Dedes and Commissioner of Taxation

[2008] AATA 331

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 331

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/0139

TAXATION APPEALS DIVISION		)
Re		JOHN DEDES

Applicant

And COMMISSIONER OF TAXATION

Respondent

DECISION

Tribunal Senior Member L Hastwell

Date21 April 2008

PlaceAdelaide

Decision The Tribunal extends the time for the applicant to lodge his application for review of the decision of 12 October 2007, along with the prescribed filing fee, for a further 28 days.

..............................................

L HASTWELL
  (Senior Member)

CATCHWORDS

PRACTICE AND PROCEDURE – request for waiver of filing fee – financial hardship – will not suffer an appreciable detriment – inconvenience does not amount to hardship – decision affirmed

Higher Education Support Act 2003
Student Assistance Act 1973

Social Security Act 1991

Re Van De Wiel and Civil Aviation Safety Authority (2006) 93 ALD 163

Re WAJ and Commonwealth Ombudsman (No 2) (1999) 53 ALD 700

REASONS FOR DECISION

21 April 2008   Senior Member L Hastwell   

1.      John Dedes (the applicant) wants to lodge an application for review with the Administrative Appeals Tribunal (the AAT) with respect to a decision made by a delegate of the Commissioner of Taxation on 12 October 2007.

2.      There is a filing fee payable to this Tribunal with respect to such an application for review. 

3.      He has asked this Tribunal to waive the filing fee with respect to his application for review.

4.      A District Registrar of this Tribunal has declined to waive the filing fee and he seeks review of the District Registrar's decision to a Member of the Tribunal.

5.      The decision for which review is sought is a decision under the Higher Education Support Act 2003, the Student Assistance Act 1973 and the Social Security Act 1991.

6. Regulation 19 of the Administrative Appeals Tribunal Regulations (the Regulations) provides for the payment of a filing fee for an application for review to the AAT in certain instances.

7.       In this case a filing fee is payable unless the applicant can establish that he comes within one of the exceptions set out in the Regulations.

8.      My power to review the District Registrar's decision arises under Regulation 20 of the Regulations.

9.      Paragraph 19 of the Regulations sets out certain exceptions to the requirement that a fee must be paid.

10.     The basis on which the applicant seeks exemption from the payment of the fee is that he and his wife suffer financial hardship and are not in a position to pay that fee.

11.     Regulation 19(6)(c) is the applicable provision in this case.  It provides as follows:

“19 Prescribed fees — general

…

(6)      An application fee is not payable if:

…

(c)the Registrar, a District Registrar or a Deputy 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.”

12.     In considering this matter I have had regard to all the material provided to the Tribunal by the applicant.  The following material is before me:

·Request to Waive Application Fee form and attached documents dated 10 January 2008;

·bundle of emails between the applicant and District Registrar Cashen;

·letter from the AAT to the applicant dated 15 February 2008 annotated by the applicant;

·a document setting out the applicant’s household expenditure;

·a pay slip of the applicant;

·taxation assessment for the applicant and his wife for the year ending 30 June 2007 and amended assessments;

·a copy of the applicant’s wife's pension card;

·a letter from Mutual Community with respect to benefits paid on his wife's behalf in 2007;

·a letter from Centrelink dated 13 November 2007 with respect to an application by the applicant to become a part-time carer for his wife while working full-time;

·letter from the applicant to Centrelink dated 3 November 2007;

·correspondence between the applicant and the AAT; and

·letter from Centrelink to the applicant's wife dated 4 October 2007.

consideration

13.     The applicant argues that he and his wife are in financial hardship such that he should not be required to pay the filing fee under the Regulations.

14.     The applicant’s taxable income in 2007 was $48,345.  His pay slip indicates current earnings of $52,727.

15.     His wife is on a part Disability Pension.  She has a pension card.  Her taxable income for the 2007 financial year was $2,548.

16.     The applicant resides in a freehold home registered in his wife's name.  He has no dependent children.

17.     The applicant's statement of expenditure includes discretionary expenditures such as expenditure on entertainment, on pets and on what is referred to as “miscellaneous expenses”.  It also shows quite high payments on items such as “unexpected household repairs/maintenance”, “medical/dental” and “work related expenses”.

18.     Financial hardship has been considered in a number of previous cases by this Tribunal and by other Courts.

19.     In the recent case of Re Van De Wiel and Civil Aviation Safety Authority (2006) 93 ALD 163, Deputy President Forgie reviewed the authorities in the context of the use of the expression “financial hardship” in the Freedom of Information Act 1982 (the FOI Act). She noted that the expression is to be construed differently from serious or severe financial hardship. She concluded that the test of hardship is an objective test and is not based on the applicant's view of his situation.

20.     Deputy President Forgie referred to a review of the authorities that have been carried out in the matter of Re WAJ and Commonwealth Ombudsman (No 2)(1999) 53 ALD 700. In that case, Senior Member Hotop considered the meaning of “financial hardship” and he commented as follows:

“’21. The term ‘hardship’ is defined in The Macquarie Dictionary as follows:

‘1. a condition that bears hard upon one; severe toil, trial, oppression, or need. 2. an instance of this, something hard to bear."

In The New Shorter Oxford English Dictionary the definition of "hardship" is as follows:

‘1 The quality of being hard to bear; painful difficulty. 2 Hardness of fate or circumstance; severe suffering or privation. Also, an instance of this. ...’

In Re Kabalan [1993] FCA 76; (1993) 113 ALR 330 the Federal Court of Australia (Gummow J) said (at 332):

‘Any condition which presses with particular asperity upon a person may be described as a hardship.’

Similarly, in Re Hounslow (above) the Tribunal, in the context of s.66(2)(a) of the FOI Act, said (at N 367):

‘ "Hardship" is a strong word and in our view severe circumstances would need to be demonstrated before it became applicable.’

In Re Paterson (No 2) (above) the Tribunal, again in the context of s.66(2)(a) of the FOI Act, said (at 238):

‘... "financial hardship" means hardship caused to the applicant by reason of the financial burden of being obliged to meet the costs of the application from its own resources. ... It is not enough ... for the applicant to assert that if it is obliged to meet its own costs, it will deplete the funds otherwise available to it to pursue its objects. Every successful applicant, no matter how wealthy, would suffer financial hardship on that basis.’

Similarly, in Re Bailey and Commonwealth Tertiary Education Commission (1986) 12 ALD 165 the Tribunal, in the context of the discretionary power to remit a charge imposed in respect of a request for, or the provision of, access to a document under the FOI Act (see, now, s.29(5)(a) of the FOI Act), said (at 167):

‘... financial hardship surely amounts to more than that a person, irrespective of his financial situation, has to meet a charge from his own resources.’

22. In having regard to the ‘financial hardship’ factor prescribed by s. 66(2)(a) of the FOI Act, account must be taken of both the amount of the costs incurred by the applicant and the applicant’s financial circumstances. ..."

21.      The applicant’s pay slip shows a fortnightly net income of $1,317 plus his wife’s income from a pension is around $50 per fortnight.  His pay slip also shows a salary sacrifice to superannuation of approximately $100 per fortnight.  It is not clear whether that contribution is a compulsory requirement of his employment.  His statement of outgoings shows their joint outgoings as being $1,700 per fortnight, demonstrating a short fall between outgoings and income.

22.     No bank statements or overall statement of assets and liabilities have been provided.  No documents have been provided to support high outgoings, for instance an outgoing of $10,000 per year claimed for house repairs and council rates (the home is freehold), a sum of $160 per fortnight claimed  for medical gaps etc. (the applicant has private health cover).

23.     Based on the evidence provided, the Tribunal is satisfied that the applicant has sufficient discretionary income to spend funds on entertainment, on private health cover and on owning and running a vehicle.  He and his wife are not suffering any appreciable financial hardship in their lifestyle at present.  He has some flexibility in his financial arrangements.  He and his wife are debt free.  He may be inconvenienced by paying a filing fee, but he is certainly not subject to current financial hardship, nor will payment of the fee cause financial hardship.

24.     To use the test applied by Deputy President Forgie in Re Van De Wiel’s case, will payment of the charge “… lead to [the applicant] suffering an appreciable detriment”?

25.     The Tribunal is satisfied that the applicant may suffer temporary inconvenience in having to pay the filing fee.  However, it is inconvenience at the best.  He will not suffer any appreciable detriment from paying the fee and may need to cut down on some other non essential items of expenditure for a period to cover the cost of the fee.

26.     In the circumstances the Tribunal affirms the decision under review.

27.     The Tribunal extends the time for the applicant to lodge his application for review of the decision of 12 October 2007, along with the prescribed filing fee, for a further 28 days.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell

Signed:         .....................................................................................
  Associate

Date of Hearing  On papers
Date of Decision  21 April 2008