McCaughan and High Court of Australia

[2005] AATA 1086

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1086

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2005/685

GENERAL ADMINISTRATIVE  DIVISION

Re:         ROBERT BRUCE McCAUGHAN

Applicant

And:       HIGH COURT OF AUSTRALIA

Respondent

DECISION

Tribunal:       G.D. Friedman, Senior Member

Date:             2 November 2005

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman

Senior Member

HIGH COURT OF AUSTRALIA ‑ waiver of filing and hearing fees - whether financial hardship exists

Administrative Appeals Tribunal Act 1975 s 34J

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

REASONS FOR DECISION

2 November 2005  G.D. Friedman, Senior Member

1.      Mr McCaughan wished to appeal to the High Court of Australia against a decision of the Full Court of the Family Court of Australia. He sought a waiver of filing and hearing fees on the grounds of financial hardship.  On 19 July 2005 the Deputy Registrar of the High Court of Australia refused to waive the fees. On 3 August 2005 Mr McCaughan applied to the Tribunal for review of the decision.

2.      With the consent of the parties the Tribunal has determined this matter in the absence of the parties and without conducting a hearing, under s 34J of the Administrative Appeals Tribunal Act 1975.

3.      The issue is whether the High Court filing and hearing fees should be waived on the basis of financial hardship.

EVIDENCE

4.      On 18 July 2005 Mr McCaughan filed a Statement of Affairs with the Melbourne Registry of the High Court in support of his application for waiver of fees due to individual financial hardship.  In the statement he said that he is employed full-time with Optus as a customer fault consultant and earns $621.29 per week after tax.  He said that he pays $183.41 per week to the Child Support Agency, leaving a net amount of $438.28 per week.   He said that he pays $100.00 per week in rent.  He listed the value of his assets as $276,391, comprising a half-share of the value of the former matrimonial home ($225,000), a half-share of the furniture ($5000), superannuation ($46,052), motor vehicle ($100) and a bank account deposit ($239).

5.      Mr McCaughan listed his liabilities as totalling $84,700, comprising debt on his credit and other cards ($24,200), a mortgage on the former matrimonial home ($58,000), a supplementary loan ($1500) and telephone account ($1000).

6.      In a written submission to the Tribunal dated 2 August 2005 Mr McCaughan stated that his liabilities include debts from the marriage, and his living expenses include the cost of contact with one of his children.  He said that his efforts to sell the matrimonial home have been unsuccessful because of opposition by his former wife. He said that his income is insufficient to meet his weekly expenses and he is forced to borrow from family and friends.  He submitted that he is unable to afford the filing fees of more than $1200 and the hearing fee because he is suffering financial hardship.

CONSIDERATION OF THE ISSUES

7.      Regulations 9 and 10 of the High Court of Australia (Fees) Regulations 2004  provide for waiver of fees or part of the 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 part 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 two-thirds of the amount of the fee.

8.      Mr McCaughan is not the holder of any concession card in his own name nor the recipient of any of the payments referred to in regulation 9.  He does not meet any of the other categories for waiver under regulation 9.  The Tribunal therefore finds that he does not satisfy any of the prescribed grounds for waiver under that regulation. 

9.      In considering Mr McCaughan’s financial situation under regulation 10 the Tribunal takes into account that he has been unsuccessful in his efforts to sell the former matrimonial home; he pays $183.41 per week to the Child Support Agency; and he owes various sums in credit card and other debts.  On the other hand he is in full-time employment; he has the sum of $438.28 per week for living expenses; he has considerable equity in the home; and his assets exceed his liabilities by a large margin.

10.     On balance, having regard to Mr McCaughan’s weekly income and living expenses, his assets and liabilities, the Tribunal is not of the opinion that payment of the filing fee and hearing fee would cause financial hardship to him. The Tribunal concludes that the fees should not be waived in part under regulation 10.

DECISION

11.     The Tribunal affirms the decision under review.

I certify that the eleven [11] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Senior Member

(sgd)       Lydia Zozula

Associate

Date of hearing:  Not applicable: decision on the papers

Date of decision:  2 November 2005