liability to pay hearing fees is the same as in regulation 2A of the 1978 Regulations except for the following changes:

•       Subregulation 7(1)(b) provides that cross-applicants and cross-appellants are liable to pay hearing fees in the same circumstances as those set out in subregulation 6(1)(b) for setting-down fees.

•       Subregulation 7(2) provides that only one hearing fee is payable for unconsolidated proceedings set down to be heard together, as with the setting-down fee under subregulation 6(3).

Regulation 8 - Biennial adjustment of amount of fee

Regulation 8 provides for the automatic biennial adjustment of the amount of fees in line with Consumer Price Index increases according to the formula in Schedule 2. This regulation mirrors regulation 2AB of the 1978 Regulations.

Regulation 9 - When must fees be paid?

Regulation 9 sets the time limits within which fees must be paid. These are the same as in the 1978 Regulations except for the following changes:

•       Subregulation 9(l) provides that fees must be paid before a service is provided including the fee for taxation of a bill of costs of more than $10,000. Under subregulation 2(3) of the 1978 Regulations the fee for taxation of a bill of costs of $10,000 or less had to be paid before the service (taxation) was provided. For the taxation of a bill of costs of more than $10,000 this was not the case. This change corrects that anomaly.

•       Subregulation 9(2) provides that if the hearing date is earlier than 30 days after the day on which the proceeding is set down for hearing the Registrar specifies the period in which the setting-down fee must be paid. In any other case the setting-down fee must be paid within 30 days of fixing a date for the hearing. Under subregulation 2AA(1) of the 1978 Regulations a setting-down fee had to be paid as soon as a date was fixed for the hearing of a proceeding. Parties often found this requirement difficult and inconvenient. The Court also found it difficult and expensive to administer.

Regulation 10 - Deferral of fees

Regulation 10 enables the Registrar to defer the payment of fees in certain circumstances.

Under subregulation 2(5) of the 1978 Regulations the Court had the discretion to defer the payment of filing fees. This discretion was limited to the situation where filing was urgent and overrode the requirement to pay the fee. The deferred fee had to be paid within 30 days.

Regulation 10 enables the Registrar to postpone the payment of a wide range of fees. Payment of a filing fee may still be deferred in cases of urgency. Fees may also be deferred if, having regard to the financial circumstances of the person, it would be oppressive or otherwise unreasonable to require payment or the person liable to pay the fee is represented by a practitioner who is acting pro bono. In the case of setting-down fees, the payment of the fee may be deferred if the date of the hearing is more than 6 months after the day on which the proceeding is set down for hearing.

This regulation gives the Court greater flexibility to administer the payment of fees by having the capacity to tailor, where appropriate, the time of payment of fees required by the Regulations to the particular circumstances of certain litigants.

Regulation 11 - Exemption from liability to pay fees

Regulation 11 provides for exemption from liability to pay fees as detailed in Schedule 3 to the Regulations. The exemptions are the same as in the 1978 Regulations except that a limit has been placed on the number of copies of documents a person entitled to an exemption or waiver may obtain.

In the 1978 Regulations there was no limit to the number of free copies of documents that a person who is entitled to a fee exemption or who has had the fees waived under the Regulations could obtain from the Court. There were situations where such people sought numerous copies of documents held on the Court's file.

Subregulation 11(2) provides that a person who is entitled to a fee exemption or who has had the fees waived need not pay the request and copying fees for the first set of copies or for a copy required for the preparation of appeal papers. However, they must pay for any other copies.

Regulation 12 - Payment on invoice

Regulation 12 provides for payment on invoice. This was not available under the 1978 Regulations.

Regulation 12 means that an 'approved user' of court services does not have to pay a fee each time a document is filed by, or a service is rendered to, the user. Instead, the Court sends the user an invoice setting out all the fees incurred during the relevant period. The approved user must pay the fees within seven working days after receiving the invoice. The Registrar has the power to determine which Court users may be 'approved' to pay fees in this way, taking into account such matters as the user's financial history with the Court, whether the user provides a guarantee, whether the user is a regular user of Court services and the financial circumstances of the user. The Registrar also has the power to grant approval subject to conditions and to revoke an approval.

This regulation supports the Court's e-filing initiatives and aligns the fee payment system with changing commercial practices among court users.

Regulation 13 - Payment in advance

Regulation 13 provides for fees to be paid in advance. This was not available under the 1978 Regulations.

Regulation 13 allows the Registrar to permit a user of the Court's services to pay money into the Court on account of any filing or other fees which may be incurred. As the fees are incurred, the Court has authority to take that amount from the funds deposited by the user. When the funds become low or are exhausted the user either deposits further funds or pays fees on another basis. An authorisation to make advance payments may be made subject to any conditions specified by the Registrar.

This regulation supports the Courts e-filing initiatives and aligns the fee payment system with changing commercial practices among court users.

Regulation 14 - What happens if fees are unpaid

Regulation 14 provides for the Court to refuse to file a document or provide a service if fees are unpaid.

Under subregulations 2(3), 2AA(4) and 2A(4) of the 1978 Regulations if the relevant fees remained unpaid the documents could not be filed or the service provided. Sub regulation 14(2) enables the Court, a judge or the Registrar, to allow the filing of a document or provision of a service even if the fee is unpaid. This change allows the Court to deal with the situation where more than one party is liable to pay the fee (that is, it has been apportioned between the parties) and one of those parties does not pay. It also gives the Court greater discretion generally to allow proceedings to go ahead despite fees being unpaid. Under subregulation 14(4) unpaid fees are recoverable as a debt due to the Commonwealth.

Regulation 15 - Refund of a fee

Regulation 15 allows the Court to refund setting-down and hearing fees.

Under subregulation 2AD of the 1978 Regulations a person who had paid a setting-down or hearing fee was entitled to a refund of the fee if a complying notice was given to the Registrar (within specified time limitations) that the hearing of the notice of motion, application or appeal for which the fee was paid would not proceed. There have been situations where a party, through no fault of their own, is unable to give the Registrar a complying notice in the time required by the Regulations. Inability to have a fee refunded in such situations is inequitable and may have acted as a disincentive to a party trying to settle a point in dispute once the time limits had passed. Regulation 15 allows the Registrar to refund a hearing fee even though no notice is given, if the failure to provide a complying notice is not due to the fault of the person who paid the hearing fee.

Part 3       Miscellaneous

Regulation 16 - AAT Review of a decision

Regulation 16 allows an individual whose interests are affected by a decision of the Registrar to apply to the Administrative Appeals Tribunal for a review of the decision. The review rights apply to the same decisions as under the 1978 Regulations. In addition, decisions under regulations 10 and 15(2) are reviewable.

Regulation 17 - Prescribed contract limit (Act s 18A(4))

Paragraph 18A(4)(b) prevents the Chief Justice of the Court from entering into a contract under which the Commonwealth is to pay or receive an amount exceeding $250,000 or, if a higher amount is prescribed, that higher amount, except with the approval of the Attorney-General. Regulation 17 prescribes the higher amount of $1,000,000 for the purposes of paragraph 18A(4)(b) of the Act. This regulation is identical to regulation 4 in the 1978 Regulations.

Regulation 18 - Federal Court of Australia Regulations 1978 - repeal

Regulation 18 provides for the repeal of the 1978 Regulations.

Regulation 19 - Transitional

Regulation 19 provides that the 1978 Regulations continue to apply in relation to any fees incurred before the commencement of the 2004 Regulations.

Schedule 1 - Fees

Schedule 1 lists the fees payable for the filing of documents or provision of a service by the Court. The fees listed are the fees prescribed under the 1978 Regulations, as increased every two years in accordance with regulation 2AB of the 1978 Regulations. The fees prescribed do not differ from those in the 1978 Regulations except for the following items:

Item 3 - filing of an application under section 170CP of the Workplace Relations Act 1996

This item prescribes the fee for filing an application under section 170CP of the Workplace Relations Act 1996 (that is, an application in relation to an alleged contravention of certain termination of employment provisions in the Workplace Relations Act). The description of the fee for this item has been changed because subregulation 30BD(1), which sets the fee (in item 1A to the Schedule to the 1978 Regulations), ceased to have effect on 31 December 2003 (see subregulation 30BD(4) of the Workplace Regulations 1996). The new fee description reflect that the fee is now prescribed under subsections 170CEAA(2) and (3) of the Workplace Relations Act.

Item 4 - filing of an electoral petition in relation to Aboriginal and Torres Strait Islander elections

Item 4 provides that the fee of $25 which has been payable under Order 70 subrule 2(5) of the Federal Court Rules 1979 for filing an election petition under Schedule 4 to the Aboriginal and Torres Strait Islander Commission Act 1989 (the ATSIC Act) is payable under the Regulations as is the case for other Federal Court fees. Item 1 of Schedule 1 to the Law and Justice Legislation Amendment Act 2004 will amend subclause 28(1) of Schedule 4 to the ATSIC Act by removing the Federal Court's power to make rules regarding the fees to be paid by parties to disputes about electoral matters under the ATSIC Act. The Federal Court Rules will be amended separately to remove the fee.

See regulation 2 above in relation to the commencement of this item.

Item 10 - fee for the filing of a notice of motion

Item 10 increases the fee for filing a notice of motion by one half. The new filing fee takes into account the fees payable for similar services in State and Territory courts. The increase partly compensates for the abolition of the hearing fee for a notice of motion (see items 14 and 15 below).

Item 11 - filing of an application for an order for substituted service of a bankruptcy notice

Item 11 of Schedule 1 introduces a specific fee ($149 for a non-corporation and $298 for a corporation) for the filing of an application for an order for substituted service of a bankruptcy notice. A bankruptcy notice is issued by the official Receiver and must be served on the debtor. If service cannot be achieved in any of the ways specified in the Bankruptcy Regulations 1996, an application must be made to the Court for an order for substituted service. Under the 1978 Regulations, as there was no existing proceeding in the Court, the filing fee for such an application was the fee for filing an application commencing proceedings ($606 for a non-corporation and $1453 for a corporation). The new specific fee will be lower and will indirectly benefit creditors.

As bankruptcy matters are now generally heard by the Federal Magistrates Court, this change is not expected to have a significant practical impact.

Item 13 - Setting-down Fees

As part of a more simplified structure in the 2004 Regulations, the amounts for setting-down fees are prescribed by item 13 of Schedule 1. Under the 1978 Regulations the amounts for setting-down fees were prescribed under subregulation 2AA(1).

Items 14 & 15 - Hearing Fees

As part of a more simplified structure in the 2004 Regulations, the amounts for hearing fees are prescribed by items 14 and 15 of Schedule 1. Under the 1978 Regulations the amounts for hearing fees were prescribed under subregulation 2A(1).

Under the 2004 Regulations there is no longer a hearing fee for notices of motion. Under regulation 2A of the 1978 Regulations a hearing fee was payable for every half day of hearing for a notice of motion. This fee proved difficult for the Court to administer. A number of motions in a proceeding (often filed by different parties) can be listed for hearing on the same day. Other federal courts and most State Supreme Courts do not impose a fee for the hearing of a notice of motion. The filing fee under item 10 has been increased by one half to partially compensate for the abolition of the hearing fee.

Item 16 - copies of documents

Under item 5 of the Schedule in the 1978 Regulations fees were payable for copies of documents. It was not clear whether the fee applied to all documents on the Court's files. Item 16 clarifies that the fee is payable for all documents on the Court's file regardless of whether the documents were filed, lodged or produced by subpoena.

Item 18 - seizure and sale of goods by the Court

Under item 7 of the Schedule to the 1978 Regulations the poundage fee for seizure and sale of goods by the Court was calculated by an amount of $2.00 for each $100.00 value of the goods. Item 18 of Schedule 1 provides for a flat fee of $527.00 which more accurately reflects the cost of the service provided.

The fee has also been abolished in the Court's admiralty jurisdiction. This takes into account the fees payable in other courts in Australia and our region and the abolition of poundage in the admiralty jurisdictions in Victoria and NSW.

Item 21 - taxation of a bill of costs in which the amount claimed is more than $10,000

Under regulation 2(1B) of the 1978 Regulations a corporation had to pay double the amount paid by a non-corporation under item 12A of the Schedule to the 1978 Regulations for taxation of a bill of costs in excess of $10,000. However, the fee was not doubled for a bill of costs of less than or equal to $10,000 (item 12 of the 1978 Regulations and new item 20). Item 21 of Schedule 1 removes this anomaly by providing that the fee is not doubled for a corporation for bills of costs over $10,000.

Schedule 2 - Fees - formula for biennial increase

Schedule 2 sets out the formula for the automatic biennial increase in fees under Regulation 8. The formula is the same as the formula in the 1978 Regulations.

Schedule 3 - Exemption from Fees

Schedule 3 lists the circumstances in which a person is exempt from liability for the payment of fees. These exemptions are the same as under the 1978 Regulations except as follows:

Clause 1 - Exemptions applying generally

Paragraph 1(1)(b) - persons granted assistance by a Native Title Representative Body

Under paragraph 1(1)(b) of Schedule 3 to the 2004 Regulations a person granted assistance by a native title representative body (NTRB) recognised under Part 11 of the Native Title Act 1993 is exempt from the payment of fees for the proceeding for which the assistance is granted. A person is also exempt from the payment of fees if they are granted assistance by a person or body to whom money has been granted under section 203FE of that Act for the purpose of enabling the person or body to perform some or all of the functions of a representative body.

Until 1996 native title representative bodies recognised under Part 11 of the Native Title Act were gazetted as legal aid bodies for the purposes of the Regulations. From 1996 to the commencement of the 2004 Regulations both NTRBs and persons assisted by them were able to obtain fee exemptions by applying for them on the basis of financial hardship. In the majority of cases a person assisted by an NTRB was granted fee exemptions on the basis of financial hardship or because the assistance was treated as analogous to legal aid. The new exemption is therefore not expected to have a significant practical impact.

However, this exemption clarifies the application of the exemption to recipients of assistance from NTRBs and equivalent bodies and therefore is easier for the Court to administer. This exemption does not apply where the NTRB itself is liable to pay a fee, but an NTRB that is a party to proceedings can still apply for a fee exemption on the grounds of financial hardship.

Paragraph 1(1)(c) - fee exemption for concession card holders, children etc

This paragraph removes the reference to health benefit cards as they are no longer issued.

Paragraph 1(1)(d) - waiver of filing fees and fees generally for an individual by Registrar or other authorised court officer

Under subregulation 2(4)(c) of the 1978 Regulations the Registrar had the discretion to waive the payment of fees for the filing of documents or the provision of a service on the grounds of financial hardship. Paragraph 1(1)(d) of Schedule 3 also allows the discretion to be exercised by an authorised officer.

Paragraph 1(1)(e) - waiver of filing fees and fees generally for a corporation by Registrar or other authorised court officer

Paragraph 1(1)(e) has been amended in similar terms to paragraph 1(1)(d) of Schedule 3.

Paragraph 1(2)(e) - fees to set aside a subpoena

In the 1978 Regulations a person served with a subpoena in a proceeding to which the person was not a party would pay a filing and hearing fee (in accordance with sub regulations 2(1), 2(1B) and paragraph 2A(1)(a) and the Schedule) when a notice of motion was filed in relation to setting aside the subpoena. It is not appropriate for such fees to be paid by non-parties as they have not chosen to be part of the proceedings. The imposition of fees in this situation is analogous to making a respondent pay for filing a defence and may dissuade some people from making a legitimate claim to have a subpoena set aside because of the cost of doing so.

Paragraph (e) of subclause (1)(2) of Schedule 3 provides that a person does not have to pay fees for setting aside a subpoena in this situation.

Subclause 1(5) - dependents of concession card holders

Subclause 1(5) provides that for the purpose of the concession card holder exemptions, a 'holder' of a card does not include a dependent of the holder of the card. Most dependents are children who are covered by the exemption for minors and others would be able to use the financial hardship exemption. This change is, therefore, not expected to have any significant impact.

Clause 2 - Exemptions applying to filing fees

Paragraph 2(c) - a matter referred by the High Court under the Commonwealth Electoral Act

Paragraph 2(c) provides a new exemption for a matter referred to the Court by the High Court under subsection 354(1) of the Commonwealth Electoral Act 1918. Such referrals are analogous to remittals under section 44 of the Judiciary Act 1903 which would continue to be exempt from filing fees under paragraph 2(b) of Schedule 3. It is therefore appropriate for the same exemption to apply to referrals by the High Court under the Commonwealth Electoral Act.

Paragraph 2(e) - a question of law referred to the Court by a tribunal

Under subregulation 2(2)(e) of the 1978 Regulations there was an exemption from the payment of filing fees where the Administrative Appeals Tribunal referred a question of law to the Federal Court. Paragraph 2(e) of Schedule 3 extends this fee exemption to include any tribunal or body that under the law of the Commonwealth may refer questions of law to the Court.

Clause 3 - Exemptions applying to setting-down fees

Paragraph 3(e) - setting-down fees for cases remitted from the High Court to the Federal Court

Under subregulation 2AA(2)(d) of the 1978 Regulations setting down fees were not payable when a matter was remitted from the High Court to the Federal Court pursuant to section 44 of the Judiciary Act 1903. This exemption prevented double payment of fees in the High Court and the Federal Court. However, many of the cases remitted from the High Court to the Federal Court are remitted on the papers with the consent of the parties so no setting-down fee has been paid in the High Court. Schedule 3 paragraph 3(e) provides that a setting-down fee is payable unless the matter is one which the High Court has heard on appeal from the Federal Court and remitted back to the Federal Court for re-hearing.

This applies to matters filed in the High Court after the commencement of the 2004 Regulations.

Clause 4 - Exemptions applying to hearing fees

Paragraph 4(a) - when a hearing is cancelled before the hearing fee is paid

In the 1978 Regulations it was unclear whether liability for a hearing fee that had not been paid was extinguished if the hearing was cancelled in accordance with regulation 2AD (which dealt with refund of hearing fees where a hearing did not proceed). Paragraph 4(a) of Schedule 3 provides that a hearing fee is not payable if the hearing is cancelled before the fee is paid.

Paragraph 4(f) - hearing fees for cases remitted from the High Court to the Federal Court

The change to the hearing fee exemptions for cases remitted from the High Court is the same as paragraph 3(e) of Schedule 3 in relation to setting-down fees.