Applicant At 032022 v The Registrar, Act Civil and Administrative Tribunal (Administrative Review) - [2022] ACAT 16

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

APPLICANT AT 032022 v THE REGISTRAR, ACT CIVIL AND ADMINISTRATIVE TRIBUNAL (Administrative Review) [2022] ACAT 16

AT 3/2022

Catchwords: ADMINISTRATIVE REVIEW – application for waiver of tribunal filing fee – delegation of registrar’s function to consider fee waivers – fee payable a determination of the Minister – whether fee would impose hardship upon the applicant – meaning of ‘hardship’ – applicant bears the onus of establishing hardship – where supporting or substantiating evidence required – hardship must be established for a relevant period – where assertions and speculation insufficient – original decision confirmed

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 68, 113
Court Procedures Act 2004 ss 13, 15, 18
Landlord and Tenant (Amendment) Act 1948 (NSW) s 70

Subordinate

Legislation cited: Court Procedures Act (Fees) Determination 2021

Cases cited:Drake v Minister of Immigration and Ethnic Affairs (1979) 24 ALR 577
FG O’Brien Ltd v Elliott [1965] NSWR 1473
Minister for Immigration & Ethnic Affairs v Pochi [1980] FCA 85
Re Kabalan [1993] FCA 76
Rukat v Rukat [1975] Fam 63

Tribunal:Presidential Member H Robinson

Date of Orders:  8 February 2022
Date of Reasons for Decision:      25 February 2022
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AT 3/2022

BETWEEN:

APPLICANT AT 032022
Applicant

AND:

THE REGISTRAR, ACT CIVIL AND
ADMINISTRATIVE TRIBUNAL
Respondent

TRIBUNAL:Presidential Member H Robinson

DATE:8 February 2022

ORDER

The Tribunal orders that:

The decision under review is confirmed.

……………Signed………………
Presidential Member H Robinson

REASONS FOR DECISION

By way of an application dated 10 January 2022, the applicant sought review of a decision of a Deputy Legal Registrar to refuse his application for a waiver of the tribunal’s filing fee.

Background

By way of an application dated 4 January 2022 the applicant sought a merits review of a land tax assessment of a property he owns in the suburb of Turner (the property). The filing fee for such an application is $372.[1] The applicant sought a waiver of that fee by way of a ‘request about the payment of fees’ dated 30 December 2021 (the fee request).
[1] See: Court Procedures Act (Fees) Determination 2021
The fee request was considered by a deputy legal registrar of the tribunal. By way of a decision dated 7 January 2022 the deputy legal registrar denied the application, stating that she was not satisfied that the applicant would suffer hardship if he was required to pay the fee (the refusal decision).

Legal framework

Section 13(1) of the Court Procedures Act 2004 (CP Act) provides that that the Minister may determine fees for any proceedings in the ACAT. The relevant instrument determining fees for the period 1 July 2021 to date is the Court Procedures Act (Fees) Determination 2021.[2]
[2] Section 6 of this determination provides that a person is exempt from paying a fee where the holder has certain government health care or pension cards. The applicant has not indicated that he holds such a card.
Section 15 of the CP Act deals the “remission, refund, deferral, waiver and exemption of fees”. Of the grounds set out in the section, the only one relevant to the applicant is that of 15(2)(b):
[I]f the registrar of the court or ACAT waives payment by a person of the fee completely or partly because the registrar considers that payment of the fee would impose hardship on the person—to the extent of the waiver…

The original decision

In the fee request, the applicant set out his personal circumstances as follows:
We are retirees. Paying the fee would cause us hardship. [The property] is our only home. We are struggling to put food on our table. Our house is in terrible condition. We do not have money to repair the hot water pipe leaking and consequent massive water damage. Our house is not fit for occupation without repairs of the hot water pipe leaking and consequent massive water damage.[3]
[3] ‘Request about payment of fees’ dated 30 December 2021
The request form prompts an applicant to set out details of their financial circumstances. The information supplied by the applicant in this section was as follows:
$1,200 in superannuation; and
$600 in rent received from a property in Turner.
The applicant listed his expenses as:
$430 food/clothing;
$800 rent;
$70 utilities;
$50 transport costs; and
$650 expenditure including repair, maintenance, insurance etc.
His wife was listed as his dependent.
He did not supply any supporting documentation. He did not list any assets, and in particular did not list the property in Turner as asset. However, in making her decision the deputy legal registrar took into account that the applicant owned the property in Turner, as he had listed it as his home.
On the basis of the information supplied, the deputy legal registrar was not satisfied that the fee should be waived.
A decision of the registrar to refuse to waive a fee completely or partly is a reviewable decision.[4]

The application for review

[4] CP Act Section 18, Table 18, Item 4

The applicant lodged his application for review on 10 January 2022. The matter was listed for hearing on 21 January 2022. The applicant did not file any further documentation prior to the hearing.
After hearing from the applicant, I made directions that he file, by 7 February 2022:
a statutory declaration setting out his income and particulars of expenses and any assets;
any supporting evidence; and
confirmation that [his wife] has no income.
The applicant filed a bundle of documentation on 31 January 2022. That material included:
(a)a statement as to his superannuation and rental income, consistent with the above;
(b)a statement as to expenses for “repair, maintenance, insurance etc on [the property] at $700 per week”; and
(c)tables breaking down the costs associated with the property, as well as supporting documentation.
The matter was listed for further hearing on 8 February 2022 so that the applicant could make oral submissions if he wished. The applicant did not attend this hearing. I therefore decided the application on the material filed with the tribunal.
I dismissed the application, confirmed the registrar’s decision, and advised that I would publish reasons in due course. These are those reasons.

Consideration

When conducting a review of an administrative decision, the tribunal ‘stands in the shoes of the decision maker’.[5] This means that the Tribunal has all the powers of the original decision maker (to the extent that those powers are related to the making of the decision under review) and is also subject to the same limitations.[6]
[5] See Minister for Immigration & Ethnic Affairs v Pochi [1980] FCA 85; (1980) 44 FLR 41, Smithers J at 46; Drake v Minister of Immigration and Ethnic Affairs (1979) 24 ALR 577, 589
[6] ACT Civil and Administrative Tribunal Act section 68
Section 13 of the CP Act permits the Minister to determine fees for proceedings in the ACAT. The Minister has done so. The starting point is that an applicant must pay the fee. Section 15(2)(b) provides that the Registrar[7] may waive that fee, but only where the registrar “considers that payment of the fee would impose a hardship on the person”. This is a discretionary decision, but it requires that the registrar, their delegate (or, on review, the tribunal) ‘consider’ that the payment ‘would’ cause the applicant hardship.
[7] This power may be delegated to a deputy registrar pursuant to section 113 of the ACAT Act.
Consequently, the question for the tribunal is whether the payment of the fee ‘would’ cause the applicant ‘hardship’.
The use of the word ‘would’ requires evidence that payment of the fee will cause hardship, not speculation that it might.
The term ‘hardship’ is not defined in the CP Act or the determination, and the explanatory statement to the determination does not provide any further guidance. Likely, the use of the term in the instrument is not intended to import a special legal meaning. As to what the terms means in the context of the waiver of a fee, Gummow J (as he them was) observed in Re Kabalan,[8] that:
Any condition which presses with particular asperity upon a person may be described as a hardship. The sense is conveyed by the definition in the Oxford English Dictionary, 2nd ed. which includes “hardness of fate or circumstance”.
[8] Re Kabalan [1993] FCA 76 at [11]
In Rukat v Rukat,[9] Lawton LJ said:
The word “hardship” is not a word of art. It follows that it must be construed by the courts in a common-sense way, and the meaning which is put upon the word “hardship” should be such as would meet with the approval of ordinary sensible people. In my judgment, the ordinary sensible man would take the view that there are two aspects of “hardship” – that which the sufferer from the hardship thinks he is suffering and that which a reasonable bystander with knowledge of all the facts would think he was suffering.
In a case dealing with a provision in section 70 of the Landlord and Tenant (Amendment) Act 1948 (NSW), FG O’Brien Ltd v Elliott,[10] Asprey J said that in the context in which that term appeared in the landlord and tenant legislation, hardship would comprehend “any matter of appreciable detriment, whether financial, personal or otherwise” and (unsurprisingly) that “each case must depend upon its own particular facts.”
[9] [1975] Fam 63, 73
[10] [1965] NSWR 1473 at [91]
The applicant claims the fee would cause him financial detriment.
The majority of the documents before the Tribunal relate to the costs associated with maintaining the property. The documents cover a period of 117 weeks, from 1 April 2019 to 30 June 2021 (the identified period). They demonstrate that for the identified period, the applicant expended $81,868.48 on the property, including repairs, rates and the management fee. He has calculated this to be $700 a week over the relevant period. Over that same period he earned, on his calculations, $68,601.00 in rent from the property. The evidence suggests that, at least in relation to the property, his expenses exceeded his income and the investment returned a loss.
The information is not, of itself, particularly persuasive in terms of entitlement to waiver. It relates to the identified period that ended some six months ago, while the question is whether the payment of the fee would cause hardship to the applicant now or in the future – and the answer to that question requires consideration of the applicant’s current and projected financial position. It also relates solely to the return on a property that was, at the time, used as an investment property (notwithstanding it was the applicant’s only home). It is not clear whether and to what extent the expenses in relation to the property are continuing.
The applicant explained at the hearing that the property is his sole asset, and that for reasons relating to COVID-19 and the current condition of the property, he is living elsewhere and paying rent. I accept that the applicant has incurred considerable expenses in relation to the property but that does not establish that his broader financial circumstances are such that the payment of the fee would incur a hardship.
Turning to those broader financial circumstances, the information before this Tribunal as to those circumstances is the same as that before the deputy legal registrar, save the addition of the statement from the applicant’s partner, which confirms that she has no income of her own. I take into account that he is solely responsible for maintaining his wife.
The applicant chooses to receive $1,200 a fortnight from his superannuation, in addition to the rental return from the property. His superannuation salary is clearly a modest return, but it is not clear what form of superannuation this is, and whether it is open to him to receive a higher benefit or to draw down more of the capital.
Evening setting the above aside, there is another issue. Despite being directed to provide evidence of his assets, the applicant has not provided any such information. He certainly owns a property in Turner. There could be little doubt that the property has a substantial value. There is no evidence before me that suggests it is encumbered. While I can appreciate that the property has, and may still be, costing the applicant money to repair and maintain, and as a consequence he may be cash poor, that he owns such an assets puts him in markedly different financial situation to the usual person for whom fees are waived – most of whom have minimal assets and means. On the evidence before me, by reason of owning property, there is no reason why the applicant would not be able secure the application fee, even if he had to, for example, borrow or save the modest sum needed to pay the application fee.
On the evidence, I cannot be satisfied that payment of the relatively modest application fee charged by the tribunal would cause the applicant hardship.

Conclusion

The starting point is that an applicant must pay the prescribed fee. That fee may be waived in limited circumstances, including where the Registrar is satisfied that payment of the fee would cause hardship to the applicant. The onus is on the applicant to satisfy the Registrar of such hardship. If the applicant is claiming financial hardship, then it is incumbent upon them to provide relevant financial documentation that would allow the Registrar to conclude that payment of the fee would cause the applicant an appreciable detriment. The evidence before the deputy legal registrar was insufficient to meet that burden, and so is the evidence before me.
The deputy legal registrar’s decision is confirmed. The application is dismissed.

………………………………..

Presidential Member H Robinson

Date(s) of hearing:	21 January 2022 & 8 February 2022
Applicant:	In person
Respondent:	N/A