Federal Court and Federal Magistrates Court Regulation 20121

Select Legislative Instrument 2012 No. 280

I, QUENTIN BRYCE, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following regulation under the Federal Court of Australia Act 1976 and the Federal Magistrates Act 1999.

Dated 6 December 2012

QUENTIN BRYCE

Governor-General

By Her Excellency’s Command

NICOLA ROXON

Attorney-General

Contents

Part 1 Preliminary

 1.01 Name of regulation

 1.02 Commencement

 1.03 Definitions

 1.04 Meaning of corporation

 1.05 Application—Parts 1 and 2

Part 2 Fees

Division 2.1 Fees—general

 2.01 Purpose of Part

 2.02 Fees

Division 2.2 Liability to pay fee

 2.03 Persons liable to pay fee

 2.04 Fee for producing file and copying document

Division 2.3 Exemptions from liability to pay fee

 2.05 Persons exempt from paying fee—general

 2.06 Persons exempt from paying fee—financial hardship

Division 2.4 When fee is not payable

 2.07 Fee not payable by liable person if already paid

 2.08 Fee not payable in Federal Court proceeding

 2.09 Fee not payable in Federal Magistrates Court proceeding

 2.10 When only filing fee is payable

 2.11 When filing fee is not payable

 2.12 When setting down fee is not payable

 2.13 When hearing fee is not payable

Division 2.5 Payment of fees

 2.14 When fee must be paid

 2.15 Deferral of payment of fees

 2.16 Payment of fee on invoice

 2.17 Payment of fee in advance

 2.18 What happens if fee is not paid

Division 2.6 Miscellaneous

 2.19 Refund of fees

 2.20 Biennial increase in fees

 2.21 Notice of decision and AAT review

 2.22 Debt due to Commonwealth

Part 3 Remuneration and allowances for jurors and potential jurors—Federal Court

 3.01 Purpose of Part

 3.02 Remuneration

 3.03 Allowances

 3.04 Biennial increase in juror’s remuneration

Part 4 Miscellaneous

 4.01 Prescribed contract limit—Federal Court

 4.02 Modification of Legislative Instruments Act 2003—Federal Magistrates Court

Part 5 Repeal and transitional

 5.01 Federal Court of Australia Regulations 2004

 5.02 Federal Magistrates Regulations 2000

Schedule 1 Fees

Part 1 Fees for proceedings in Federal Court

Part 2 Fees for proceedings in Federal Magistrates Court

Schedule 2 Remuneration and allowances

Part 1 Preliminary

1.01 Name of regulation

  This regulation is the Federal Court and Federal Magistrates Court Regulation 2012.

1.02 Commencement

  This regulation commences on 1 January 2013.

1.03 Definitions

  In this regulation:

applicant, in relation to a proceeding, means the person who commences the proceeding.

authorised officer, in relation to a power or function, means:

 (a) in relation to the Federal Court—an officer of that court who is authorised by the Registrar of that court to exercise the power or carry out the function; and

 (b) in relation to the Federal Magistrates Court—the following:

 (i) an officer of that court authorised by the Chief Executive Officer of that court to exercise the power or carry out the function;

 (ii) an officer of another court performing the function under an arrangement under section 90 of the Federal Magistrates Act;

 (iii) an employee of an agency or organisation performing the function under an arrangement under section 91 of that Act.

corporation: see section 1.04.

Federal Court means the Federal Court of Australia.

Federal Court Act means the Federal Court of Australia Act 1976.

Federal Court Rules means the rules made under section 59 of the Federal Court Act.

Federal Magistrates Act means the Federal Magistrates Act 1999.

Federal Magistrates Court means the Federal Magistrates Court of Australia.

Federal Magistrates Court Rules means the rules made under section 81 of the Federal Magistrates Act.

filing fee means a fee mentioned in any of items 101 to 115B and 201 to 214 of Schedule 1.

general federal law proceeding means the following:

 (a) a proceeding in the Federal Court;

 (b) a proceeding in the Federal Magistrates Court that is not a proceeding under the Family Law Act 1975.

hearing fee means a fee mentioned in any of items 117 to 122 and 216 to 218 of Schedule 1.             

interlocutory application means an application, other than a cross-claim, in a proceeding that has already commenced.

liable person, in relation to a fee, means the person who is required to pay the fee under section 2.03.

mediation fee means a fee mentioned in item 132 or 224 of Schedule 1.

publicly listed company means a company that is listed on a stock exchange or financial market in any country.

Registrar:

 (a) of the Federal Court—means:

 (i) the Registrar appointed under section 18C of the Federal Court Act; and

 (ii) an acting Registrar appointed under section 18M of that Act; and

 (iii) a Deputy Registrar, a District Registrar or a Deputy District Registrar appointed under section 18N of that Act; and

 (b) of the Federal Magistrates Court—has the same meaning as in the Federal Magistrates Act.

relevant court, in relation to a proceeding, means:

 (a) if the proceeding is in the Federal Court—that court; and

 (b) if the proceeding is in the Federal Magistrates Court—that court.

setting down fee means a fee mentioned in item 116 or 215 of Schedule 1.

small claims proceeding means a proceeding for which the applicant wants the small claims procedure in section 548 of the Fair Work Act 2009, or section 199 of the National Consumer Credit Protection Act 2009, to apply.

1.04 Meaning of corporation

 (1) In this regulation, corporation includes the following:

 (a) a company;

 (b) a body corporate;

 (c) an unincorporated body that, under the law of the place where the body is formed, may:

 (i) sue or be sued; or

 (ii) hold property in the name of the secretary of the body or an office holder of the body appointed for that purpose;

 (d) a public authority;

 (e) a corporation registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006;

 (f) a trade union.

 (2) However, corporation does not include the following:

 (a) a corporation sole that is not a public authority;

 (b) a small business;

 (c) an unincorporated not-for-profit association. 

 (3) A corporation is not required to be subject to the Corporations Act 2001 to be a corporation for this regulation.

 (4) In this section:

not-for-profit association means a society, club, institution or body that is not formed for the purpose of trading or securing pecuniary profit from its transactions for its members.

public authority means the following:

 (a) a body or authority of the Commonwealth or of a State or Territory, including the following:

 (i) a Department of the Commonwealth or of a State or Territory;

 (ii) a Department of the Parliament established under the Parliamentary Service Act 1999, a Department of the Parliament of a State or a Department of the legislature of a Territory;

 (iii) a prescribed Agency under the Financial Management and Accountability Act 1997;

 (b) a person representing a body or authority of the Commonwealth or of a State or Territory;

 (c) a Minister for the Commonwealth or for a State or Territory;

 (d) a statutory office holder.

small business means a business with:

 (a) no more than 19 employees; and

 (b) a total turnover of less than $2 million each year.

1.05 Application—Parts 1 and 2

 (1) Parts 1 and 2 apply to a fee for a service that is requested, or for the filing of a document that is lodged, on or after 1 January 2013 in relation to a general federal law proceeding.

 (2) However, if a service was requested before 1 January 2013:

 (a) payment of the fee for the service may be deferred under section 2.15 (regardless of whether the fee was also deferred before 1 January 2013); and

 (b) subsection 2.19 (9) applies to any hearing days that were fixed for 1 January 2013 or after; and

 (c) subsection 2.19 (10) applies to any mediation that was scheduled for 1 January 2013 or after.

Note 1   This regulation does not apply on or after 1 January 2013 in relation to a proceeding under the Family Law Act 1975 in the Federal Magistrates Court. See the Family Law (Fees) Regulation 2012 for information about fees in relation to those proceedings.

Note 2   See also Part 5 in relation to services requested before 1 January 2013.

Part 2 Fees

Division 2.1 Fees—general

2.01 Purpose of Part

  For section 60 of the Federal Court Act, and section 120 of the Federal Magistrates Act, this Part sets out matters relating to fees.

2.02 Fees

 (1) Schedule 1 sets out the fees payable for the following:

 (a) the filing of a document;

 (b) a service provided in relation to a proceeding by:

 (i) the relevant court; or

 (ii) an officer of the relevant court; or

 (iii) another person acting on behalf of the relevant court.

Note 1   Fees are subject to increase under section 2.20.

Note 2   Fees are not payable in some circumstances: see Division 2.4.

 (2) If the person liable to pay a fee mentioned in an item in Schedule 1 is a corporation, the fee payable is:

 (a) if the corporation is a publicly listed company—the fee mentioned in the item for a publicly listed company; and

 (b) if the corporation is not a publicly listed company—the fee mentioned in the item for a corporation; and

 (c) if no fee is mentioned in the item specifically for a corporation or a publicly listed company—the fee mentioned in the item.

 (3) However, if:

 (a) under section 2.03, a particular fee mentioned in an item in Schedule 1 is payable by more than one person; and

 (b) the item mentions different fees for a publicly listed company, another corporation and another person (the different persons); and

 (c) at least 2 of the persons mentioned in paragraph (a) are different persons;

the only fee that is payable in relation to that particular fee is the highest fee that applies to any of those persons.

Division 2.2 Liability to pay fee

2.03 Persons liable to pay fee

 (1) A fee in relation to a proceeding is payable as set out in this section, unless the relevant court for a proceeding, or a Judge, Federal Magistrate or Registrar of that court, directs otherwise.

Filing fee

 (2) A filing fee is payable by the person for whom the document is filed.

Hearing fee and setting down fee

 (3) A hearing fee or a setting down fee is payable by:

 (a) if the hearing is for a cross-claim or cross-appeal only—the cross-claimant or cross-appellant; or

 (b) if the hearing is for an interlocutory application—the person who made the interlocutory application; or

 (c) in any other case—the applicant (other than a cross‑applicant) or appellant (other than a cross-appellant).

 (4) If 2 or more proceedings are set down for hearing together and the hearings are not consolidated:

 (a) only one setting down fee and one hearing fee is payable for all the proceedings; and

 (b) the amount of each of the setting down fee and the hearing fee is apportioned equally between the liable persons for the fee.

Mediation fee

 (5) A mediation fee is payable by the applicant in the proceeding to which the mediation relates.

Fee for taxation of bill of costs—Federal Court

 (6) If:

 (a) a fee mentioned in any of items 128 to 131 of Schedule 1 (taxation of a bill of costs in relation to proceedings in the Federal Court) is payable for a bill of costs in relation to a proceeding; and

 (b) the bill of costs is subject to an estimate, or has been provisionally taxed, under the Federal Court Rules; and

 (c) a party to the proceeding objects to the estimate, or requires a full taxation of the bill of costs, in accordance with those Rules;

the fee is payable by the party mentioned in paragraph (c).

 (7) If more than one party objects to the estimate, or requires a full taxation of the bill of costs, the fee is apportioned between those parties as determined by the Registrar of the Federal Court.

Fee for other service

 (8) A fee for a service:

 (a) mentioned in an item in Schedule 1; and

 (b) not otherwise mentioned in this section;

is payable by the person for whom the service is provided.

2.04 Fee for producing file and copying document

 (1) Despite Divisions 2.3 and 2.4, the fee mentioned in item 123 or 219 of Schedule 1 (the photocopying fee) is payable in all proceedings.

 (2) However, the photocopying fee in relation to a proceeding is not payable if:

 (a) either:

 (i) apart from subsection (1), the liable person would be exempt from paying the fee under section 2.05; or

 (ii) the liable person was exempt under section 2.06 from paying the most recent fee payable in relation to the proceeding; and

 (b) the copy of the document requested:

 (i) is the first copy of that document that the person has requested; or

 (ii) is required for the preparation of appeal papers.

Division 2.3 Exemptions from liability to pay fee

2.05 Persons exempt from paying fee—general

 (1) A person is exempt from paying a fee mentioned in Schedule 1 if, at the time the fee is payable, one or more of the following apply:

 (a) the person has been granted legal aid under a legal aid scheme or service:

 (i) established under a law of the Commonwealth or of a State or Territory; or

 (ii) approved by the Attorney-General;

 for the proceeding for which the fee would otherwise be               payable;

 (b) the person is the holder of any of the following cards issued by the Commonwealth:

 (i) a health care card;

 (ii) a pensioner concession card;

 (iii) a Commonwealth seniors health card;

 (iv) any other card that certifies the holder’s entitlement to Commonwealth health concessions;

 (c) the person is serving a sentence of imprisonment or is otherwise detained in a public institution;

 (d) the person is younger than 18;

 (e) the person is receiving youth allowance or Austudy payments under the Social Security Act 1991 or benefits under the ABSTUDY Scheme;

 (f) the person has been granted assistance under Part 11 of the Native Title Act 1993 by:

 (i) a representative body within the meaning given by section 253 of that Act; or

 (ii) a person or body to whom funding has been granted under section 203FE of that Act;

 for the proceeding for which the fee would otherwise be               payable.

 (2) For paragraph (1) (b), the holder of a card does not include a dependant of the person who is issued the card.

2.06 Persons exempt from paying fee—financial hardship

 (1) If:

 (a) a fee mentioned in Schedule 1 is payable by an individual in relation to a proceeding; and

 (b) in the opinion of the Registrar or authorised officer of the relevant court at the time the fee is payable, the payment of the fee would cause financial hardship to the individual;

the Registrar or authorised officer may exempt the individual from paying the fee.

 (2) In considering whether payment of a fee would cause financial hardship to an individual, the Registrar or authorised officer must consider the individual’s income, day-to-day living expenses, liabilities and assets.

Note   A decision of the Registrar or authorised officer under this section is reviewable by the AAT: see section 2.21.

Division 2.4 When fee is not payable

2.07 Fee not payable by liable person if already paid

  A fee mentioned in Schedule 1 is not payable by the liable person if another person has paid the fee.

2.08 Fee not payable in Federal Court proceeding

 (1) This section applies to proceedings in the Federal Court. 

 (2) A fee mentioned in Schedule 1 is not payable in relation to the following proceedings:

 (a) an appeal from a judgement in relation to an application under section 46PO or 46PP of the Australian Human Rights Commission Act 1986;

 (b) an appeal from a judgement in relation to an application made by a person under section 539 of the Fair Work Act 2009 in either of the following circumstances:

 (i) the person has been dismissed from employment in alleged contravention of Part 3-1 of that Act;

 (ii) the person alleges a breach of section 351 of that Act;

 (c) an appeal from a judgement in relation to an application made by a person under section 539 of the Fair Work Act 2009 if the person has been dismissed from employment in alleged contravention of section 772 of that Act;

 (d) the trying of an election petition under the Aboriginal and Torres Strait Islander Act 2005;

 (e) an application by a person to set aside a subpoena;

 (f) a proceeding under the Child Support (Registration and Collection) Act 1988;

 (g) a proceeding for which an international convention to which Australia is party provides that no fee is to be payable.

Taxation proceedings

 (3) A fee mentioned in Schedule 1 is not payable in relation to any of the following kinds of proceedings in the circumstances set out in subsection (4):

 (a) an appeal under section 14ZZ of the Taxation Administration Act 1953;

 (b) an appeal from a decision of the Taxation Appeals Division of the Administrative Appeals Tribunal;

 (c) an appeal from a single judge to the Full Court in relation to an appeal under section 14ZZ of the Taxation Administration Act 1953.

 (4) The circumstances are that a Registrar or authorised officer of the Federal Court is satisfied that:

 (a) the person lodging the appeal has lodged with the court another appeal for which the fee mentioned in Schedule 1 has been paid; and

 (b) both appeals are the same kind of proceeding under subsection (3); and

 (c) the appeal concerns an issue (other than a procedural issue) that is substantially the same as an issue of concern in the other appeal.

Note   A decision of the Registrar or authorised officer under subsection (4) is reviewable by the AAT: see section 2.21.

2.09 Fee not payable in Federal Magistrates Court proceeding

 (1) This section applies to proceedings in the Federal Magistrates Court.             

 (2) A fee mentioned in Schedule 1 is not payable in relation to the following proceedings:

 (a) an application for an extension of the time within which a proceeding may be commenced;

 (b) a proceeding for which an international convention to which Australia is a party provides that no fee is to be payable;

 (c) an application by a person to set aside a subpoena;

 (d) a proceeding under the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988.

 (3) A fee mentioned in Schedule 1 is not payable in relation to an objection to a subpoenaed document being inspected or copied.

2.10 When only filing fee is payable

 (1) A fee mentioned in Schedule 1 (other than the fee mentioned in item 102 or 202 of Schedule 1) is not payable in relation to an application under section 46PO or 46PP of the Australian Human Rights Commission Act 1986.

 (2) A fee mentioned in Schedule 1 (other than the fee mentioned in item 103 or 209 of Schedule 1) is not payable in relation to an application under section 539 of the Fair Work Act 2009 in either of the following circumstances:

 (a) the applicant has been dismissed from employment in alleged contravention of Part 3-1 of that Act;

 (b) the applicant alleges a breach of section 351 of that Act.

 (3) A fee mentioned in Schedule 1 (other than the fee mentioned in item 104 or 210 of Schedule 1) is not payable in relation to an application under section 539 of the Fair Work Act 2009 if the applicant has been dismissed from employment in alleged contravention of section 772 of that Act.

 (4) A fee mentioned in Schedule 1 (other than the fee mentioned in any of items 211 to 214) is not payable in relation to a small claims proceeding in the Federal Magistrates Court.

2.11 When filing fee is not payable

Federal Court

 (1) A filing fee is not payable in relation to the following proceedings in the Federal Court:

 (a) a proceeding in relation to a matter remitted to the Federal Court by the High Court under section 44 of the Judiciary Act 1903;

 (b) a proceeding in relation to a matter referred to the Federal Court by the High Court under subsection 354 (1) of the Commonwealth Electoral Act 1918;

 (c) a proceeding in relation to a criminal matter;

 (d) a proceeding in relation to a case stated, or a question reserved, for the consideration or opinion of the Federal Court;

 (e) a proceeding in relation to a referral to the Federal Court of a question of law by a tribunal or body that, under a law of the Commonwealth, may refer questions of law to the Federal Court;

 (f) an application to the Federal Court for an extension of time within which a particular proceeding may be commenced.

Federal Magistrates Court

 (2) A filing fee is not payable in relation to a proceeding in the Federal Magistrates Court if:

 (a) the proceeding is in relation to a matter that:

 (i) was remitted by the High Court to the Federal Court under section 44 of the Judiciary Act 1903; and

 (ii) was subsequently transferred by the Federal Court to the Federal Magistrates Court under section 32AB of the Federal Court Act; or

 (b) the proceeding is in relation to a matter remitted by the High Court to the Federal Magistrates Court under section 44 of the Judiciary Act 1903.

Note   Other fees may be payable in relation to a proceeding mentioned in this section.

2.12 When setting down fee is not payable

Federal Court

 (1) A setting down fee is not payable in relation to a proceeding in the Federal Court if:

 (a) the proceeding is only an interlocutory application; or

 (b) in relation to an application or appeal:

 (i) a setting down fee has already been paid for the application or appeal; or

 (ii) a fee for setting down under another law of the Commonwealth has already been paid for the application or appeal;

 and the fee has not been refunded; or

 (c) the proceeding is an application for admission to practice as a barrister, solicitor, or barrister and solicitor; or

 (d) the proceeding is in relation to a matter that was remitted to the Federal Court by the High Court under section 44 of the Judiciary Act 1903, and:

 (i) it was commenced in the High Court before 1 November 2004; or

 (ii) it was remitted by the High Court in its appellate jurisdiction for re‑hearing by the Federal Court; or

 (e) the proceeding is an exercise by the Federal Court of its original jurisdiction under the Bankruptcy Act 1966; or

 (f) the proceeding is in relation to a criminal matter; or

 (g) the proceeding is in relation to a case stated, or a question reserved, for the consideration or opinion of the Federal Court; or

 (h) the proceeding is in relation to a referral to the Federal Court of a question of law by a tribunal or body that, under a law of the Commonwealth, may refer questions of law to the Federal Court; or

 (i) the proceeding is an application to the Federal Court for an extension of time within which a particular proceeding may be commenced.

Federal Magistrates Court

 (2) A setting down fee is not payable in relation to a proceeding in the Federal Magistrates Court if:

 (a) the proceeding is in relation to a matter that:

 (i) was remitted by the High Court, in the exercise of its appellate jurisdiction, for re‑hearing by the Federal Court under section 44 of the Judiciary Act 1903; and

 (ii) was subsequently transferred by the Federal Court to the Federal Magistrates Court under section 32AB of the Federal Court Act; or

 (b) the proceeding is in relation to a matter remitted by the High Court, in the exercise of its appellate jurisdiction, for re‑hearing by the Federal Magistrates Court under section 44 of the Judiciary Act 1903.

Note   Other fees may be payable in relation to a proceeding mentioned in this section.

2.13 When hearing fee is not payable

Federal Court

 (1) A hearing fee is not payable in relation to a proceeding in the Federal Court if:

 (a) the hearing is cancelled before the fee is paid; or

 (b) the sole purpose of the hearing is the delivery of a reserved judgement; or

 (c) in relation to an application or appeal:

 (i) a hearing fee has already been paid for the application or appeal; or

 (ii) a fee for the hearing under another law of the Commonwealth has already been paid for the application or appeal;

 and the fee has not been refunded; or

 (d) the proceeding is an application for admission to practice as a barrister, solicitor or barrister and solicitor; or

 (e) the proceeding is in relation to a matter that was remitted to the Federal Court by the High Court under section 44 of the Judiciary Act 1903, and:

 (i) it was commenced in the High Court before 1 November 2004; or

 (ii) it was remitted by the High Court in its appellate jurisdiction for re‑hearing by the Federal Court; or

 (f) the proceeding is an exercise by the Federal Court of its original jurisdiction under the Bankruptcy Act 1966; or

 (g) the proceeding is in relation to a criminal matter; or

 (h) the proceeding is in relation to a case stated, or a question reserved, for the consideration or opinion of the Federal Court; or

 (i) the proceeding is in relation to a referral to the Federal Court of a question of law by a tribunal or body that, under a law of the Commonwealth, may refer questions of law to the Federal Court; or

 (j) the proceeding is an application to the Federal Court for an extension of time within which a particular proceeding may be commenced.

Federal Magistrates Court

 (2) A hearing fee is not payable in relation to a proceeding in the Federal Magistrates Court if:

 (a) the proceeding is in relation to a matter that:

 (i) was remitted by the High Court, in the exercise of its appellate jurisdiction, for re‑hearing by the Federal Court under section 44 of the Judiciary Act 1903; and

 (ii) was subsequently transferred by the Federal Court to the Federal Magistrates Court under section 32AB of the Federal Court Act; or

 (b) the proceeding is in relation to a matter remitted by the High Court, in the exercise of its appellate jurisdiction, for re‑hearing by the Federal Magistrates Court under section 44 of the Judiciary Act 1903.

Note   Other fees may be payable in relation to a proceeding mentioned in this section.

Division 2.5 Payment of fees

2.14 When fee must be paid

Filing fee 

 (1) A filing fee for a document must be paid before the document is filed.

Setting down fee

 (2) A setting down fee for a hearing in relation to a proceeding must be paid as follows:

 (a) if the hearing day is within 28 days after the day when the hearing day is fixed—within the period, or at the time, approved by the Registrar or authorised officer of the relevant court for the payment of that fee;

 (b) in any other case—no later than 28 days before the hearing day.

Hearing fee

 (3) A hearing fee for a hearing in relation to a proceeding must be paid as follows:

 (a) if the hearing day is more than 2 business days after the day when the hearing day is fixed—no later than close of business for the relevant court on the day that is 2 business days before the hearing day;

 (b) in any other case—no later than 9.30 am on the hearing day.

Fee for service or execution of process, or seizure and sale of goods

 (4) A fee mentioned in any of items 124, 125, 220 and 221 of Schedule 1 must be paid in relation to a proceeding within the period, or at the time, approved by the Registrar or an authorised officer of the relevant court for the payment of that fee.

Fee for other service

 (5) A fee for a service:

 (a) mentioned in an item in Schedule 1; and

 (b) not otherwise mentioned in this section;

must be paid before the service is provided.

2.15 Deferral of payment of fees

 (1) Section 2.14 does not apply to a fee payable in relation to a proceeding if the Registrar or an authorised officer of the relevant court defers the payment of the fee.

 (2) The Registrar or authorised officer may defer the payment of a fee under subsection (1) if the fee is not a fee mentioned in any of items 123 to 125 and 219 to 221 of Schedule 1 and:

 (a) in the opinion of the Registrar or authorised officer:

 (i) for a filing fee for a document—the need to file the document is so urgent that it overrides the requirement to pay the filing fee before the document is filed; or

 (ii) considering the financial circumstances of the person liable to pay the fee, it would be oppressive or otherwise unreasonable to require payment of the fee in accordance with section 2.14; or

 (b) the person liable to pay the fee in relation to the proceeding is represented by a lawyer who is not charging the person in relation to the proceeding.

 (3) If the payment of a fee is deferred, the fee must be paid:

 (a) within 28 days after the day the payment is deferred; or

 (b) within another period approved, in writing, by the Registrar or authorised officer for the payment of that fee.

Note   If a setting down fee in relation to a hearing is deferred and the hearing does not occur, the setting down fee is still payable in accordance with this subsection.

 (4) A fee may be deferred more than once.

 (5) The Registrar or authorised officer may impose conditions on the deferral of the payment of a fee.

Note   A decision of the Registrar or authorised officer under this section is reviewable by the AAT: see section 2.21.

2.16 Payment of fee on invoice

 (1) Section 2.14 does not apply to a person liable to pay a fee mentioned in Schedule 1 in relation to a proceeding if, at the time the fee would be payable under section 2.14, the liable person:

 (a) is an approved user of court services in relation to the relevant court; or

 (b) is represented by a lawyer who is an approved user of court services in relation to the relevant court.

 (2) If the liable person has not paid the fee, the relevant court may:

 (a) if paragraph (1) (a) applies—invoice the person for the fee; or

 (b) if paragraph (1) (b) applies—invoice the person, or the lawyer representing the person, for the fee.

 (3) The approved user of court services must pay the fee within 30 days after the approved user, or the person represented by the approved user, receives the invoice.

Approval of user of court services

 (4) A person or a lawyer is an approved user of court services in relation to the relevant court if the Registrar of that court has approved the person or lawyer for this section.

 (5) In deciding whether to approve a person or lawyer for this section, the Registrar must consider the following:

  (a) the person or lawyer’s financial history with the court, including the frequency of dealings with the court and whether fees have been paid;

 (b) whether the person or lawyer provides a guarantee;

 (c) whether the person or lawyer is, or is likely to be, a regular user of the services of the court;

 (d) the financial circumstances of the person or lawyer;

 (e) any other matter the Registrar considers relevant.

 (6) The Registrar may impose conditions on the approval of the person or lawyer.

2.17 Payment of fee in advance

 (1) A person may pay an amount to the Federal Court or Federal Magistrates Court on account if:

 (a) the person is an approved user of court services in relation to that court under subsection 2.16 (4); and

 (b) the person expects to become liable to pay a fee mentioned in Schedule 1 in relation to a proceeding in that court; and

 (c) the Registrar of that court authorises the person to pay fees in advance.

 (2) If an amount is paid under subsection (1), any fees payable by the person must be charged against that amount until the amount is exhausted.             

 (3)  The Registrar may impose written conditions on the authorisation of a person for this section.

2.18 What happens if fee is not paid

 (1) This section applies if the payment of a fee:

 (a) is not deferred under section 2.15; and

 (b) cannot be invoiced under section 2.16.

 (2) If a person is required to pay a fee mentioned in Schedule 1 in relation to a proceeding before, or at the time of, the filing of a document or the provision of a service for which the fee is payable, the document must not be filed or the service must not be provided until the whole fee is paid.

 (3) However, the relevant court for the proceeding, or a Judge, Federal Magistrate or Registrar of that court, may allow the document to be filed or the service to be provided despite the fee, or part of the fee, not being paid.

 (4) If a setting down fee or a hearing fee, or part of that fee, for a hearing is not paid in relation to a proceeding:

 (a) the relevant court, or a Judge, Federal Magistrate or Registrar of that court, may order that no proceeding, or no proceeding other than a specified proceeding, is to take place except by leave; and

 (b) a person other than the person liable to pay the fee may pay the fee without affecting any power of the relevant court, or of a Judge, Federal Magistrate or Registrar of that court, to make an order for costs for the fee; and

 (c) the relevant court, or a Judge, Federal Magistrate or Registrar of that court, may vacate the hearing day.

Division 2.6 Miscellaneous

2.19 Refund of fees

General

 (1) A person is entitled to a refund of an amount in relation to the payment of a fee mentioned in Schedule 1 if the person pays more than the person is required to pay for the fee under this regulation.

 (2) The amount to be refunded is the difference between the amount paid by the person and the amount that the person is required to pay for the fee.

 (3) A person is entitled to the refund of the amount paid by the person as a fee mentioned in Schedule 1 if:

 (a) the fee had already been paid by another person; or

 (b) the fee was not payable under this regulation.

Setting down fee

 (4) A person is not entitled to the refund of the amount paid by the person as a setting down fee for a hearing in relation to a proceeding if the first hearing day fixed by the setting down, or a hearing day fixed in place of the first hearing day, does not occur.

Hearing fees—hearings not commenced

 (5) A person is entitled to the refund of the amount paid by the person as a hearing fee for a hearing that has not commenced in relation to a proceeding if:

 (a) the person notifies the Registrar or an authorised officer of the relevant court, in accordance with subsection (6), that the hearing will not occur or will occur only for the purpose of making formal orders; and

 (b) the hearing does not occur or occurs only for the purpose of making formal orders.

 (6) The person must notify the Registrar or authorised officer in writing:

 (a) if the hearing day was fixed less than 10 business days before the hearing day—at least 2 business days before the hearing day; and

 (b) in any other case—at least 10 business days before the hearing day.

 (7) Despite subsection (5), a Registrar or authorised officer may refund a hearing fee for a hearing that has not commenced if:

 (a) the person who paid the hearing fee has not notified the Registrar or authorised officer in accordance with paragraph (5) (a) and subsection (6); and

 (b) the Registrar or authorised officer is satisfied that the reason the person has not notified the Registrar or authorised officer is not the fault of the person; and

 (c) the hearing does not occur or occurs only for the purpose of making formal orders.

 (8) For subsections (5) and (7), formal orders means orders finalising the proceedings that were to be the subject of the hearing.

Hearing fees—hearings commenced

 (9) A person is entitled to the refund of the amount paid by the person as a hearing fee for a hearing day for a hearing that has commenced if:

 (a) the proceeding is settled or discontinued before the hearing day; or

 (b) the hearing day does not proceed for some other reason.

Example

If a person pays hearing fees in advance for 20 hearing days, but the proceeding finishes after 10 hearing days, a person is entitled to a refund of the hearing fees paid for the unused hearing days.

Mediation fee

 (10) A person is entitled to the refund of the amount paid by the person as a mediation fee in relation to a proceeding if:

 (a) the mediation does not proceed on the occasion for which the fee was paid; and

 (b) the relevant court, or a Judge, Federal Magistrate or Registrar of that court, orders a refund of the fee.

Note   A decision of the Registrar or authorised officer under subsection (7) is reviewable by the AAT: see section 2.21.

2.20 Biennial increase in fees

 (1) The amount of each fee mentioned in Schedule 1, other than the fees mentioned in any of items 102 to 104, 124, 202, 209, 210 and 220, is increased on 1 July 2014, and on each second 1 July following that day.

 (2) If, in a relevant period, the latest CPI number is greater than the earlier CPI number, the fee is increased, on 1 July immediately following the end of the period, in accordance with the formula:

where:

earlier CPI number is the CPI number for the last March quarter before the start of the relevant period.

fee is the fee in force at the end of the relevant period.

latest CPI number is the CPI number for the last March quarter before the end of the relevant period.

 (3) The amount of the fee worked out under subsection (2) is to be rounded to an amount of dollars and cents and then further rounded as follows:

 (a) if the amount is $50 or more—the amount is to be rounded to the nearest amount that is a multiple of $5;

 (b) if the amount is less than $50—the amount is to be rounded to the nearest whole dollar;

 (c) if the amount to be rounded is 50 cents, the amount is to be rounded down.

 (4) If the Australian Statistician publishes for a particular March quarter a CPI number in substitution for a CPI number previously published by the Australian Statistician for that quarter, the publication of the later CPI number is disregarded for this section.

 (5) However, if the Australian Statistician changes the reference base for the Consumer Price Index, then for the application of this section after the change is made, regard must be had only to CPI numbers published in terms of the new reference base.

 (6) In this section:

CPI number means the All Groups Consumer Price Index number (being the weighted average of the 8 Australian capital cities) published by the Australian Statistician.

March quarter means a period of 3 months ending at the end of March.

relevant period means a 2 year period beginning on 1 July 2012 or each second 1 July following that day.

2.21 Notice of decision and AAT review

 (1) A Registrar or an authorised officer must give a person liable to pay a fee mentioned in Schedule 1 a notice in accordance with this section if the Registrar or authorised officer makes a decision about the payment of the fee under:

 (a) section 2.06 or 2.15; or

 (b) subsection 2.08 (4) or 2.19 (7).

 (2) The Registrar or authorised officer must give the notice to the liable person within 28 days after making the decision.

 (3) The notice must set out:

 (a) the decision; and

 (b) a statement that the liable person may apply to the Administrative Appeals Tribunal for review of the decision; and

 (c) reasons for the decision.

 (4) Paragraphs (3) (b) and (c) only apply if the decision is:

 (a) to not exempt a person from paying a fee; or

 (b) to not defer the payment of a fee; or

 (c) to not refund a fee that has been paid.

 (5) The liable person may apply to the Administrative Appeals Tribunal for review of the decision.

 (6) Failure to comply with paragraph (3) (b) does not affect the validity of the decision.

2.22 Debt due to Commonwealth

  Any fee mentioned in Schedule 1 that is not paid in accordance with this regulation is recoverable by the Commonwealth as a debt due to the Commonwealth.

Part 3 Remuneration and allowances for jurors and potential jurors—Federal Court

3.01 Purpose of Part

  For section 23EH of the Federal Court Act, this Part provides for remuneration and allowances to be payable to jurors and potential jurors in relation to proceedings in the Federal Court.

3.02 Remuneration

 (1) Schedule 2 sets out the remuneration that is payable to jurors and potential jurors.

Note   Remuneration is subject to increase under section 3.04.

 (2) The amounts mentioned in Schedule 2 are payable:

 (a) for each day that a juror or potential juror attends court; and

 (b) for each day, to a maximum of 5 days, that a juror or potential juror is not required to attend court.

3.03 Allowances

 (1) The amounts mentioned in Schedule 2 include travel and refreshment allowances.

 (2) However, if a juror or potential juror is required to travel more than 30 km (by the shortest practical route) from his or her usual place of residence to the Federal Court, the juror or potential juror may apply to the Sheriff of the Federal Court for reimbursement of reasonable travel costs.

 (3) The Sheriff of the Federal Court may approve:

 (a) when the claim for reimbursement of travel costs may be submitted; and

 (b) the form of the claim; and

 (c) the information or documents that must be submitted with the claim.

 (4) If the Sheriff of the Federal Court does not, under paragraph (3) (a), approve when the claim may be submitted, a claim for reimbursement of travel costs may be submitted within 5 days of the juror or potential juror incurring the travel costs.

3.04 Biennial increase in juror’s remuneration

  (1) The amount of remuneration set out in Schedule 2 is increased on 1 July 2014, and on each second 1 July following that day.

 (2) If, in a relevant period, the latest CPI number is greater than the earlier CPI number, the remuneration increases, on 1 July immediately following the end of the period, in accordance with the formula:

where:

earlier CPI number is the CPI number for the last March quarter before the start of the relevant period.

latest CPI number is the CPI number for the last March quarter before the end of the relevant period.

remuneration is the amount of remuneration in force at the end of the relevant period.

 (3) If, apart from this clause, remuneration increased under subsection (2) would be an amount of dollars and cents, the amount is taken to be rounded to the nearest whole dollar and, if the amount to be rounded is 50 cents, rounded down.

 (4) If the Australian Statistician publishes for a particular March quarter a CPI number in substitution for a CPI number previously published by the Australian Statistician for that quarter, the publication of the later CPI number is disregarded for this section.

 (5) However, if the Australian Statistician changes the reference base for the Consumer Price Index, then for the application of this section after the change is made, regard must be had only to CPI numbers published in terms of the new reference base.

 (6) In this section:

CPI number means the All Groups Consumer Price Index number (being the weighted average of the 8 Australian capital cities) published by the Australian Statistician.

March quarter means a period of 3 months ending at the end of March.

relevant period means a 2 year period beginning on 1 July 2012 or on each second 1 July following that day.

Part 4 Miscellaneous

4.01 Prescribed contract limit—Federal Court

  For subsection 18A (4) of the Federal Court Act, the amount of $1 million is prescribed.

4.02 Modification of Legislative Instruments Act 2003—Federal Magistrates Court

  For subsection 120 (4) of the Federal Magistrates Act, paragraph 14 (1) (a) of the Legislative Instruments Act 2003 applies in relation to the Federal Magistrates Court as if that paragraph were modified by omitting ‘Act, or of any disallowable legislative instrument,’ and inserting ‘Act, any disallowable instrument or any rules of court,’.

Part 5 Repeal and transitional

5.01 Federal Court of Australia Regulations 2004

 (1) The following regulations are repealed:

 (a) the Federal Court of Australia Regulations 2004 (Statutory Rules 2004 No. 291);

 (b) the Federal Court of Australia Amendment Regulations 2006 (No. 1) (Select Legislative Instrument (SLI) 2006 No. 64);

 (c) the Federal Court of Australia Amendment Regulations 2006 (No. 2) (SLI 2006 No. 234);

 (d) the Federal Court of Australia Amendment Regulations 2006 (No. 3) (SLI 2006 No. 309);

 (e) the Federal Court of Australia Amendment Regulations 2009 (No. 1) (SLI 2009 No. 128);

 (f) the Federal Court of Australia Amendment Regulations 2009 (No. 2) (SLI 2009 No. 189);

 (g) the Federal Court of Australia Amendment Regulations 2009 (No. 3) (SLI 2009 No. 358);

 (h) the Federal Court of Australia Amendment Regulations 2010 (No. 1) (SLI 2010 No. 166);

 (i) the Federal Court of Australia Amendment Regulations 2010 (No. 2) (SLI 2010 No. 243);

 (j) the Federal Court of Australia Amendment Regulations 2011 (No. 1) (SLI 2011 No. 37).

 (2) Despite the repeal of the Federal Court of Australia Regulations 2004 by subsection (1), those Regulations, as in force immediately before 1 January 2013, (the old Regulations) continue to apply to a fee for a service requested under the old Regulations before 1 January 2013.

 (3) However, subregulation 15 (1) of the old Regulations continues to apply to a setting-down requested before 1 January 2013 only if the setting-down fee (within the meaning given by the old Regulations) was paid before 1 January 2013.

5.02 Federal Magistrates Regulations 2000

 (1) The following regulations are repealed:

 (a) the Federal Magistrates Regulations 2000 (Statutory Rules (SR) 2000 No. 102);

 (b) the Federal Magistrates Amendment Regulations 2000 (No. 1) (SR 2000 No. 245);

 (c) the Federal Magistrates Amendment Regulations 2000 (No. 2) (SR 2000 No. 255);

 (d) the Federal Magistrates Amendment Regulations 2004 (No. 1) (SR 2004 No. 292);

 (e) the Federal Magistrates Amendment Regulations 2004 (No. 2) (SR 2004 No. 320);

 (f) the Federal Magistrates Amendment Regulations 2005 (No. 1) (Select Legislative Instrument (SLI) 2005 No. 109);

 (g) the Federal Magistrates Amendment Regulations 2006 (No. 1) (SLI 2006 No. 81);

 (h) the Federal Magistrates Amendment Regulations 2006 (No. 2) (SLI 2006 No. 129);

 (i) the Federal Magistrates Amendment Regulations 2006 (No. 3) (SLI 2006 No. 235);

 (j) the Federal Magistrates Amendment Regulations 2007 (No. 1) (SLI 2007 No. 294);

 (k) the Federal Magistrates Amendment Regulations 2009 (No. 1) (SLI 2009 No. 129);

 (l) the Federal Magistrates Amendment Regulations 2009 (No. 2) (SLI 2009 No. 190);

 (m) the Federal Magistrates Amendment Regulations 2010 (No. 1) (SLI 2010 No. 167);

 (n) the Federal Magistrates Amendment Regulations 2010 (No. 2) (SLI 2010 No. 244);

 (o) the Federal Magistrates Amendment Regulations 2011 (No. 1) (SLI 2011 No. 38);

 (p) the Federal Magistrates Amendment Regulations 2012 (No. 1) (SLI 2012 No. 62).

 (2) Despite the repeal of the Federal Magistrates Regulations 2000 by subsection (1):

 (a) those Regulations, as in force immediately before 1 January 2013, (the old Regulations) continue to apply to a fee for a service requested under the old Regulations before 1 January 2013; and

 (b) regulation 8 of those Regulations, as in force on 31 October 2010, continues to apply to proceedings commenced before 1 November 2010.

 (3) However, subregulations 12 (1) and (2) of the old Regulations continue to apply to a setting down requested before 1 January 2013 only if the setting down fee (within the meaning given by the old Regulations) was paid before 1 January 2013.

Schedule 1 Fees

(section 2.02)

Part 1 Fees for proceedings in Federal Court

Note   The fees mentioned in this Part (other than the fees mentioned in items 102, 103, 104 and 124) are subject to biennial increase under section 2.20.

Part 2 Fees for proceedings in Federal Magistrates Court

Note   The fees mentioned in this Schedule (other than the fees mentioned in items 202, 209, 210 and 220) are subject to biennial increase under section 2.20.

Schedule 2 Remuneration and allowances

(section 3.02)

Note

1. All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See www.comlaw.gov.au.