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Practice notes

Every Issue

Cite as: (2004) 78(7) LIJ, p. 71

Federal Court

Cite as: (2004) 78(7) LIJ, p. 71

Biennial increase in fees
The federal Attorney-General’s Department has recently advised that, pursuant to regulations 2AB and 2AC of the Federal Court of Australia Regulations 1978, from 1 July 2004 the fees prescribed by each regulation will be the amount listed in the attached table. Details of the new fees will shortly be available on the Internet from the Court’s website at http://www.fedcourt.gov.au.

Filing and other fees

Schedule Item No

Document or Service

Fee

1

On filing a document by which proceedings in the Court (other than a proceeding mentioned in item 1A, an appeal from a judgment of the Court or another court, an application for leave or special leave to appeal or an incidental proceeding in the course of, or in connection with, proceedings) are commenced:


 

(a) if a corporation is liable to pay the fee

$1453

 

(b) in any other case

$606

 

 

 

1A

On filing an application under s170CP of the Workplace Relations Act 1996

$50

 

 

 

1AA

On filing an application under s46PO of the Human Rights and Equal Opportunity Commission Act 1986

$50

 

 

 

2

On filing an affidavit or other document originating an application for leave or special leave to appeal


 

(a) if a corporation is liable to pay the fee

$966

 

(b) in any other case

$483

 

 

 

3

On filing a notice of appeal instituting an appeal from a judgment of the Court or another court where no fee has been paid under item 2


 

(a) if a corporation is liable to pay the fee

$2422

 

(b) in any other case

$1211

 

 

 

3A

On filing a notice of appeal instituting an appeal from a decision of the Administrative Appeals Tribunal


 

(a) if a corporation is liable to pay the fee

$2422

 

(b) in any other case

$1211

 

 

 

4

On filing a notice of appeal in proceedings in relation to which a fee has been paid under item 2


 

(a) if a corporation is liable to pay the fee

$1456

 

(b) in any other case

$728

 

 

 

5

On making a request for a copy or copies of a document or documents (regardless of the number of documents to which the request relates):


 

(a) for the request

$3

 

(b) for each page included in a copy made in accordance with the request

$1

 



6

For each service or execution, or attempted service or execution, of the process of the Court by an officer of the Court

*

 

* An amount equal to the amount of any expenses reasonably incurred by that officer in the service or execution, or attempted service or execution, of the process of the Court, together with a charge calculated at the hourly rate of salary payable to an officer of the Court who is involved in the service or execution or attempted service or execution.

 

 

 

 

7

For the seizure and sale of goods by an officer of the Court in the execution of the process of the Court – poundage for each $100 value of goods.

$2

 

 

 

8

On filing an application to review a decision of the registrar, in accordance with sub-s35A(5) of the Act



(a) if a corporation is liable to pay the fee

$592


(b) in any other case

$296



9

On filing a notice of motion



(a) if a corporation is liable to pay the fee

$298


(b) in any other case

$149



10

On filing a cross claim:



(a) if a corporation is liable to pay the fee

$1453


(b) in any other case

$606



11

For issuing a subpoena to produce or give evidence

$49



12

On an appointment being given to tax a bill of costs in which the amount claimed in the bill is $10,000 or less

$576



12A

On an appointment being given to tax a bill of costs in which the amount claimed in the bill is more than $10,000:



(a) if a corporation is liable to pay the fee

$2762


(b) in any other case

$1381



13

For mediation by a court officer – for the first attendance at the mediation:



(a) if a corporation is liable to pay the fee

$606


(b) in any other case

$303



14

For each request to search and inspect files of the Court relating to a proceeding or purported proceeding (other than a request by, or on behalf of, a party to the proceeding or purported proceeding)

$24

Setting down and hearing fees

Reg

Action

Fee

2AA(1)(a)(i)

Setting down fee for hearing of an application or an issue or question in an application, and the party liable to pay the fee is a corporation

$2422




2AA(1)(a)(ii)

Setting down fee for hearing of an application or an issue or question in an application, and the party liable to pay the fee is not a corporation

$1211



2AA(1)(b)(i)

Setting down fee for hearing of an appeal, and the party liable to pay the fee is a corporation

$2422




2AA(1)(b)(i)

Setting down fee for hearing of an appeal, and the party liable to pay the fee is not a corporation

$1211




2A(1)(a)(i)

Hearing of a notice of motion: for each half day or part of a half day, and the party liable to pay the fee is a corporation

$483




2A(1)(a)(ii)

Hearing of a notice of motion: for each half day or part of a half day, and the party liable to pay the fee is not a corporation

$242




2A(1)(b)(i)

Hearing fee of an application under sub-s35A(5) of the Federal Court of Australia Act to review an exercise of power of the registrar: for each half day or part of a half day, and the party liable to pay the fee is a corporation

$483




2A(1)(b)(ii)

Hearing fee of an application under sub-s35A(5) of the Federal Court of Australia Act to review an exercise of power of the registrar: for each half day or part of a half day, and the party liable to pay the fee is not a corporation

$242




2A(1)(c)(i)

Hearing of an application, an issue or question in an application, or an appeal: for each day or part of a day after the first day of hearing, and the party liable to pay the fee is a corporation

$969




2A(1)(c)(ii)

Hearing of an application, an issue or question in an application, or an appeal: for each day or part of a day after the first day of hearing, and the party liable to pay the fee is not a corporation

$483

Philip Kellow
Deputy Registrar
3 June 2004


Federal Court

Certificate of compliance for affidavits – O.14 r5A and Schedule 1, Form 20A
On 23 March 2004, O.14 of the Federal Court Rules was amended by the introduction of a new r5A and changes to r6.

The new rules have been introduced to encourage legal representatives to prepare affidavits in accordance with O.14 r2, which sets out the requirements for an affidavit, such as the need for page and paragraph numbering and how annexures must be identified.

Unfortunately, notwithstanding many reminders over the years, there has been widespread non-compliance by the profession with O.14 r2. Non-compliance with sub-rls(2A), (2B) and (2C) of that rule, in particular, was apt to cause inconvenience, cost and delay in the conduct of hearings, the more so where affidavits were lengthy or numerous. Adjourning the hearing while pagination was attended to manually, was not a satisfactory solution.

Rule 5A provides that an affidavit prepared by a party’s legal representative must, when filed, be accompanied by a certificate (“a compliance certificate”) completed by the legal representative. The certificate, which must be in accordance with Form 20A in Schedule 2 to the Rules, requires the legal representative to certify that the affidavit complies with O.14 r2.

The compliance certificate may be endorsed on the affidavit, on or immediately after its last page. No doubt many solicitors will find a form of stamp convenient (the qualifications of the person before whom affidavits are sworn are frequently impressed by the use of a stamp.)

Pursuant to sub-r5A(3), an affidavit prepared by a legal representative that is not accompanied by a compliance certificate must not be accepted for filing without the leave of the Court or a registrar. In most cases, the question whether leave is to be granted will not be the subject of any formal application and will be determined without a hearing and in the absence of the other party to the proceeding on the day the affidavit is sought to be filed. This will ordinarily be attended to “at the counter” by a registrar. It is expected that leave will not be granted, except in cases where the refusal to grant leave would prejudice a party – for example by preventing the party from complying with a time limit set for the filing of an affidavit. It is expected that this exception will rarely occur because the alternative, at least in the case of pagination, will be the lodging party attending to the pagination manually in the registry.

Rule 5A does not apply to an affidavit that is not prepared by a legal representative for a party.

The new r6 provides, inter alia, that an affidavit must not be used in a proceeding without the leave of the Court if:

(a)

it has not been filed; or

(b)

it has been filed but is irregular in form; or

(c)

it has been accepted for filing notwithstanding that the legal representative who prepared it has not completed a compliance certificate.

Philip Kellow
Deputy Registrar
7 June 2004


Federal Court

Federal Court Amendment Rules 2004 (No 2)
The Federal Court Amendment Rules 2004 (No 2) (the Amendment Rules), which were published in the Commonwealth Government Gazette on 24 May 2004 as SR No 98 of 2004, commenced on 24 May 2004.

A copy of the Amendment Rules will be available on the Internet from the ScalePlus site at http://scaleplus.law.gov.au/home.htm.

The Amendment Rules amend O.62 of the Federal Court Rules by inserting a new r40B which provides for a party in a migration proceeding to submit a short form bill of costs:

  • in standard migration cases which are determined after a hearing (standard migration case being a proceeding in which there were no more than 2 directions hearings and a half day trial) — with costs to be a fixed amount of $4250 including disbursements; and
  • in migration cases which are discontinued or dismissed after preparation of the “migration court book” but before trial — with costs to a fixed amount of $1500 inclusive of disbursements.

The new r40B also provides that an application for the short form amount is optional and objections to be made and determined.

Philip Kellow
Deputy Registrar
19 May 2004

Supreme Court

Cite as: (2004) 78(7) LIJ, p. 73

Sureties and death certificates

Notice to practitioners
The purpose of this notice is to advise practitioners of recent changes to Chapter III of the Rules of the Supreme Court. See Supreme Court (Chapter III Amendment No. 8) Rules 2004. SR No 3 2/2004.

With effect from 29 April 2004 the judges of the Court have amended Chapter III relative to the requirements for surety guarantees and exhibiting of death certificates to supporting affidavits.

Rule 6 of the amending Rules substitutes a new r7.01 of the principal Rules. The new Rule gives further powers to the Court and registrar where it is proposed to grant administration in circumstances where a surety guarantee may be required. The Rule provides that the Court or registrar, in the circumstances set out in para (1) of the Rule, may require a guarantee under s57 of the Administration and Probate Act 1958 or that an application be made jointly by two or more persons or that an application be made by a trustee company. It is anticipated that this new measure will help overcome the present critically difficult task of finding guarantors.

In addition the principal Rules have been amended to revoke the requirement when filing applications to produce the “original” death certificate to the registrar for notation and return in circumstances where a copy certificate is exhibited to the plaintiffs affidavit. The amendment permits a photocopy of the death certificate certified as a true copy by the person before whom the affidavit is sworn to be exhibited to the supporting affidavit. In such cases the “original” death certificate will not have to be produced.

Michael J Halpin
Registrar of Probates
4 May 2004

Magistrates’ Court

Cite as: (2004) 78(7) LIJ, p. 73

Magistrates’ Court Act 1989

Practice Direction No 4 of 2004
The Chief Magistrate issues this Practice Note pursuant to s16A of the Magistrates’ Court Act 1989.

Practice Note 3 of 1998 is hereby revoked.

Practice Note 3 was issued in response to the decision of Cummins J. In Rushton v Brown and Whydah Solutions Pty Ltd. As a result of the decisions of Gillard J in the cases of O’Dea and Anor v Magistrates’ Court and Anor (unreported judgment delivered 20 July 1998) and Doyl and Assoc v Oronico Pty Ltd (2000) VSC 423 it has been determined that Practice Note No 3 should be revoked.

Dan Muling
Acting Chief Magistrate
1 June 2004

Signatures Guidelines

Cite as: (2004) 78(7) LIJ, p. 73

Guidelines for practitioners using electronic signatures on accounts

  • When taking instructions in any matter, ensure you have the client’s consent to the receipt of electronic accounts to ensure compliance with the Electronic Signatures Act (Vic) 2000. If you do have consent to send electronic accounts with electronic signatures, it will overcome the need to strictly comply with the requirements of signing accounts in s107 of the Legal Practice Act 1996.
  • Ensure your electronic signature is “protected” so that others cannot use it.
  • Ensure that you obtain a receipt for the transmission of the electronic accounts.
  • In the event that an electronic account is not paid or is disputed, before taking any action to recover the costs, it may be advisable to forward a hard copy of the account, duly signed, to the client to remove beyond doubt that there has been compliance with s107 of the Legal Practice Act 1996.

Kevin Power
Professional Standards General Manager

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