MENNA by next friend Dean MENNA v Romano as Executor of the Estate of Louis Joseph Patrick JORRE-DE-ST.JORRE

[2014] WASC 276

MENNA by next friend DEAN MENNA -v- ROMANO as Executor of the Estate of LOUIS JOSEPH PATRICK JORRE-DE-ST.JORRE [2014] WASC 276

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASC 276
Case No:	CIV:2643/2013	Heard:	ON THE PAPERS
Coram:	McKECHNIE J	Delivered:	30/07/14
No of pages:	6	Judgment Part:	1 of 1
Result:	Appeal partially allowed Filing fee waived
Category:	B
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Parties:	VITA MENNA by next friend DEAN MENNA ANGELINA MENNA by next friend DEAN MENNA MARIE MENNA by next friend DEAN MENNA CONCETTA ROMANO as Executor of the Estate of LOUIS JOSEPH PATRICK JORRE-DE-ST.JORRE CONCETTA ROMANO beneficiary of the Estate of LOUIS JOSEPH PATRICK JORRE-DE-ST.JORRE
Catchwords:	Fees and costs Application to waive fees Matters to be taken into account Courts and judges Appeal from registrar's decision to decline to waive filing fee and other fees Source of power
Legislation:	Rules of the Supreme Court 1971 (WA), O 60A r 4 Supreme Court (Fees) Regulations 2002 (WA), s 47 Supreme Court Act 1935 (WA), s 171
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : MENNA by next friend DEAN MENNA -v- ROMANO as Executor of the Estate of LOUIS JOSEPH PATRICK JORRE-DE-ST.JORRE [2014] WASC 276 CORAM : McKECHNIE J HEARD : ON THE PAPERS DELIVERED : 30 JULY 2014 FILE NO/S : CIV 2643 of 2013 BETWEEN : VITA MENNA by next friend DEAN MENNA

First Plaintiff

ANGELINA MENNA by next friend DEAN MENNA
Second Plaintiff

MARIE MENNA by next friend DEAN MENNA
Third Plaintiff

AND

CONCETTA ROMANO as Executor of the Estate of LOUIS JOSEPH PATRICK JORRE-DE-ST.JORRE
First Defendant

CONCETTA ROMANO beneficiary of the Estate of LOUIS JOSEPH PATRICK JORRE-DE-ST.JORRE
Second Defendant

Catchwords:

Fees and costs - Application to waive fees - Matters to be taken into account - Courts and judges - Appeal from registrar's decision to decline to waive filing fee and other fees - Source of power

Legislation:

Rules of the Supreme Court 1971 (WA), O 60A r 4

Supreme Court (Fees) Regulations 2002 (WA), s 47
Supreme Court Act 1935 (WA), s 171

Result:

Appeal partially allowed

Filing fee waived

Category: B

Representation:

Counsel:

First Plaintiff : No appearance
Second Plaintiff : No appearance
Third Plaintiff : No appearance
First Defendant : No applicable
Second Defendant : No applicable

Solicitors:

First Plaintiff : Templar Legal Pty Ltd
Second Plaintiff : Templar Legal Pty Ltd
Third Plaintiff : Templar Legal Pty Ltd
First Defendant : Not applicable
Second Defendant : Not applicable

Case(s) referred to in judgment(s):

Nil

McKECHNIE J:

How this matter comes for decision

1 Dean Menna is the father and next friend of Vito born 19 June 2000, Angelina born 24 April 2003 and Marie born 20 July 2006. Each of the children by their next friend have commenced proceedings against Concetta Romano, executor of the estate of Louis Joseph Patrick Jorre-De-St.Jorre, Dean Menna's father.

2 On 6 May 2014 the infant plaintiffs made application to remit fees Supreme Court (Fees) Regulations 2002 (WA)(Form 2) (the Fees Regulations). Mr Menna signed on behalf of the applicants.

3 On 16 June 2014 a registrar refused the application:

That the plaintiffs are infants is no reason to waive fees. The plaintiffs are represented by next friend who, in the nature of that office, is personally liable for costs associated with the litigation. That includes such disbursements as court filing fees.

Given the nature of the proceedings it is also very likely that ultimately the plaintiffs will be entitled to their costs (including filing fees) out of the estate.

The application is accordingly refused.

4 On 20 June 2014 the infant plaintiffs filed a request for the Principal Registrar to review the decision. The request is purportedly made under the Supreme Court Act 1935 (WA) s 171:

Fees, regulations may prescribe

(3) If a question arises as to the fee payable or applicable in a particular case, the question is to be decided by the Principal Registrar.

The source of power to appeal the registrar's decision

5 The Supreme Court Act s 171 is inapplicable. The question as to the fee payable or applicable is different from a decision to waive or remit a fee otherwise payable or applicable. The Principal Registrar did not make the decision.

6 However, there are two possible sources of power to appeal. The first is under the Fees Regulations s 7(7):

(7) An application can be made to the trial judge under subregulation (1) on a ground referred to in paragraph (b) or (c) of the definition of special reasons in subregulation (1a) notwithstanding that an application on that ground has previously been refused by a registrar.

7 It is unclear why the Fees Regulations refer to 'trial judge' as most applications for fee waiver will arise long before a judge is allocated for trial.

8 There would seem little point in awaiting resolution until trial if a litigant fulfils the criteria for special reasons. Moreover, many matters will never get to trial, being settled after mediation or for some other cause. It is not possible to read 'trial judge' as 'judge' or 'the court'. The words 'trial judge' are clear and mean what they say.

9 The second is under the Rules of the Supreme Court 1971 (WA) O 60A r 4:

(1) Subject to subrule (6), a person affected by an order or decision of a registrar may appeal from it.

(2) The appeal must be made to a master unless a judge orders otherwise.

10 I consider this is an unequivocal source of power. The registrar has made a decision.

11 The matter has been outstanding for some time within the court and needs prompt resolution. Solely in the interests of expedition, I make an order that the matter be determined by a judge not the master.

Two situations when fees can be waived

12 The Fees Regulations give power to a court or registrar to remit fees in two situations. One is relevantly financial hardship and the other is in respect of a person in a category which requires a filing fee waiver.

1. Power to waive fees for special reasons

7. Court or registrar may remit fees

(1) The Court or a registrar may, in a particular case for special reasons direct -

(a) that a fee or fees be waived or reduced;

(b) that the whole or part of the fee or fees be refunded; or

(c) that the payment of the whole or a part of a fee or fees be deferred until such time, and upon such conditions, if any, as the Court or registrar thinks fit.


(1a) In subregulation (1) -

special reasons includes -

(a) financial hardship;

(b) that an important right or obligation affecting the community or a significant part of the community will be determined; or

(c) that the development of the law generally will be affected so as to reduce the need for further litigation.


…

(1b) For the purpose of assessing financial hardship, the Court or a registrar is to have regard to -


(a) in the case of an individual, the income, day to day living expenses, liabilities and assets of the individual;

(b) in the case of a corporation or incorporated association, the income, liabilities and assets of the corporation or incorporated association.

13 Regulation 7(1) gives the court a discretion to waive or reduce fees if there are special reasons which include financial hardship. The definition of 'special reasons' is inclusive so reasons other than those enumerated may be considered. They must however be special in the sense of being distinguished by some unusual quality.

14 For the purpose of assessing financial hardship:

(1b) For the purpose of assessing financial hardship, the Court or a registrar is to have regard to -

(a) in the case of an individual, the income, day to day living expenses, liabilities and assets of the individual;

15 No information was provided to the registrar about the financial circumstances of any of the infant plaintiffs or the next friend.

16 It is not clear what fees, other than the filing fee, have been paid.

17 Although it might be assumed that the infant plaintiffs would have financial hardship in payment of the fees, the court is required to have regard to the matters in s 7(1b). As there is no information about these matters, it follows that the exercise of the discretion in s 7(1) is not triggered. The mere fact that the plaintiffs are infants does not lift the application into the category of 'special reasons' for the reasons given by the registrar.

18 I dismiss the appeal so far as it relates to fees other than filing fees.

2. Requirement to waive fees for particular persons

(1d) The payment of a filing fee listed in Schedule 1 is to be waived in relation to the following persons -

…

(d) a person under 18 years of age;

19 Waiver of fees under the Fees Regulations s 7(1d) applies only to filing fees, not to any other fees. This is the plain meaning of the Fees Regulations. Waiver of other fees is discretionary and to be determined under Fees Regulations s 7(1).

20 The waiver of a filing fee is mandated for a person under 18 years of age. An infant is a person under disability who may not bring or make a claim in any proceeding except through a next friend: Rules of the Supreme Court O 70(2).

21 The Fees Regulations s 7(1d)(d) should be construed to mandate waiver of filing fees for the person under the age of 18 even if there is a next friend appointed.

22 I therefore allow the appeal to the extent of directing that the filing fees be waived.