Ms Krisstie Byrnne and District Registrar, Administrative Appeals Tribunal

[2014] AATA 26

[2014] AATA 26  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/0036
Re	Ms Krisstie Byrnne
APPLICANT
And	District Registrar, Administrative Appeals Tribunal
RESPONDENT

DECISION

Tribunal	Deputy President PE Hack SC
Date	22 January 2014
Place	Brisbane

The decision under review is affirmed.

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Deputy President PE Hack SC

CATCHWORDS

PRACTICE AND PROCEDURE – Fee reduction – whether financial hardship – non-earning applicant maintained by earning spouse – lack of information of financial situation of spouse – decision affirmed.

LEGISLATION

Administrative Appeals Tribunal Regulations 1976 (Cth) regs 19, 19(6A), 20(1)(b

REASONS FOR DECISION

Deputy President PE Hack SC

22 January 2014

1. The applicant, Ms Krisstie Byrnne, lodged an application in the Tribunal on 18 November 2013 by which she sought a review of a decision of a delegate of the Official Receiver, made on 18 October 2013 pursuant to s 55(3)(a) & (c) of the Bankruptcy Act 1966 (Cth), to reject her debtor’s petition. By virtue of reg 19 of the Administrative Appeals Tribunal Regulations 1976 (Cth) (the Regulations) the prescribed fee – $816 – was payable by Ms Byrnne, the decision in issue not being in any of the classes of "fee exempt" decisions.

2. When lodging her application in the Tribunal Ms Byrnne sought the exercise of the discretion in reg 19(6A) of the Regulations to permit her to pay a fee of $100 instead of the usual application fee. She completed the Tribunal's standard form for that purpose. That document, and an amended version of it lodged on 2 December 2013, indicated that Ms Byrnne was not in receipt of any income and had no assets of any consequence. Rather, she was "fully supported by [her] spouse".

3. The material provided did not satisfy the Deputy District Registrar that it was appropriate to exercise the discretion.  On 3 December 2013 a decision was made not to order that a fee of $100 was payable by Ms Byrnne.  By an application lodged on 2 January 2014, Ms Byrnne seeks a review of that decision.

4. The power to order the payment of a reduced fee is conferred by reg 19(6A) of the Regulations in these terms:

   If the Registrar, a District Registrar or a Deputy Registrar, having regard to the income, day-to-day living expenses, liabilities and assets of a person liable to pay an application fee, considers that payment of the fee would cause financial hardship to the person, the Registrar, District Registrar or Deputy Registrar may order that a fee of $100 is payable instead of the application fee.

   A decision under that same regulation not to order that a fee of $100 is payable is reviewable by virtue of reg 20(1)(b) of the Regulations.

5. I note that on 6 January 2014 the Tribunal wrote to Ms Byrnne, inviting her, if she wished,

   …to provide evidence of your spouse's financial circumstances and corroborating evidence of your financial circumstances, including bank accounts.

   A period of 14 days was given for the provision of any additional material.  No further material has been received.

6. In my view the decision made by the Deputy District Registrar was correct and ought be affirmed.  On the face of it Ms Byrne is supported by her spouse. Her situation appears to be the common situation where both spouses are maintained by the earnings of one. In such a situation it is unrealistic to consider the assets, liabilities, income and expenditure of the non-earning spouse without regard to those of the earning spouse. Ms Byrnne has declined to provide any information about the financial situation of her spouse (or suggest any reason why that may not be done). She is perfectly at liberty to do so however I am left in the position that I am well short of being satisfied that payment of the usual fee would cause financial hardship to Ms Byrnne.

I certify that the preceding 6 (six) paragraphs are a true copy of the reasons for the decision herein of Deputy President PE Hack SC

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Associate

Dated 22 January 2014

Date of hearing Heard on the papers