King v State of South Australia No. Scgrg-97-1535 Judgment No. S6620

[1998] SASC 6620

KING  v  STATE OF SOUTH AUSTRALIA

Magistrates Appeal
Bleby J

The appellant appeals against an order made by a Master of this Court on 28 November 1997, whereby the Master refused an application made by the appellant for a waiver of fees associated with the lodging of an appeal to this Court. That appeal challenges a decision of the Equal Opportunity Tribunal in which the Tribunal declined to grant an application brought by the appellant under s9 of the Whistleblowers Protection Act 1993. In that action, the appellant alleged that the Ombudsman had committed an act of victimisation, within the meaning of s9 of the Act, against him. The victimisation was said to be the failure properly to act upon disclosure of public interest information made by the appellant, relating to an area of the Ombudsman’s jurisdiction.

Section 50(4) of the Supreme Court Act 1935 provides that an appeal lies against “a judgment, order, direction or decision” of a Master. This was plainly a decision of an administrative character. No argument was addressed to me as to whether an appeal lies against such a decision. It is not necessary to decide the question and I expressly refrain from doing so. I am prepared to assume for present purposes that such an appeal does lie.

The Court has no express power to waive the payment of fees prescribed by Rules of Court.  However, it does have an inherent power to do so:  Pearce & Pearce v Ryan (unreported, Debelle J, 4 February 1997, Judgment No S6010).  The inherent power will be exercised where not to do so would deny a potential litigant access to the prosecution of a proper cause, whatever the nature of the proceeding might be.  As Debelle J observed in Pearce & Pearce v Ryan (supra), to deny a litigant access to the Court because of an inability to pay the fees would be contrary to the interests of justice.

The question of the waiver of fees is, and must always be, within the discretion of the Judge or Master to whom the application is made.  However, in the absence of any rules governing remission of fees, the circumstances in which the discretion may be exercised are necessarily of limited scope.  In my opinion, it can only be exercised if, first there is a demonstrated inability to pay the fees, and secondly there is a special reason that the order should be made.  That will usually require “some degree of satisfaction that the cause of action which is sought to be litigated is a cause of action which has some reasonable prospect of success, being pleaded in a fashion which is sufficiently intelligible to identify its constituent parts”:  In Re Citizen Limbo (1989) 92 ALR 81 per Brennan J at 82.

In relation to the first point, there must be demonstrated an inability to pay the fees, and not merely some degree of hardship.  The fee for instituting an appeal is not insubstantial ($440).  The appellant placed before the Master some limited financial information.  It showed that he received regular payments of approximately $280 per fortnight and that he was repaying a credit card debt of approximately $1,500.  In a further affidavit filed in support of his appeal, he disclosed an obligation to repay other sums totalling $630 advanced to him in September and October 1997, the reasons for which were not disclosed.  No information was given as to the applicant’s other outgoings, whether he had any dependents or whether he received benefits in kind from any other person.

In the Information placed before the Master, he also disclosed significant assets described as “common tools, household and sporting goods, a 1980 motor vehicle valued at approximately $1,800, Santos shares currently valued at approximately $1,000 and a half share in a mortgage‑free house at 25 Main Road, Belair”.  Payment of the fee may well cause some difficulty and possibly hardship to the appellant.  However, whilst his cashflow may be limited, he disclosed a number of unencumbered assets to which the Master obviously had regard in refusing his application.

The protection afforded by the exercise of the inherent power of the Court to exercise its discretion to waive the fees is that which is designed to prevent a denial of access to the Court for an apparently legitimate claim.  The power is not exercised because payment might cause some difficulty or hardship.  It will probably be exercised, for example, where the applicant clearly has no assets at all or is bankrupt and has no source of funds to call on (eg Pearce & Pearce v Ryan (supra)).

In my opinion, the Master correctly concluded that there was evidence on which he could conclude that the appellant was able to pay the lodgment fee.  Indeed, the financial information placed before the Master would lead to no other reasonable conclusion.

As I mentioned, the Master was exercising a discretionary power.  The exercise of such a power will not be interfered with on appeal, assuming there lies such an appeal, unless it can be shown that the exercise of the discretion has miscarried in some way - that some irrelevant consideration was taken into account, that some relevant consideration was not taken into account or that he acted upon a wrong principle (House v The King (1936) 55 CLR 499 at 505). There is no suggestion on the material before me that the Master’s discretion miscarried in any relevant sense.

The appellant referred to two other cases in which his obligation to pay fees had been waived by other Masters based on substantially the same information.  Those cases are not before me, but I can only express some surprise at the result, and I am not persuaded by those facts that the Master in this case was wrong.

In these circumstances, it is not necessary for me to consider the second element, namely the prospects of success on the appeal or whether the appellant has an arguable case.  If it became relevant it would have presented an almost insuperable difficulty for the appellant because the information placed before the Court does not enable any judgment to be formed at all as to whether or not the appellant has such an arguable case.  He placed before the Master his intended Notice of Appeal and his Outline of Argument before the Equal Opportunity Tribunal.  However, the judgment and reasons of the Tribunal were not disclosed, rendering it almost impossible to satisfy the court that he had an arguable case. 

At this stage there is even one further obstacle to success facing the appellant.  Besides rejecting his application for a waiver of fees, the Master, at the same time, extended the time within which the appellant was at liberty to lodge the appeal for a period of fourteen days from the date of the order, namely 27 November 1997.  The appeal does not appear to have been lodged within that time, and the applicant would now need a further extension of time within which to lodge the appeal and pay the fee.  I express no opinion as to whether or not it would be appropriate now to extend the time further.  That is a matter which the appellant will need to consider if he wishes to proceed.

The appeal against the decision of the Master is dismissed.