Division 5.1Application, saving and transitional provisions in relation to the commencement of this instrument

## Part 1—Preliminary #### 1.01 Name This instrument is the Federal Court and Federal Circuit and Family Court Regulations 2022. #### 1.02 Authority This instrument is made under the following: (a) the Federal Circuit and Family Court of Australia Act 2021; (b) the Federal Court of Australia Act 1976. #### 1.03 Definitions > Note 1: A number of expressions used in this instrument are defined in the Federal Court Act, including the following: (a) juror; (b) potential juror. > Note 2: A number of expressions used in this instrument are defined in the Federal Circuit and Family Court Act, including the following: (a) Chief Executive Officer; (b) Registrar. (1) In this instrument: > applicant, in relation to a proceeding, means the person who commences the proceeding. > approved user of court services, in relation to a relevant court: see subsection 2.16(4). > 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 relevant Registrar of that court to exercise the power or carry out the function; or (b) in relation to the Federal Circuit and Family Court of Australia (Division 2)—the following: (i) an officer of that court authorised by the Chief Executive Officer to exercise the power or carry out the function; (ii) an officer of another court performing the function under an arrangement under section 246 of the Federal Circuit and Family Court Act; (iii) an employee of an agency or organisation performing the function under an arrangement under section 247 of that Act. > corporation: see section 1.04. > CPI number, for a quarter, means the All Groups Consumer Price Index number (being the weighted average of the 8 Australian capital cities) published by the Australian Statistician for that quarter. > Family Law Act means the Family Law Act 1975. > Federal Circuit and Family Court Act means the Federal Circuit and Family Court of Australia Act 2021. > 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. > filing fee means a fee mentioned in any of items 101 to 115C and 201 to 214A of Schedule 1. > 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. > March quarter means a period of 3 months ending at the end of March. > mediation fee means a fee mentioned in item 132 or 224 of Schedule 1. > 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) any other non‑corporate Commonwealth entity within the meaning of the Public Governance, Performance and Accountability Act 2013; (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. > publicly listed company means a company that is listed on a stock exchange or financial market in any country. > relevant court, in relation to a proceeding, means: (a) if the proceeding is in the Federal Court—that court; or (b) if the proceeding is in the Federal Circuit and Family Court of Australia (Division 2)—that court. > relevant period means a financial year starting on or after 1 July 2022. > relevant Registrar of a court means: (a) in relation to the Federal Court—the following: (i) the Chief Executive Officer; (ii) a Registrar of the court; (iii) a District Registrar of the court; (iv) a Deputy District Registrar of the court; or (b) in relation to the Federal Circuit and Family Court of Australia (Division 2)—the following: (i) the Chief Executive Officer; (ii) a Senior Registrar or Registrar of the court. > setting down fee means a fee mentioned in item 116 or 215 of Schedule 1. > small claims proceeding means a proceeding dealt with as a small claims proceeding under: (a) section 548 of the Fair Work Act 2009; or (b) section 199 of the National Consumer Credit Protection Act 2009. Expressions used in this instrument that are defined in the Federal Court Act and the Federal Circuit and Family Court Act (2) When used in a provision of this instrument, an expression defined in the Federal Court Act and the Federal Circuit and Family Court Act has the meaning given by whichever of those Acts is appropriate in the context of the application and operation of that provision. #### 1.04 Meaning of corporation (1) In this instrument, 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 corporation registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006; (e) a trade union. (2) However, corporation does not include the following: (a) a corporation sole; (b) a small business; (c) an unincorporated not‑for‑profit association; (d) a public authority. (3) For paragraph (2)(b), a small business is a business with: (a) no more than 19 employees; and (b) a total turnover of less than $2 million each year. (4) For paragraph (2)(c), a not‑for‑profit association is 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. (5) A corporation is not required to be subject to the Corporations Act 2001 to be a corporation for the purposes of this instrument. ## Part 2—Fees ### Division 2.1—General #### 2.01 Purpose of this Part This Part prescribes matters relating to fees for the purposes of section 60 of the Federal Court Act and section 285 of the Federal Circuit and Family Court Act. #### 2.01A Application of this Part This Part applies to a fee for a service that is requested, or for the filing of a document that is lodged, in relation to the following: (a) a proceeding in the Federal Court; (b) a proceeding in the Federal Circuit and Family Court of Australia (Division 2), other than a proceeding under the Family Law Act. > Note: For fees in relation to proceedings under the Family Law Act, see the Family Law (Fees) Regulations 2022. #### 2.02 Fees (1) Schedule 1 sets out the fees payable for the following: (a) the filing of a document in relation to a proceeding; (b) a service in relation to a proceeding provided by: (i) a relevant court; or (ii) an officer of a relevant court; or (iii) another person acting on behalf of a 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 liable person for 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 and a fee is mentioned in the item for a publicly listed company—that fee; or (b) if the corporation is a publicly listed company and a fee is mentioned in the item for a corporation, but not for a publicly listed company—that fee; or (c) if the corporation is not a publicly listed company and a fee is mentioned in the item for a corporation—that fee; or (d) 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 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 fees #### 2.03 Persons liable to pay fees (1) A fee in relation to a proceeding in a relevant court is payable as set out in this section, unless the relevant court, or a Judge or relevant Registrar of that court, directs otherwise. Filing fees (2) A filing fee is payable by the person for whom the relevant document is filed. Setting down fees and hearing fees (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 set of hearing fees is payable for all the proceedings; and (b) the amount of each of the setting down fee and the set of hearing fees is apportioned equally between the liable persons for the fee. Mediation fees (5) A mediation fee is payable by the applicant in the proceeding to which the mediation relates. Fees for taxation of bill of costs—Federal Court (6) If: (a) a fee mentioned in any of items 128 to 131 of Schedule 1 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 relevant Registrar of the Federal Court. Fees for other services (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 When fees for producing files and copying documents are payable (1) Despite Divisions 2.3 and 2.4, a fee mentioned in item 123 or 219 of Schedule 1 is payable in all proceedings. (2) However, the fee is not payable in relation to a proceeding if: (a) either: (i) apart from subsection (1), the liable person for the fee would be exempt from paying the fee under section 2.05; or (ii) the liable person for the fee is exempt under section 2.06 from paying another fee in relation to the proceeding, and that other fee was the most recent fee that would otherwise have been payable by the liable person in the proceeding; and (b) the copy of the relevant 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 and reduced fees #### 2.05 Persons exempt from paying fee—general (1) A person is exempt from paying a fee mentioned in Schedule 1 (other than a fee mentioned in item 115C or 214A) in relation to a proceeding if, at the time the fee is payable, one or more of the following apply: (a) the person has been granted legal aid for the proceeding 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; (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, or is in immigration detention (within the meaning of the Migration Act 1958); (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 received funding for the proceeding under Part 11 of the Native Title Act 1993 from: (i) a representative body within the meaning of section 253 of that Act; or (ii) a person or body to whom funding has been made available under section 203FE of that Act. (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 (other than a fee mentioned in item 115C, 201A or 214A) is payable by an individual in relation to a proceeding; and (b) in the opinion of the relevant 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 relevant 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 relevant Registrar or authorised officer must consider the individual’s income, day‑to‑day living expenses, liabilities and assets. > Note: A decision of the relevant Registrar or authorised officer under this section is reviewable by the ART: see section 2.21. #### 2.06A Reduced fee or fee exemption for migration proceedings—financial hardship (1) This section applies to a proceeding in the Federal Circuit and Family Court of Australia (Division 2) of a kind mentioned in item 201A of Schedule 1. (2) If: (a) the full fee mentioned in item 201A of Schedule 1 is payable by an individual in relation to the proceeding; and (b) in the opinion of a relevant Registrar or an authorised officer of the Federal Circuit and Family Court of Australia (Division 2) at the time the fee is payable, the payment of the full fee would cause financial hardship to the individual; the relevant Registrar or authorised officer may determine that: (c) the individual may instead pay the reduced fee specified in that item; or (d) if, in the opinion of the relevant Registrar or the authorised officer at that time, the payment of the reduced fee would also cause financial hardship to the individual—the individual is exempt from paying both the full fee and the reduced fee. (3) In considering whether payment of the full fee or the reduced fee would cause financial hardship to an individual, the relevant Registrar or authorised officer must consider the individual’s income, day‑to‑day living expenses, liabilities and assets. > Note: A decision of a relevant Registrar or an authorised officer under this section is reviewable by the ART: see section 2.21. ### Division 2.4—When fees are not payable #### 2.07 Fees not payable if already paid A fee mentioned in Schedule 1 is not payable by the liable person for the fee if another person has paid the fee. #### 2.08 Fees not payable in certain Federal Court proceedings (1) This section applies to proceedings in the Federal Court. (2) A fee mentioned in Schedule 1 is not payable in relation to any of the following proceedings: (a) an appeal from a judgment in relation to an application under section 46PO or 46PP of the Australian Human Rights Commission Act 1986; (b) an appeal from a judgment 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 that an employer has taken adverse action against the person in breach of section 351 of that Act; (ba) an appeal from a judgment in relation to an application made by a person under section 539 of the Fair Work Act 2009 for orders in relation to an alleged contravention of Division 2 of Part 3‑5A of that Act; (c) an appeal from a judgment 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) an appeal on a question of law from a decision of the Administrative Review Tribunal in a proceeding for ART review (within the meaning of the Child Support (Registration and Collection) Act 1988) under subsection 172(1) of the Administrative Review Tribunal Act 2024; (h) a proceeding for which an international convention that is in force for Australia provides that no fee is to be payable; (i) an application under section 23 of the International Arbitration Act 1974 for the issue of a subpoena. Taxation proceedings (3) A fee mentioned in Schedule 1 is not payable in relation to any of the following kinds of proceedings if a relevant Registrar or authorised officer of the court is satisfied that the circumstance set out in subsection (4) apply in relation to the proceedings: (a) an appeal under section 14ZZ of the Taxation Administration Act 1953; (b) an appeal from a decision of the Taxation and Business jurisdictional area of the Administrative Review 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. > Note: A decision of the relevant Registrar or authorised officer under this subsection is reviewable by the ART: see section 2.21. (4) The circumstances are 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. #### 2.09 Fees not payable in certain Federal Circuit and Family Court of Australia (Division 2) proceedings (1) This section applies to proceedings in the Federal Circuit and Family Court of Australia (Division 2). (2) A fee mentioned in Schedule 1 is not payable in relation to any of the following: (a) an application for an extension of the time within which a proceeding may be commenced; (b) a proceeding for which an international convention that is in force for Australia 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; (e) an appeal on a question of law from a decision of the Administrative Review Tribunal in a proceeding for ART review (within the meaning of the Child Support (Registration and Collection) Act 1988) under subsection 172(1) of the Administrative Review Tribunal Act 2024. (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 fees are payable (1) A fee mentioned in Schedule 1, other than a filing fee mentioned in item 102 or 202, 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 a filing fee mentioned in item 103 or 209, 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. (2A) A fee mentioned in Schedule 1, other than a filing fee mentioned in item 103A or 209A, is not payable in relation to an application under section 539 of the Fair Work Act 2009 for orders in relation to an alleged contravention of Division 2 of Part 3‑5A of that Act. (3) A fee mentioned in Schedule 1, other than a filing fee mentioned in item 104 or 210, 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 a filing fee mentioned in any of items 211 to 214, is not payable in relation to a small claims proceeding in the Federal Circuit and Family Court of Australia (Division 2). #### 2.11 When filing fees are not payable Federal Court (1) A filing fee (other than the filing fee mentioned in item 115C of Schedule 1) is not payable in relation to any of 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) or (3) 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; (g) a proceeding transferred from the Federal Circuit and Family Court of Australia (Division 2) by the Federal Court under section 32AC of the Federal Court Act; (h) a proceeding: (i) transferred by the Federal Circuit and Family Court of Australia (Division 2) to the Federal Court under section 153 of the Federal Circuit and Family Court Act; and (ii) whose transfer is confirmed by the Federal Court under section 32AD of the Federal Court Act. Federal Circuit and Family Court of Australia (Division 2) (2) A filing fee (other than the filing fee mentioned in item 214A of Schedule 1) is not payable in relation to a proceeding in the Federal Circuit and Family Court of Australia (Division 2) 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 Circuit and Family Court of Australia (Division 2) 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 Circuit and Family Court of Australia (Division 2) 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 fees are 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 a proceeding that is commenced by an interlocutory application; or (b) in relation to an application or appeal: (i) a setting down fee, or a fee for setting down under another law of the Commonwealth, has already been paid in relation to the proceeding; and (ii) that 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; or (j) the proceeding is one that is transferred from the Federal Circuit and Family Court of Australia (Division 2) by the Federal Court under section 32AC of the Federal Court Act and a setting down fee has already been paid in relation to the proceeding; or (k) all of the following apply: (i) the proceeding is one that is transferred by the Federal Circuit and Family Court of Australia (Division 2) to the Federal Court under section 153 of the Federal Circuit and Family Court Act; (ii) the transfer of the proceeding is confirmed by the Federal Court under section 32AD of the Federal Court Act; (iii) a setting down fee has already been paid in relation to the proceeding. Federal Circuit and Family Court of Australia (Division 2) (2) A setting down fee is not payable in relation to a proceeding in the Federal Circuit and Family Court of Australia (Division 2) 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 Circuit and Family Court of Australia (Division 2) 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 Circuit and Family Court of Australia (Division 2) 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 fees are 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 judgment; or (c) in relation to an application or appeal: (i) a hearing fee, or a fee for the hearing under another law of the Commonwealth, has already been paid for the application or appeal; and (ii) that 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; or (k) the proceeding is one that is transferred from the Federal Circuit and Family Court of Australia (Division 2) by the Federal Court under section 32AC of the Federal Court Act and a hearing fee has already been paid in relation to the proceeding; or (l) all of the following apply: (i) the proceeding is one that is transferred by the Federal Circuit and Family Court of Australia (Division 2) to the Federal Court under section 153 of the Federal Circuit and Family Court Act; (ii) the transfer of the proceeding is confirmed by the Federal Court under section 32AD of the Federal Court Act; (iii) a hearing fee has already been paid in relation to the proceeding. Federal Circuit and Family Court of Australia (Division 2) (2) A hearing fee is not payable in relation to a proceeding in the Federal Circuit and Family Court of Australia (Division 2) 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 Circuit and Family Court of Australia (Division 2) 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 Circuit and Family Court of Australia (Division 2) 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 fees must be paid Filing fee (1) A filing fee for a document must be paid before the relevant document is filed. Setting down fee (2) A setting down fee for a hearing in relation to a proceeding must be paid when a relevant court fixes the hearing, as follows: (a) if the hearing is fixed to commence within 28 days after the day when the court fixes the hearing—within the period, or at the time, approved by the relevant 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 is fixed to commence. (3) To avoid doubt, a setting down fee is payable for the fixing of the hearing of a proceeding whether or not the proceedings are heard on those days, on later days or at all. Hearing fee (4) A hearing fee for a hearing day 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 (5) A fee mentioned in any of items 124, 125, 220 and 221 of Schedule 1 must be paid within the period, or at the time, approved by the relevant Registrar or an authorised officer of the relevant court for the payment of the fee. Fee for other service (6) 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 relevant Registrar or an authorised officer of the relevant court defers the payment of the fee. (2) The relevant Registrar or authorised officer may defer the payment of a fee under subsection (1) (other than a fee mentioned in any of items 123 to 125 and 219 to 221 of Schedule 1) if: (a) in the opinion of the relevant 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 liable person for the fee 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 relevant 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 relevant Registrar or authorised officer may impose conditions on the deferral of the payment of a fee. > Note: A decision of the relevant Registrar or authorised officer under this section is reviewable by the ART: see section 2.21. #### 2.16 Payment of fees on invoice Payment of fee by approved user of court services (1) Section 2.14 does not apply to a fee payable in relation to a proceeding in a relevant court if, at the time the fee would be payable under that section, the liable person for the fee: (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 liable person for the fee; or (b) if paragraph (1)(b) applies—invoice the liable person, or the lawyer representing the liable person, for the fee. (3) The liable person or the lawyer (as applicable) must pay the fee within 30 days after the day the person or lawyer receives the invoice. Approved user of court services (4) A person is an approved user of court services in relation to a relevant court if the relevant Registrar of that court has approved the person for the purposes of this section. (5) In deciding whether to approve the person for the purposes of this section, the relevant Registrar must consider the following: (a) the person’s financial history with the court, including the frequency of dealings with the court and whether fees have been paid; (b) whether the person has agreed to be responsible for, and guarantees, the payment of fees due for payment by the person within the period mentioned in subsection (3); (c) whether the person is, or is likely to be, a regular user of the services of the court; (d) the financial circumstances of the person; (e) any other matter the relevant Registrar considers relevant. (6) The relevant Registrar may impose conditions on the approval of the person for this section. #### 2.17 Payment of fees in advance (1) A person may pay an amount on account to a relevant court in relation to a proceeding if: (a) the person is an approved user of court services in relation to that court; 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 relevant 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 relevant Registrar may impose conditions on the authorisation of a person for this section. #### 2.18 What happens if fees are 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 fee is paid. (3) However, the relevant court for the proceeding, or a Judge or relevant 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 a part of either of those fees) is not paid in relation to a proceeding: (a) the relevant court, or a Judge or relevant 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 or relevant Registrar of that court, to make an order for costs for the fee; and (c) the relevant court, or a Judge or relevant 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: (a) the person pays an amount for the fee; and (b) the amount paid by the person is more than the amount that is required to be paid under this instrument for the fee. (2) The amount to be refunded is the difference between the amount paid by the person and the amount of the fee that is required to be paid under this instrument. (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 instrument. 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 day, or a part of a hearing day, in respect of a hearing that has not commenced if: (a) the person notifies the relevant 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 orders finalising the proceeding that was to be the subject of the hearing; and (b) the hearing does not occur or occurs only for the purpose of making those orders. (6) The person must notify the relevant 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 relevant Registrar or authorised officer may refund a hearing fee for a hearing day, or a part of a hearing day, in respect of a hearing that has not commenced if: (a) the person who paid the hearing fee has not notified the relevant Registrar or authorised officer in accordance with paragraph (5)(a) and subsection (6); and (b) the relevant Registrar or authorised officer is satisfied that the reason the person has not notified the relevant 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 orders finalising the proceedings that were the subject of the hearing. > Note: A decision of the relevant Registrar or authorised officer under this subsection is reviewable by the ART: see section 2.21. Hearing fees—hearings commenced (8) A person is entitled to the refund of the amount paid by the person as a hearing fee for a hearing day, or a part of a hearing day, in respect of a hearing that has commenced if: (a) the proceeding that was the subject of the hearing is settled or discontinued before the hearing day; or (b) the hearing day does not proceed for some other reason. > Note: Example: If a person pays hearing fees in advance for 20 hearing days, but the proceeding finishes after 12 hearing days, a person is entitled to a refund of the hearing fees paid for 8 hearing days. Mediation fee (9) 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 or relevant Registrar of that court, orders a refund of the fee. #### 2.20 Annual increase in fees (1) The amount of each fee mentioned in Schedule 1, other than the fees in any of items 102, 103, 104, 107, 124, 202, 209, 210 and 220 or the reduced fee in item 201A, is increased on 1 July 2023, and on each 1 July following that day, in accordance with this section. Fees other than reduced fees (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 amount of 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. Reduced fees (4) If the full fee mentioned in item 201A of Schedule 1 is increased and rounded under subsections (2) and (3), the reduced fee mentioned in that item is increased in accordance with subsection (5) at the same time. (5) The increased reduced fee is half the amount of the full fee (as increased and rounded under subsections (2) and (3)), rounded down to the nearest multiple of $5. Other rules (6) 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. (7) However, if the Australian Statistician changes the index reference period for the CPI number, 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 index reference period. #### 2.21 Notice of decision and ART review Notice of decision (1) A relevant Registrar or an authorised officer must give a liable person for a fee a notice in accordance with this section if the relevant Registrar or authorised officer makes a decision about the payment of the fee under section 2.06 or 2.06A, subsection 2.08(3), section 2.15 or subsection 2.19(7). (2) The relevant 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) for a decision mentioned in subsection (5): (i) a statement that the liable person may apply to the Administrative Review Tribunal for review of the decision; and (ii) reasons for the decision. (4) Failure to comply with subparagraph (3)(b)(i) does not affect the validity of the decision. Application for review of decision (5) The liable person may apply to the Administrative Review Tribunal for review of a decision: (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 hearing fee that has been paid for a hearing day in respect of a hearing that has not commenced; or (d) to not determine that a person may pay a reduced fee; or (e) to not be satisfied that the circumstances set out in subsection 2.08(4) apply in respect of certain taxation proceedings. #### 2.22 Debt due to Commonwealth Any fee that is not paid in accordance with this instrument is recoverable by the Commonwealth as a debt due to the Commonwealth. ## Part 3—Jurors’ remuneration #### 3.01 Purpose of Part For the purposes of section 23EH of the Federal Court Act, this Part provides for remuneration and allowances that are payable to a person who is a potential juror or juror in relation to a proceeding in the Federal Court. #### 3.02 Remuneration and allowances—base amount (1) Schedule 2 sets out the amounts of remuneration and allowances that are payable to the person. > Note: The amounts are subject to increase under section 3.04. Amounts for attendance (2) The amounts mentioned in Schedule 2 are payable for each day that the person attends court. Amounts for non‑attendance (3) The amounts mentioned in Schedule 2 are also payable for each day, to a maximum of 5 days, that the person is not required to attend court. #### 3.03 Remuneration and allowances—reimbursement of additional travel costs (1) If the person is required to travel more than 30 kilometres (by the shortest practical route) from the person’s usual place of residence to the Federal Court, the person may apply to the Sheriff of the Federal Court for reimbursement of reasonable travel costs. (2) 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. (3) If the Sheriff of the Federal Court does not, under paragraph (2)(a), approve when the claim may be submitted, a claim for reimbursement of travel costs may be submitted within 5 days of the person incurring the travel costs. #### 3.04 Annual increase in remuneration and allowances (1) Each dollar amount mentioned in Schedule 2 is increased on 1 July 2023, and on each 1 July following that day, in accordance with this section. (2) If, in a relevant period, the latest CPI number is greater than the earlier CPI number, the amount is increased, on 1 July immediately following the end of the period, in accordance with the formula:  where: > amount is the amount in force at the end of the relevant period. > 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. (3) If, apart from this clause, an amount 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 index reference period for the CPI number, 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 index reference period. ## Part 4—Jurisdiction #### 4.02 Leave to appeal required for some family law and child support proceedings—prescribed judgments (1) For the purposes of paragraphs 28(1)(b) and (3)(e) of the Federal Circuit and Family Court Act, the following judgments are prescribed: (a) an interlocutory decree (other than a decree in relation to a child welfare matter); (b) an order under section 102PE, 102QF or 102QG of the Family Law Act. (2) For paragraph (1)(a), a child welfare matter is a matter relating to the following: (a) the person or persons with whom a child is to live; (b) the person or persons with whom a child is to spend time or communicate; (c) any other aspect of parental responsibility (within the meaning of Part VII of the Family Law Act) for a child. ## Part 5—Application, saving and transitional provisions ### Division 5.1—Application, saving and transitional provisions in relation to the commencement of this instrument #### 5.01 Definitions In this Division: > old regulations means the Federal Court and Federal Circuit and Family Court Regulations 2012, as in force immediately before 1 April 2023. #### 5.02 Application provision This instrument applies in relation to the liability of a person to pay any of the following fees: (a) a filing fee for filing a document on or after 1 April 2023; (b) a setting down fee for a hearing if the day when the hearing is fixed is on or after 1 April 2023; (c) a hearing fee for a hearing day if the day when the hearing day is fixed is on or after 1 April 2023; (d) any other fee under this instrument for a document or service provided on or after 1 April 2023. #### 5.03 Saving provision To avoid doubt, the old regulations continue to apply in relation to the liability of a person to pay a fee incurred under the old regulations before 1 April 2023. > Note: Section 7 of the Acts Interpretation Act 1901 preserves the liability despite the repeal of the old regulations by this instrument on 1 April 2023. That section applies in relation to regulations because of section 13 of the Legislation Act 2003. #### 5.04 Things done under the old regulations (1) If: (a) a thing was done for a particular purpose under the old regulations; and (b) the thing could be done for that purpose under this instrument; the thing has effect for the purposes of this instrument as if it had been done for that purpose under this instrument. (2) Without limiting subsection (1), a reference in that subsection to a thing being done includes a reference to a notice or a determination being given or made. #### 5.05 Conduct, event or circumstances occurring before commencement (1) To avoid doubt, a function or duty may be performed, or a power exercised, under this instrument in relation to conduct engaged in, an event that occurred, or a circumstance that arose, before 1 April 2023. > Note: For example: (a) a fee may be paid after 1 April 2023 in accordance with section 2.15 of this instrument if the Registrar deferred the payment of the fee before that day; and (b) a person may pay a reduced fee in respect of a hearing that is fixed on or after 1 April 2023 if the Registrar determines before that day that the person may pay that fee. (2) This section does not limit section 5.04 of this instrument or section 7 of the Acts Interpretation Act 1901 (as that Act applies in relation to this instrument because of paragraph 13(1)(a) of the Legislation Act 2003). ### Division 5.2—Amendments made by the Fair Work and Other Legislation Amendment Regulations 2023 #### 5.06 Application provision The amendments of this instrument made by Division 3 of Part 1 of Schedule 1 to the Fair Work and Other Legislation Amendment Regulations 2023 apply in relation to the liability of a person to pay any of the following fees: (a) a filing fee for filing a document on or after 1 April 2023; (b) a setting down fee for a hearing if the day when the hearing is fixed is on or after 1 April 2023; (c) a hearing fee for a hearing day if the day when the hearing day is fixed is on or after 1 April 2023; (d) any other fee under this instrument for a document or service provided on or after 1 April 2023. ### Division 5.3—Amendments made by the Fair Work and Other Legislation Amendment (Secure Jobs, Better Pay) Regulations 2023 #### 5.07 Transitional provision—annual increase in fees Despite anything in subsection 2.20(1), the fee mentioned in item 212AA of the table in Part 2 of Schedule 1 is not to be increased on 1 July 2023.