Cusack and Federal Court of Australia
[2001] AATA 728
•22 August 2001
DECISION AND REASONS FOR DECISION [2001] AATA 728
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/422
GENERAL ADMINISTRATIVE DIVISION )
Re PATRICK CUSACK
Applicant
And FEDERAL COURT OF AUSTRALIA
Respondent
DECISION
Tribunal Mr R G Kenny, Member
Date22 August 2001
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and in substitution it is decided that filing fees payable by the applicant be waived.
...............(Signed)..................
R G Kenny
Member
CATCHWORDS
FEDERAL COURT OF AUSTRALIA – waiver of application fee – financial hardship
Federal Court of Australia Regulations 1978 rr 1A, 2
Re Murphy and Department of Health and Aged Care [2000] AATA 351
REASONS FOR DECISION
22 August 2001 Mr R G Kenny, Member
Background
This statement of reasons relates to the hearing by the Administrative Appeals Tribunal (the Tribunal) of an application to review a decision, dated 19 April 2001, of a deputy registrar of the Federal Court of Australia (the respondent) in which it was determined that there be no waiver of the filing fee payable by Patrick Leo Cusack (the applicant) in relation to his filing of a notice of appeal in the registry of that court.
On 16 March 2001, a certain decision in a matter involving the applicant was made by the Tribunal and, on 12 April 2001, the applicant purported to lodge an appeal against that decision in the Queensland District Registry of the Federal Court of Australia. At the same time, he lodged an "Application for Fee Exemption or Waiver." This exemption application was refused and, on 16 May 2001, he lodged an application with the Tribunal for review of that decision.
In evidence before me were the T documents, and these included the Application for Review (T1), a Statement completed by the respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the Act) (T2), Statements of Financial Position completed by the applicant on 12 and 13 April 2001 (T5 and T9, respectively) and a copy of a payslip received by the applicant for the month of March 2001 (T11).
Also in evidence were supplementary documents comprising a statement from the applicant, dated 17 May 2001, which contained an updated summary of his financial position; a further statement from the applicant, dated 18 July 2001, in which he consented to the matter proceeding without a hearing; and a statement from the respondent, dated 5 July 2001, in which it was also consented that the matter be determined without a hearing.
In relation to a hearing in the absence of the parties, section 34B of the Act reads:
34B Circumstances in which hearing may be dispensed with
If:
(a) it appears to the Tribunal that the issues for determination on the review of a decision can be adequately determined in the absence of the parties; and
(b) the parties consent to the review being determined without a hearing;
the Tribunal may review the decision by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing.
At a directions hearing held on 9 August 2001, both parties confirmed that they consented to the matter proceeding without a formal hearing and, on that basis and being satisfied in accordance with the terms of section 34B of the Act that the review can be adequately determined in the absence of the parties, I considered that this was an appropriate course and proceeded, accordingly.
Legislative FrameworkFiling fees are payable in accordance with the Federal Court of Australia Regulations 1978 (the regulations). Sub-regulation 2(1) reads:
Filing fees etc
2. (1) A fee is payable for an action of the Court, or an officer of the Court, that is specified in an item in the Schedule, being, except as provided by this regulation, regulation 2AA or regulation 2A, the fee specified in column 3 of the item.
Item 3 of the Schedule to the regulations prescribes a fee of $1052 and it is not disputed that this is the relevant fee, unless waived, in this case. Provision for waiver of the fee is made in sub-regulation 2(4) which reads:
(4) A fee is not payable if:
(a) the person liable to pay the fee has been granted legal aid, under a legal aid scheme or service established under Commonwealth, State or Territory law or approved by the Attorney-General, for the proceedings for which the fee would otherwise be payable; or
(b) the person liable to pay the fee is:(i) the holder of one of the following cards issued by the Department of Social Security:
(A) a health care card;
(B) a health benefit card;
(C) a pensioner concession card;
(D) a Commonwealth seniors health card; or(ia) the holder of any other card issued by the Department of Social Security or the Department of Veterans' Affairs that certifies entitlement to Commonwealth health concessions; or
(ii) an inmate of a prison or is otherwise lawfully detained in a public institution; or
(iii) a child under the age of 18 years; or
(iv) in receipt of a youth allowance, or an austudy payment, within the meaning of the Social Security Act 1991; or
(v) in receipt of benefits under the Commonwealth student assistance scheme known as the ABSTUDY Scheme; or(c) the Registrar having regard to the income, day to day living expenses, liabilities and assets of the person liable to pay the fee, waives payment of the fee because, in his or her opinion, it would cause financial hardship to the person.
The applicant seeks to rely on the financial hardship component in paragraph 2(4)(c) of that regulation and it was under that provision that the decision of the respondent was made.
Provision is made in regulation 2B for application to the Tribunal for review of a decision made by a Registrar under paragraph 2(4)(c) of the regulations. In this case, the decision maker is a Deputy Registrar and the term Registrar is defined in regulation 1A to include a Deputy Registrar.
EvidenceThe financial circumstances of the applicant that were taken into account by the respondent were those set out in document T9, a revised version of the statement in document T5, and document T11. These provided the following evidence:
payslip for March 2001
description amount ($)
salary 4,672.92
car allowance for use of car/policy 234.25
car allowance as per vehicle policy 400.00
PAYE tax 1,136.00
net pay 4,171.17
Statement of Financial Position (T9)
description (income, property and assets) amount ($)
fortnightly salary 1,768.46
value of motor vehicle 7,500.00
deposit in Westpac account 2,000.00
value personal items 3,000.00
value of superannuation 10,000.00
description (fortnightly expenses) amount ($)
rent 380.00
loan repayments 262.00
food 300.00
clothing 50.00
travel and motor vehicle 100.00
gas/electricity 30.00
telephone 45.00
health care 30.00
total 1,197.00
The applicant also stated that he had an outstanding loan of $7,500 with CBFC, an income tax assessment liability of $28,500 and outstanding credit card liabilities of $500 and $40 to American Express and Visa, respectively. He advised that he was 57 years of age and that his wife has no independent income.
Having regard to that evidence, the respondent concluded that net fortnightly salary was $1,768.46, that there was an additional car allowance of $434.25, that day to day living expenses were $1,197.00 and that this meant that there was an excess of income over outgoing of about $571.00 per fortnight. It was also noted that the applicant was in continuing full time employment. The respondent determined that payment of the filing fee would not cause financial hardship to the applicant because of the extent that income exceeded his expenses.
The applicant provided explanation of his financial position in his letter of 17 May 2001, although he also referred to the difficulty he faced in so doing because of the position he has taken of the "value" of the Australian dollar. This is central to the matter which he has appealed to the Federal Court and is based on his view that "Australia has several versions of 'normal' currency which are not inter-convertible at face value". In his letter, he stated that this meant that "any single figure" that he gave for any of his income or expenditure items had "several different meanings, each of which must be construed as 'erroneous' and therefore misleading". The applicant provided the following information to explain his financial position:
income expenditure
per month 4,672.94 rent 380.00
less tax 1,136.00 credit card/HP/loan repayments 630.00
nett monthly 3,536.94 living expenses-food, clothing 420.00
fares, gas, electricity, phone etc 320.00
per fortnight 1,768.47 total 1,750.00
The applicant stated that the loan repayment figure of $630 was variable, that it could range from $680 to $2,660 per month and that it was calculated on the basis of an average over six months. He gave the average minimum monthly balance in his Westpac account, in the months from October 2000 until April 2001, as being $818. He stated that he and his wife faced a taxation liability of approximately $60,000 and that they had "lost" their matrimonial home in 1992 "after a business venture 'went bad'". He also stated that he owned no real estate, either alone or jointly, and that he had compulsory superannuation of $20,000 which would be payable to him on retirement.
In his letter of 18 July 2001, the applicant expressed the belief that the respondent had erred in treating his car allowance as an income amount because it was "consumed entirely by and does not fully cover ongoing lease payments on the vehicle".
Discussion of Evidence
Apart from the reference by the respondent to the car allowance received by the applicant, no challenge was made to the evidence given by the applicant about his financial position. No issue was taken with the applicant's explanations about the way in which the car allowance was used by him, about the level of monies held by him in the Westpac account or about the level of loan repayments made by him. As I understand it, the applicant's financial position is to be considered as at the time of the respondent's decision. This is reflected in the documentation provided by the applicant at that time. The documentation provided by the applicant subsequently did not seek to alter that position but, rather, to explain it.
On the basis of the evidence before me, I am reasonably satisfied that the net fortnightly income of the applicant was $1,768.46 and that his fortnightly outgoings on day to day living expenses, including loan and credit card repayments, was $1,750.00. I am also reasonably satisfied that the only liquid asset available to the applicant is the amount standing to his credit in the Westpac account. This varies from month to month but the average minimum balance, taken over seven months, of $818 should be adopted. The unchallenged evidence also is that the applicant is subject to substantial indebtedness.
Decision
The regulations do not define the term financial hardship. Clearly, it is not an absolute concept but a relative one which will vary from time to time and from individual to individual. It may also be the case that there are degrees of hardship. In that regard, I note the following reference to the term by O'Connor J (President) in Re Murphy and Department of Health and Aged Care [2000] AATA 351 (AAT – 17 April 2000):
"….even if one accepted that there are degrees of hardship, in order to conclude that there is an individual case of financial hardship, a decision maker must conclude that the effect on the claimant is so severe at the time of making the determination that it would amount to hardship."
In this case, in assessing the applicant's financial position, consideration must be given to the level of his income which is almost matched by the level of his day to day living expenses and outgoings on liabilities. There is no evidence before me to point to the unreasonableness of any of those expenses. I also consider that, in assessing hardship in this case, regard must be had to the amount of the fee in relation to which waiver is sought. This is significantly higher than the average asset balance available to the applicant. I am reasonably satisfied that there would be hardship if the applicant was required to pay the filing fee in issue, particularly having regard to the overall level of his indebtedness.
Having considered all of the material available to me and for the reasons outlined, I am reasonably satisfied that the filing fee should be waived in accordance with paragraph 2(4)(c) of the regulations.
I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member
Signed: .....................................................................................
B. Hitchcock,
AssociateDate of Decision 22 August 2001
Hearing on the papers 22 August 2001
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