Lyberopoulos v Svilans, Kernot & District CT of SA No. Scciv-01-703

[2001] SASC 254

LYBEROPOULOS V SVILANS, KERNOT AND THE DISTRICT COURT OF SOUTH AUSTRALIA
[2001] SASC 254

Civil

1. LANDER J.          This is an application by a party who styles himself “the plaintiff” for orders:

   “1An order directing that the fees payable for issuing the Summons for Judicial Review annexed to the plaintiff’s Affidavit sworn and filed on 2.5.2001 be waived.

   2An order granting Leave to the plaintiff to serve the Summons for Judicial Review upon the defendants.

   3      Any other order that the Court deems fit.”

2. The summons was set down in the Judge’s chamber list for hearing.

3. I should make mention of the history of this matter.

4. This file shows that the original application commencing “these proceedings” was an ex parte application filed on 2 May 2001 seeking orders:

   “1      An order directing that the fees for filing the within action be waived.

   2      Leave to serve the annexed summons upon the defendants.”

5. An affidavit sworn on the same day and filed on the same day by the plaintiff exhibited the plaintiff’s financial circumstances in support of a claim by the plaintiff that he is unable to pay the fee for filing proceedings which he wishes to commence.

6. There is on file, but it has apparently not been filed, a draft of a summons again dated 2 May 2001 in which the plaintiff seeks orders in the following terms:

   “1An order in the nature of certiorary (sic) quashing the order of Judge Hume delivered to the plaintiff by post on the 17/12/00 dismissing the plaintiff’s application for extention of time with costs to the first and second defendants. 

   2An order in the nature of Mandamus directing that the 3rd defendant correct the official record of the Court in Action No. DCC1V-99-1163 so as to reflect the true dates and events taking place in the matter.

   3An order in the nature of mandamus directing that Judge Hume deliver a ruling on the plaintiff’s appeal to have the order of Master Kelly of 8/8/00 permanetly (sic) staying the plaintiff’s claim, quashed.

   4Any other or further order or orders that this Court deems fit.”

7. There is a further affidavit, which has not been filed, but which is again on the file, sworn by the plaintiff.  In it he recites the history of the proceedings in the District Court which culminated in a hearing before His Honour Judge Hume which he wishes to have judicially reviewed pursuant to r 98 of the Supreme Court Rules.

8. The ex parte application for waiver of Court fees was considered by a Master and refused on 11 May 2001.

9. That refusal apparently gave rise to this further application to me for an order waiving the fees payable for issuing a summons for judicial review.

10. In King v State of South Australia (Judgment No. S6620 9 April 1998, Unreported) Bleby J heard an appeal against “an order” made by a Master of the Court whereby the Master refused an application for waiver of fees.  In that case his Honour expressly refrained from deciding whether an appeal lay from such a decision and proceeded to hear the appeal as if jurisdiction existed.

11. The Masters are members of the Court: s 7(1) Supreme Court Act 1935 (SA). They have power, authority and jurisdiction to the extent authorised by the Supreme Court Act or by the Rules Of Court: s 7(2) of the Supreme Court Act.

12. Section 50(2) provides:

    “(2)Subject to the Rules of Court, an appeal shall lie to a judge against a judgment, order, direction or decision of a master.”

13. Rule 106 provides for the jurisdiction of Masters and r 106.05 for appeals against decisions of masters.

14. The application before me is not an appeal.  No appeal could lie from a Master’s refusal to waive fees.  Such an action does not involve the exercise of a judicial power and is an administrative action and, in my opinion, is not capable of review by way of appeal.

15. In my opinion, a decision by a Master to refuse to waive court fees is not a judicial decision and therefore not a judgment, order, direction or decision in which an appeal lies.

16. Nor, in my opinion, is the decision capable of being reviewed judicially.  Judicial review proceedings only apply to inferior courts.  The Master is a member of this Court and therefore judicial review does not lie from a decision of a Master: Emanuele v Emanuel Investments Pty Ltd (1997) 139 FLR 36.

17. In my opinion, therefore the decision of the Master is not capable of being reviewed in any way.

18. If I am wrong and the members of this Court do have power to remit fees I would still not make the order.

19. The applicant seeks to have me make an administrative decision to waive the fees payable on the issue of an application for judicial review having failed to convince the Master to give such a direction.

20. In my opinion it is inappropriate for a litigant to renew an application for waiver of fees to a judge, having been refused by a Master.  The Master has been asked to exercise the administrative power of the Court.  It is not a power which is capable of being reviewed.  In my opinion, it is inappropriate for a litigant to seek to have a contrary administrative decision made by a Judge of the Court.

21. Indeed, if it were otherwise, the litigant would be entitled, apparently if such an application was refused by both a Master and a Judge, to apply to the Full Court and ask the Full Court to exercise an administrative power to waive fees.

22. I would refuse the application for that reason.  However I would also refuse the application for an even more fundamental reason.

23. There are decisions of this Court which suggest that there is an inherent jurisdiction to waive fees where a party can establish impecuniosity and at the same time establish, if Court fees are not waived, that a party may suffer an injustice: Pearce & Anor v Ryan (Judgment No. S6010, 4 February 1997, Unreported); King v South Australian Psychological Board (Judgment No. S6621, 9 April 1998, Unreported)[1].  Both of those cases relied upon dictum of Brennan J in Re Citizen Limbo (1989) 92 ALR 81 and in particular at 82 where his Honour said:

    ‘In a society governed by law no barrier can be erected against reasonable access to the courts against vindication and protection of legal rights.  To ensure that litigation is not frivolously commenced, modest fees have traditionally been exacted but the courts have reserved a dispensing discretion to ensure that, where litigation can be seen to be justifiable, poverty is no bar to the operation of the law.’ ”

    [1] 1    I was prepared to assume the existence of the jurisdiction in Westpac Banking Corporationv Hiskey (1999) SASC 419

24. In that case the application relied upon O 72 r 12 of the High Court Rules which provides that a Justice of the High Court may ‘in a particular case “for special reason” direct that a fee shall not be taken.’  Indeed Brennan J held that it was O 72 r 12 which ‘confers such a discretion but its exercise is governed by the considerations which evoke its creation’.

25. There was therefore in that case a specific legislative base for remitting fees ‘for special reason’.  In Re Louis (1988) 62 ALJR 39 Deane J said the rule does not assist in determining what might amount to special reason, and that it was arguable that ‘ “special reason” was not intended to encompass a case in which the only grounds adduced for the making of an order are the lack of means of the applicants.’

26. However he was prepared to assume that the primary consideration for making an order was the applicant’s means.  He held that in considering whether an order should be made directing that no fee be taken it was necessary to have regard to the nature of the proceedings and the prospects of success.

27. In my opinion, neither Re Citizen Limbo (supra) or Re Louis (supra) are authorities for the proposition that this Court, absent a legislative power, has authority to remit Court fees.

28. In this Court the fees payable for the lodgement of any process are prescribed by regulation, pursuant to s 130(1) of the Supreme Court Act 1935: Supreme Court (Fees) Regulations 1999.

29. The Regulations do not provide for the remission of those fees.  There is no legislative power to remit fees or to ignore the effect of the Regulations.  Any decision to remit fees, which are otherwise payable by regulation, would, in my opinion, be to ignore the regulation.

30. This Court has not reserved to itself, in its Rules a power to remit fees as the High Court has done in its Rules.

31. The position of this Court may be contrasted with the District Court. Section 53 of the District Court Act 1991 (SA) also provides that the Governor may, by Regulation, prescribe and provide for the payment of fees in relation to proceedings in the Court. However, s 53(2) specifically allows the Court the power to remit or reduce a fee on account of the poverty of the party by whom the fee is payable or for any other proper reason. Parliament has specifically provided in s 53(2) for power to reduce fees on account of the poverty of a party in the District Court.

32. This, in my opinion, is further support for the proposition that this Court does not have the power to remit fees.

33. In those circumstances there is not the power, it seems to me, to remit fees which are otherwise payable by a valid Regulation made pursuant to s 130(1) of the Supreme Court Act 1935.

34. In R v Lord Chancellor;Ex parte Witham (1998) QB 575 the Court of Appeal in England was called upon to consider the validity of article 3 of the Supreme Court Fees (Amendment) Order 1996 a regulation made under the English Supreme Court Act 1981.

35. The power to make orders was contained in s 130 of the English Act which provided that the Lord Chancellor was entitled by order to prescribe the fees to be taken in the Supreme Court.

36. Article 3 of the Supreme Court Fees (Amendment) Order 1996 provided for the fees.  It also repealed provisions contained in a previous order which relieved litigants in person, who were in receipt of income support, from the obligation to pay fees and allowed the Lord Chancellor to reduce or remit the fee in any particular case on grounds of undue financial hardship in exceptional circumstances.

37. It was argued that there was an implied limitation upon the Lord Chancellor’s power to prescribe fees to be taken in the Supreme Court.  It was submitted that s 130 did not permit the Lord Chancellor to exercise the power to prescribe fees in such a way as to deprive a person of that person’s constitutional right of access to the courts.

38. Laws J concluded that a citizen had a constitutional right to access to the Courts.  The executive was not entitled to abrogate that right unless specifically permitted by Parliament.  In those circumstances the Court was entitled to determine whether Article 3 transgressed the principles in Associated Provincial Picture Houses v Wednesbury Corporation (1948) 1 KB 223.

39. Laws J concluded that the effect of the order was to bar absolutely many persons from seeking justice from the Courts and thereby denied persons their constitutional right to access to the Court.  No such power had been given by Parliament and in those circumstances the Article was unreasonable and a declaration ought to be made that the order was ultra vires and unlawful.

40. There is no claim, on this application, that the Regulations made under s 131(1) are ultra vires the power given in that section for the reasons advanced by the Court of Appeal.  This is simply an application for remission of Court fee. 

41. In my opinion, unless and until this Court declares the Regulations made under s 131 of the Supreme Court Act 1935 ultra vires, the Court does not have power to remit Court fees.

42. For those further reasons I would refuse the application.

43. For those reasons it is not necessary and indeed not desirable to consider the nature of the proceedings which are sought to be brought and the prospects of their success.  It cannot be assumed, however, that I believe that the contemplated proceedings are appropriate or enjoy any real prospects of success.

44. The application is refused.