Fox and High Court of Australia

[2005] AATA 673

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 673

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2005/139

GENERAL ADMINISTRATIVE  DIVISION

Re:       JEFFREY FOX

Applicant

And:     HIGH COURT OF AUSTRALIA

Respondent

DECISION

Tribunal:       Regina Perton, Member

Date:14 July 2005

Place:Melbourne

Decision:The Tribunal sets aside the decision under review and in substitution decides that the fees payable by the applicant in respect of his application for special leave to appeal to the High Court of Australia be waived.

(sgd) Regina Perton

Member

HIGH COURT OF AUSTRALIA ‑ waiver of application fee – financial hardship – decision set aside

Administrative Appeals Tribunal Act 1975 ss 34B, 37

Social Security Act 1991

High Court of Australia (Fees) Regulations 2004 Reg 9, 10

REASONS FOR DECISION

14 July 2005  Regina Perton, Member

1.      On 21 February 2005, Jeffrey Fox (the applicant) applied to the Tribunal for review of a decision by the Deputy Registrar of the High Court of Australia (the respondent) dated 14 January 2005 to refuse a fee waiver in relation to an application for special leave to appeal. 

2. At the request of the parties, the Tribunal has not conducted a hearing and has determined this matter in their absence, pursuant to s 34J of the Administrative Appeals Tribunal Act 1975 (the AAT Act).

3. The Tribunal received into evidence the documents lodged under s 37 of the AAT Act as well as further documentary evidence provided by the applicant after lodgement of his application to the Tribunal.

background

4.      The applicant has been engaged for some years in litigation that initially arose due to a faulty wall on his property.  On 26 November 2004, the Court of Appeal of the Supreme Court of Victoria dismissed an application for leave to appeal following the applicant’s unsuccessful outcome in the Supreme Court in an action against the Secretary of the Victorian Department of Justice. 

5.      On 11 January 2005, the applicant applied for special leave to appeal to the respondent.  On the same day, he applied for waiver of the filing fee of $1,211.00 on the basis that the payment of the fee would cause him financial hardship.  On 14 January 2005, a delegated officer of the respondent refused the application for the fee waiver on the basis that he was not satisfied that payment of the filing fee would cause the applicant financial hardship.  He indicated that his decision was based on the level of equity that the applicant had in his home.   

6.      On 21 February 2005, the applicant lodged an application for review with the Tribunal and was granted waiver of the Tribunal’s application fee.  On 7 March 2005, the Tribunal, differently constituted, granted him an extension of time for lodgement of his application as it was lodged 6 days late.

7.      The issue for the Tribunal is whether the applicant’s fees in relation to his application to the respondent on 11 January 2005 should be waived.

EVIDENCE AND SUBMISSIONS

8.      On 11 January 2005, the applicant filed a form entitled Application for Waiver of Filing Fees and Hearing Fees with the Melbourne registry of the respondent.   The form instructs the applicant to tick an appropriate box corresponding to the ground on which fee waiver is sought.  The form provides seven alternatives, which are based on the High Court of Australia (Fees Regulations) 2004 (the Regulations) and the applicant marked the box indicating that payment of the fee would cause him financial hardship.   

9.      An applicant seeking fee waiver on the basis of financial hardship is required to complete a Statement of Affairs.  The applicant indicated in that form that he was  not employed but has a business which is on hold but has never made a profit. He stated that he receives no income, does not receive a pension and has 4 dependent children, then aged 14, 9, 8 and 5.   His wife was living away from the marital home and was paid $600 per week as an aged care worker.  The applicant estimated that his home in Macedon was valued at $150,000.  His other assets were an unregistered 23 year old motor vehicle, household effects, some stock and office equipment from the business and two bank accounts, each holding less than $10.  The applicant stated that the total value of his assets was $155,626.  His liabilities included credit card debts on cards issued by 3 different banks of $20,369, $8,444 and $4,300. The applicant also has outstanding court costs and fines in various jurisdictions in excess of $13,400 plus interest.  He stated that his wife’s wages and family allowance payments covers the cost of credit card payments, her rent of $759 per month, mortgage repayments on the family home, utility and other expenses in her and the family’s places of residence as well as the living costs of the two adults and four children.  The applicant supplied receipts verifying his wife’s rental cost, fortnightly pay and his wife’s two latest taxation returns with taxable incomes of less than $18,500 in each year.  

10.     An undated hand‑written file note by the delegated officer indicates that he had a conversation with the applicant after lodgement of the request for fee waiver.  The officer notes that he discussed with the applicant that with a mortgage of $25,000 on his property, the applicant has equity of $125,000 and that he did not consider that the applicant was in financial need.  The officer foreshadowed that he would therefore refuse the application for fee waiver.  On 14 January 2005, the officer wrote to the applicant informing him that his application for a fee waiver had been refused.  He cited the equity the applicant had in the property and indicated that taking into account his listed liabilities of approximately $46,000, the applicant still had an asset worth approximately $78,000.

11.     On 21 February 2005, the applicant applied to the Tribunal for review of the refusal of the fee waiver and for an extension of time for lodgement.  In a submission accompanying the application, the applicant stated that his fees had been waived on 12 previous occasions up to 24 December 2004 including by the Federal Magistrates Court, the Supreme Court of Victoria and the Court of Appeal.  The applicant stated that the officer of the respondent had suggested he arrange for a loan to cover the cost of the fee.  However, the applicant explained that lenders would not give him a loan as he has no income and that in the last two years his wife was only able to meet the interest payments of the home loan and unable to pay off any of the principal.  He stated that he cannot sell off the business stock as he cannot afford the insurance charges to cover any stock sold.  The applicant provided a copy of a document dated 14 February 2005 from the Australian Electoral Commission which indicated that the applicant’s wife considered her permanent address to be the home she rented near her work.

12.     On 22 February 2005, the Tribunal’s District Registrar prepared a file note following a conversation with the applicant.  The note states, amongst other things, that the applicant’s business is dormant, that the applicant is the primary carer of his four children while his wife works, that his wife maintains a separate home near her work as she does not drive, that he is not eligible for a carer payment and that his wife has been issued with a Centrelink Health Care Card on which he is listed as a dependant.  The District Registrar waived the application fee to the Tribunal on the basis of financial hardship as he considered it unrealistic to expect the applicant to raise a loan on his home when there was no possibility of servicing the loan.

13.     On 17 March 2005, the applicant informed the Tribunal that he wished to have the matter dealt with on the papers.  He provided an affidavit dated 14 March 2005 in which he outlined his dealings with registry staff of the respondent between 11 March 2005 and 14 March 2005 and stated that he had been informed that holders of a Health Care Card, Pensioner Concession Card or other prescribed card are not required to provide any information about their financial position, and that the respondent relies on the assessment by Centrelink.  He stated that his wife has a Health Care Card on which he and his four children are listed as dependants based on their combined income of her wages and the family assistance payments they received.  He stated that Centrelink had advised him that either he or his wife could have been listed as the recipient of the family assistance payments, and had he been listed as the primary holder of the Health Care Card rather than his wife, he would automatically have been eligible in his own right for fee waiver. 

14.     The applicant also stated that the application for fee waiver was based on an income of under $31,775 and that the value of the family home was not taken into account in determining eligibility for a Health Care Card.  He stated that had his wife been the person applying to the respondent for fee waiver, it would have been granted without any questions asked about income or assets.  The applicant stated that he had borrowed the fee of $1,211 from a friend because of the refusal of the waiver.  The applicant supplied a copy of his wife’s Health Care Card as well as other documents concerning his dealings with the Victorian Department of Human Services over recent months about issues relating to his children and details of the decisions of various courts that had led to his seeking leave to appeal to the respondent.

15.     On 13 April 2005, the respondent provided a further submission in which it was pointed out that the regulations cited by the applicant had been repealed and replaced by the Regulations that commenced on 1 January 2005.  The respondent stated that:

In the context of Mr Fox’s affidavit, I draw your attention to Regulation 9 which lists categories of persons who are automatically exempt from payment of fees.  As you will see from the Regulation, one of the categories of exemption relates to a person who is the holder of a concession card.  However, you will also see that the Regulation limits the exemption to the holder of a concession card and specifically excludes a dependant of the holder of the card.  Accordingly, as Mrs Fox is the holder of the concession card and Mr Fox is listed as a dependant, he was not eligible for exemption on this basis.

It was for this reason that Mr Fox’s application for waiver of fees on the grounds of financial hardship was considered pursuant to Regulation 10…

16.     On 26 April 2005, the applicant provided the Tribunal with a copy of the Health Care Card he now holds in his own name with his wife and children as dependants.  He also provided a statement in which he described other stresses with which he had to deal with over recent months.

17.     On 26 May 2005, the applicant provided a response to the respondent’s submissions of 4 April 2005 and 13 April 2005.  He stated that Regulation 10 was anomalous as a person who lived in a house in Sydney worth more that $500,000 would qualify for a Health Care Card and receive an exemption from fees but that someone in his situation, where he or his wife could have been listed as the Health Care Card holder, did not qualify for the exemption.  The applicant provided copies of his appeal documents, bank statements from 1 January 2005 which showed a minimal balance, except for the amount he borrowed for the fee moving in and out, and other documents relating to his finances prepared during April and May 2005.

CONSIDERATION OF THE ISSUES

18.     The Regulations, which are pertinent to this application, came into force on 1 January 2005.  Regulations 9 and 10 provide for waiver of fees in certain circumstances:

9Persons exempt from payment of fees

(1)  A person is exempt from payment of a fee specified in Part 1 or 3 of Schedule 1 if:

(a)the person 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 proceeding for which the fee would otherwise be payable; or

(b)the person is:

(i)the holder of a concession card; or

(ii)an inmate of a prison or otherwise lawfully held in a public institution; or

(iii)a child under the age of 18; or

(iv)in receipt of 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.

(2)  In this regulation:

concession card means:

(a)       any of the following cards issued by Centrelink:

(i)        a health care card;

(ii)       a pensioner concession card;

(iii)       a seniors health card; or

(b)any other card issued by Centrelink or the Department of Veterans’ Affairs that certifies entitlement to Commonwealth health concessions.

holder, of a concession card, does not include a dependant of the holder of the card.

10  Waiver of fee

If, having regard to the income, day-to-day living expenses, liabilities and assets of a person liable to pay a fee specified in Part 1 or 3 of Schedule 1, a Registrar is of the opinion that payment of the fee would cause financial hardship to the person, the Registrar may waive payment of the fee.

19.     At the date of application, the applicant was not the holder of any concession card in his own name nor the recipient of any of the payments cited nor did he meet any of the other categories for waiver under regulation 9 of the Regulations.  The Tribunal therefore finds that he did not meet any of the prescribed grounds for waiver pursuant to that regulation. 

20.     Regulation 10 of the Regulations allows for waiver in cases of financial hardship, taking into account the income, day‑to‑day living expenses, liabilities and assets of a person.  In considering the applicant’s financial situation, the Tribunal accepts that the applicant’s sole sources of income are his wife’s wages and the family assistance payments he and his wife receive in relation to their four dependent children.  The applicant’s wife earns a relatively low income as an aged care worker as is indicated in the two taxation returns submitted to the Tribunal and the copy of her payslip.  She and the applicant qualified for a Health Care Card on the basis of their combined income and until relatively recently, the card was in her name with the applicant as a dependant.  The Tribunal notes that the applicant is now the holder of a Health Care Card in his name which was issued by Centrelink on the basis of financial circumstances that have remained substantially the same since January 2005.  The combined income of the applicant and his wife has to meet the family’s day‑to‑day living expenses as well as rent for the applicant’s wife who lives near her work as she does not drive, the interest repayments on the mortgage and other financial commitments. 

21.     In terms of liabilities, the applicant owes substantial amounts on credit cards and has significant court costs outstanding, as well as the mortgage payments.  While the applicant has equity in the family home, the Tribunal does not believe that it would be likely or practical for the applicant and his wife to obtain and/or service an increased loan given their level of debt, their expenses and their low income.  In these circumstances, the Tribunal finds that the payment of the fee would cause financial hardship to the applicant and that it should be waived. 

DECISION

22.     The Tribunal sets aside the decision under review and in substitution decides that the fees payable by the applicant in respect of his application for special leave to appeal to the High Court of Australia be waived.

I certify that the twenty‑two [22] preceding paragraphs are a true copy of the reasons for the decision of:

Regina Perton, Member

(sgd)       Olympia Sarrinikolaou

Clerk

Date of hearing:  Hearing on the papers

Date of decision:  14 July 2005
Advocate for the applicant:          Self-represented
Advocate for the respondent:       Mr C.M. Doogan, High Court of Australia