Keller and Federal Court of Australia

[2002] AATA 1266

CATCHWORDS – JURISDICTION – security for costs payment – refusal to accept an application for exemption/waiver of costs payment – whether Tribunal has jurisdiction to review such a decision of the Deputy District Registrar of the Federal Court – Tribunal has no jurisdiction.

Federal Court Rules Order 62 Rule 46
Administrative Appeals Tribunal Act 1975 ss. 3 and 25
Federal Court of Australia Regulations rr. 2, 2A and  2AA
Taxation Administration Act 1953

DECISION AND REASONS FOR DECISION [2002] AATA 1266

ADMINISTRATIVE APPEALS TRIBUNAL     )          
  )          V2002/929
GENERAL ADMINISTRATIVE DIVISION     )          

ReLECH KELLER

Applicant

AndFEDERAL COURT OF AUSTRALIA

Respondent

DECISION

Tribunal:                   Miss S A Forgie (Deputy President)
Date:  9 December, 2002
Place:  Melbourne

Decision:The Tribunal does not have jurisdiction to review the decision of the Deputy District Registrar to refuse to accept from the applicant an application for exemption from payment, or waiver, of an amount of $750 payable as security for costs on each of two objections lodge under Order 62 Rule 46(3)(d).

S A FORGIE
  Deputy President

REASONS FOR DECISION

On 29 August, 2002, the applicant, Mr Lech Keller, applied for review of a decision of a Deputy District Registrar of the Federal Court of Australia ("the Federal Court").  In her decision, the Deputy District Registrar refused to accept from Mr Keller an application for exemption from payment, or waiver, of the amount of $750 payable as security for costs on each of two objections.  Mr Keller had lodged the objections with the application for exemption pursuant to Order 62 Rule 46(3)(d) of the Federal Court Rules. 

1. In a letter dated 30 August, 2002 addressed to Mr Keller, the Tribunal asked him to provide all relevant information enabling it to make a proper assessment of whether it may review the decision.  In an E-mail dated 18 September, 2002, Mr Keller advised the Tribunal that he was seeking legal advice and sought an extension of the time in which he was required to reply to the letter of 30 August, 2002.  In the meantime, he made the following points in support of his contention that the Tribunal has jurisdiction to hear his application:

"1.     It was a purely administrative decision, so there should be a way for an independent, judicial review of this decision.  The AAT is the natural place to start such a review, as it purpose is to independently review administrative decisions made on the Federal level.

2.If I were denied an opportunity for a judicial review, it would mean, that I was denied natural justice.

3.Further more: it would create a dangerous precedent, so more and more administrative decisions would be final and not revisable, which would in turn create solid foundation for an, oppressive, totalitarian and semi-fascist police state in Australia.

4.My human rights would be breached by denying me an opportunity to appeal for an independent review of a purely administrative decision.

5.I could also argue, that I was unlawfully discriminated by the AAT because of my ethnicity and disability.

6.Finally, there is nothing in the AAT Act 1975 which says, that a decision of a registrar of Federal Court cannot be reviewed by the AAT.  There is no list of decisions, which are excluded from an independent judicial review.  Further more: even if such a list existed, it could be challenged that it is unconstitutional, as it would deny a citizen a right for an independent, judicial review of an administrative decision.  It would clearly unconstitutional, as some decision would be de facto above the law, which would shake and even seriously damage the foundations of Australian democracy."

1. On 20 September, 2002, the Tribunal received a hard copy of the letter from Mr Keller together with a document headed "Statement of Facts".  That statement is concerned, in the main, with Mr Keller's allegation that he was discriminated against by the Commonwealth and more particularly by the Department of Foreign Affairs and Trade and the Australian Secret Intelligence Service.  Mr Keller also stated that:

"… orders made by Federal Magistrate Phipps, and the orders and decision by the Federal Court of Australia following it are invalid and void.  I thus apply again for the compensation for stress, suffering, humiliation, unlawful discrimination, harassment and victimization as well as for compensation for deterioration of my medical condition.  This deterioration of my medical; condition is, without any doubt, a result of unlawful action by the Commonwealth of Australia.  The reason is that the above orders made by Federal Magistrate Phipps and later by the so-called full bench not only offended the principles of Natural Justice, but also contravene Article 5(A) of the International Convention on the Elimination of All Forms of Racial Discrimination.  Article 5(A) of this Convention guarantees among the others the rights to 'equal treatment before the tribunals and other organs administering justice'.  Federal Magistrate Phipps orders have been made merely on the basis of fraudulent allegations of the Respondent, and with total disregard of objective written and signed evidence provided by me, the Applicant.  Therefore, as an Australian citizen, I have a right to demand a proper consideration by the Federal Magistrate Court of Australia of this evident case of arrogant racial discrimination and victimization by the officers of this Court.  Since the unmeritorious arguments presented by the Respondent has been too expeditiously accepted by Federal Magistrate Phipps and other Judges, I hope that those erroneous decision be overturned and the case be properly investigated with a proper consideration of the basic principles of natural justice."

1. On 8 October, 2002, a hearing was listed to consider whether the Tribunal had jurisdiction to review the decision of which Mr Keller sought review.  It was listed for 13 November, 2002.  The Federal Court gave notice that it would not be represented at that hearing but relied on contentions that it had sent in its letter of 5 September, 2002.

1. Mr Keller represented himself at the hearing.  He sought an adjournment on two bases.  The first was that he was still seeking legal assistance.  He had been refused legal assistance by legal aid bodies and welfare rights organisations.  Mr Keller said that he required legal assistance as the matter involves a question relating to constitutional law and he needs to be on a "level playing field".  He wanted me to direct him to a person who was prepared to assist him on a pro bono basis.  The second basis of his application for an adjournment was that he was not well.  He did not have a medical certificate but he was on a disability support pension.  Mr Keller invited me to check that he was on a disability support pension.  When I told him that I could not check that as it would be a breach of privacy, Mr Keller refused to participate in the hearing any further and left the Tribunal.

1. I have waited for over two weeks in order to give Mr Keller an opportunity to reconsider his actions and either to complete his submissions relating to his application for an adjournment or, if refused, his submissions on the jurisdictional issue.  Nothing has been heard from him since.  In view of that, I have decided to resolve both issues in his absence.

1. In relation to Mr Keller's application for an adjournment, I have taken into account the complexity, or otherwise, of the issue that was under consideration.  That issue was whether a decision refusing to accept an application to waive payment of an amount or to exempt Mr Keller from the requirement to pay it is a decision reviewable by the Tribunal.  It is a straightforward issue and does not involve any aspect of constitutional law.  I have also taken into account the length of time that Mr Keller has had to obtain legal assistance and to consider the matter either with or without legal assistance.  Since the Tribunal notified him that its jurisdiction was in question, Mr Keller has had some two and a half months.  That is sufficient time within which to find legal assistance if legal assistance is to be found.  It is also sufficient time for Mr Keller to put forward his views as to the Tribunal's jurisdiction.  In view of those matters, I have decided to refuse Mr Keller's application for an adjournment.

1. That brings me to the substantive issue.  Does the Tribunal have jurisdiction to review the Deputy District Registrar's decision?  The Tribunal may only review a decision made by the Deputy District Registrar if it is specifically given the power to do so by either the Administrative Appeals Tribunal Act 1975 ("AAT Act") or another piece of legislation. This is the effect of s. 25 of the AAT Act. Section 25(1) provides that:

"An enactment may provide that applications may be made to the Tribunal:

(1)for review of decisions made in the exercise of powers conferred by that enactment; or

(2)for review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment."

The enactment must specify the person or persons to whose decisions the provision applies and may be expressed to apply to all decisions of a person or to a class of such decisions and may also specify the conditions which must be met before applications for review may be made (sub-section 25(3)).

1. It is not enough that an enactment provide for review of specified decisions for the Tribunal must also be given power to review specified decisions. That power is given by s. 25(4) which is the necessary corollary to s. 25(1).  It provides:

"The Tribunal has power to review any decision in respect of which application is made to it under any enactment."

1. A reference in the AAT Act to a "decision" includes:

"(a)   making, suspending, revoking or refusing to make an order or determination;

(b)giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;

(c)issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;

(d)imposing a condition or restriction;

(e)making a declaration, demand or requirement;

(f)retaining, or refusing to deliver up, an article; or

(g)doing or refusing to do any other act or thing." (s. 3(3))

1. The practical effect of these provisions is that I have to take two steps to determine whether or not the Tribunal has the power to review a particular decision.  The first is to identify precisely the decision of which review is sought and the second is to identify whether there is an enactment providing that an application may be made to the Tribunal for review of that decision or class of decision.  In this case, I have already identified the decision.  It is the decision of the Deputy District Registrar to refuse to accept applications for exemption from payment, or waiver, of the amount of $750 payable as security for costs on each of two objections.  Mr Keller had lodged the objections pursuant to Order 62 Rule 46(3)(d). 

1. Order 62 is concerned with costs and Rule 46 of that Order is concerned with assessment procedures.  That Rule gives the Registrar a discretion to decline an appointment to tax a bill of costs on its being filed.  In addition, the Registrar may require the party who filed the bill to lodge any documents in that party's possession or power (Order 62 Rule 46(1)).  If the Registrar decides to follow that course, he or she endorses it with the date on which he or she will make that assessment.  It is then returned to the party who filed it and that party serves it on each other party (Order 62 Rule 46(2A)).  The Registrar may then make an estimate of the approximate total for which, if the bill were to be taxed, the certificate of taxation would be likely to issue (Order 62 Rule 46(3)(a)).  The Registrar notifies each person of the estimate and, unless a notice of objection is filed and served on each party within 14 days, the amount of the estimate is deemed to be the amount for which a certificate of taxation may be issue (Order 62 Rule 46(3)(c)).  Upon filing of a notice of objection, a party is required to pay the Registrar "… an amount of $750 as security for the costs of any taxation of the bill" (Order 62 Rule 46(3)(d)).  Where a notice of objection is filed, either the taxation of the bill proceeds or the procedure under Order 62 Rule 46(4) is followed (Order 62 Rule 46(3)(e)).  If 21 days have passed after the Registrar has notified the parties of a completed taxation or of a provision taxation under Order 62 Rule 46(4) and no party has objected to the taxation, then:

"…
the Registrar, after having regard to the liability of any party to pay the costs of the taxation under this Rule, must:

(c)determine how the amount paid to the Registrar as security for the costs of taxation is to be distributed or refunded to the parties; and

(d)direct that payment be made out of Court accordingly." 

Order 62, Rule 46(6A)

1. The AAT Act does not provide for review of the requirement to pay an amount of $750 as security for the costs of any taxation of the bill in specific terms but is there any provision in any other enactment that provides for its review? The only provisions that may be relevant are those found in the Federal Court of Australia Regulations ("the Regulations").  In general terms, r. 2 provides that, subject to certain exceptions that are not relevant in this case, 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 …".  The Schedule sets out the fee payable on the filing of specified documents by certain persons and for the provision of certain services such as providing copies of documents, issuing subpoenas and providing mediation services.  A fee is also prescribed for setting an appointment to tax a bill of costs in which the amount claimed is less than $10,000 and another is prescribed where the amount claimed is above $10,000.  Sub-regulations 2(2), 2(2A) (to which 2(2B) relates) and 2(4) provide for certain circumstances in which fees are not payable.  Regulation 2AA provides for fees payable for setting down a proceeding for hearing.  Regulation 2AA(2) prescribes the circumstances in which such fees are not payable.   

1. Regulation 2B(1) provides that, if the Registrar has made a decision under rr. 2(2A), 2(4)(c), 2AA(2)(h) or 2A(2)(g), he or she must give the person liable to pay the fee a notice of the decision.  The provisions are:

"2(2A)  A fee is not payable in relation to:

(a)an appeal under section 14ZZ of the Taxation Administration Act 1953; or

(b)an appeal from a decision of the Administrative Appeals Tribunal Act 1975 in its Taxation Appeals Division; or

(c)an appeal from a single Judge to the Full Court in relation to an appeal under section 14ZZ of the Taxation Administration Act 1953."

"2(4)  A fee is not payable if:

…

(c)in the case of an individual who is liable to pay the fee – the Registrar, having regard to the income, day to day living expenses, liabilities and assets of the of the individual, waives payment of the fee because, in the Registrar's opinion, it would cause financial hardship to the individual; …"

"2AA  …

(2)A setting down fee is not payable if:

…

(h)in the case of an individual who is liable to pay the fee - the Registrar, having regard to the income, day to day living expenses, liabilities and assets of the individual, waives payment of the fee because, in the Registrar's opinion, it would cause financial hardship to the individual; ..."

"2A  …

(2)A hearing fee is not payable if:

…

(g)in the case of an individual who is liable to pay the fee - the Registrar, having regard to the income, day to day living expenses, liabilities and assets of the individual, waives payment of the fee because, in the Registrar's opinion, it would cause financial hardship to the individual; …"

Regulation 2B(2) provides that an application may be made to the Tribunal for review of decisions made under these provisions.

1. There are no other provisions in the Regulations giving the Tribunal jurisdiction.  Therefore, if the Tribunal is to have jurisdiction, the decision must have been made under one or other of the provisions referred to in r. 2B(1).  Returning to the decision of the Deputy District Registrar, it was a decision to refuse to accept an application to waive and not a decision to refuse to waive two amounts of $750 or to refuse to exempt Mr Keller from their payment.  None of the decisions referred to in r. 2B refers to a decision to refuse to accept an application.  For all practical purposes, though, a refusal to accept an application for waiver or exemption is a refusal to waive or exempt.  I have considered the question of jurisdiction on that basis. 

1. The decision is not an appeal under the Taxation Administration Act 1953 or anything to do with an appeal from the Tribunal in its Taxation Appeals Division.  Therefore, the decision is not one to which r. 2(2A) applies.  Regulation 2(4)(c) is expressed in more general terms but clearly refers to a "fee" and not to "costs".  Order 62 Rule 46(3)(d) refers to "costs" and not to "fees".  Is the reference to fees wide enough to incorporate costs and so give the Tribunal power to review the decision?  I think not. 

1. The word "fee" is defined to mean:

"A charge fixed by law for services of public officers or for use of a privilege under control of government. …" ( Black's Law Dictionary, 6th edition, 1990)

This meaning can be contrasted with that applying to "costs".  It is defined to mean:

"A pecuniary allowance, made to the successful party (and recoverable from the losing party), for his expenses in prosecuting or defending an action or a distinct proceeding within an action. …" ( Black's Law Dictionary, 6th edition, 1990)

There is, therefore, a clear distinction between the two meanings.  In the context of the Regulations, fees are paid to the Court and not to either party to an action.  Costs are payable by one party to another. 

1. The general meaning of the expression "security for costs" is:

"Payment into court in the form of cash, property or bond by a plaintiff or an appellant to secure the payment of costs if such person does not prevail …" (Black's Law Dictionary, 6th edition, 1990)

When taken with the meaning of "costs", it is clear that an amount required to be paid as security for costs is an amount that is paid into Court on the basis that the court holds it pending the determination of the person who is entitled to receive that amount.  The amount is ultimately distributed to the person who is entitled to receive it and is not retained by the Court.

1. It is clear from the summary I have given of the relevant provisions of Order 62 Rule 46 that the expression "security for costs" has been used in its ordinary meaning.  It is clear from Order 62 Rule 46(6A) that the Registrar does not keep the amount paid as security for costs.  He or she must determine how it is distributed or refunded and direct payment out of Court accordingly.  It is clear that the money is not retained by the Court. 

1. It is equally clear that the amount is not a fee.  It is not paid for an action by the Court or an officer of the Court.  It is paid as a consequence of an action of a party to an action in the Court.  It is not retained by the Court but held by the Court as a stakeholder until refunded to the party lodging the notice of objection or paid to another party or parties to the action.  As it is not a fee, it is not an amount that may be waived pursuant to r. 2(4)(c).  A decision in relation to that amount is not a decision under r. 2(4)(c) and so is not a decision that the Tribunal has jurisdiction to review.

1. The same result follows when regard is had to rr. 2AA(2)(h) and 2A(2)(g).  Both are concerned with fees and not with costs.  As the amount in relation to which the Deputy District Registrar made her decision was clearly an amount of costs, the decision was made under neither of those regulations.  Therefore, the Tribunal does not have jurisdiction to consider a decision made in relation to it.

1. For the reasons I have given, I have decided that the Tribunal does not have jurisdiction to review the decision of the Deputy District Registrar to refuse to accept from the applicant an application for exemption from payment, or waiver, of an amount of $750 payable as security for costs on each of two objections lodge under Order 62 Rule 46(3)(d).

I certify that the twenty-two preceding paragraphs are a true copy of the reasons for the decision herein of
Miss S A Forgie (Deputy President)

Signed:          ...............................................................
  P. Paczkowski  Associate

Date/s of Hearing  13 November, 2002
Date of Decision  9 December, 2002
For the Applicant  self represented
For the Respondent  no appearance