Prendergast v Woolworths Limited - [2007] WADC 82

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: PRENDERGAST -v- WOOLWORTHS LIMITED [2007] WADC 82

CORAM: COMMISSIONER O'NEAL

HEARD: 23 APRIL 2007

DELIVERED : 25 MAY 2007

FILE NO/S: CIV 164 of 2005

BETWEEN: LYNETTE RAE PRENDERGAST
Plaintiff
AND
WOOLWORTHS LIMITED
Defendant

Catchwords:

Fee dispute - Summary review of decision of Principal Registrar

Legislation:

District Court of Western Australia Act 1969
District Court (Fees) and Regulations 2002

Result:

Application dismissed

Representation:

Counsel:

Plaintiff: Mr N P Lindsay
Defendant: Not applicable

Solicitors:

Plaintiff: S C Nigam & Co
Defendant: Not applicable

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

Tasmania v Commonwealth & State of Victoria (1904) 1 CLR 329

COMMISSIONER O'NEAL: This is a review pursuant to s 89A(4) of the District Court of Western Australia Act 1969 (the "Act") of a decision of the Principal Registrar with respect to a question as to a fee payable.
By s 89A of the Act the power is given to make regulations prescribing fees to be paid, among other things "when entering a cause or matter for trial …", for the issue of any document by the Court, for the service of any document, or when lodging a document with the Court: Act s 89A(1). The District Court (Fees) and Regulations 2002 are the regulations made pursuant to the Act.
Rule 7(1) of the Regulations gives power to the District Court or a Registrar to waive or reduce fees, refund them in whole or part or to defer all or part of the fee. Rule 7(1d) provides however that "the payment of a filing fee listed in Schedule 1 is to be waived …" in relation to certain persons. The list of persons who are entitled to the waiver of payment of filing fees includes the holder of a "pensioner concession card": Rule 7(1d)(a)(iii).
On 26 March 2007 the Civil Listings Officer advised the solicitors for the plaintiff that a daily hearing fee was payable for the hearing of a civil trial in this action. In accordance with the r 9 of the Regulations the plaintiff's solicitors were advised that "this matter will not be listed for hearing until the fee has been paid or waived or deferred under r 7".
By a letter dated 30 March 2007 the plaintiff's solicitors advised the Civil Listings Officer that their client was a "Centrelink pensioner" and provided a copy of her pensioner concession card as proof. The solicitors asked that the fees for the trial "be waived pursuant to r 7(1d)(a)(iii). An application in Form 2 in support of this request was later provided to the Civil Listings Officer on 4 April 2002.
On considering the plaintiff's application, the Registrar determined to defer the fee rather than waive it and the plaintiff's solicitors were so advised on 10 April 2007. In apparent reliance on r 7(1)(c), payment of the listing fee and any additional daily hearing fees was deferred until the earlier of:
"(a)judgment being handed down following a trial of the matter;
(b)the trial dates allocated being vacated;
(c)the Court being advised of the finalisation of the matter; or
(d)12 months from the date of the order."
The plaintiff's solicitors were dissatisfied with this result and on 12 April 2007 lodged an application in Form 3 for the determination of a dispute and asked that the matter be referred to the Principal Registrar for his decision. The Form 3 application disputes that the "Item 7 daily hearing fee for trial is payable. As set out in the application, the reason given for the dispute is "Regulation 7(1d) makes it clear that the above fee is to be waived – is mandatory in its operation (sic) ".
On 19 April 2007 the Principal Registrar provided his decision with respect to the fee dispute. In a letter to the plaintiff's solicitors he said, "Rule 7(1d)(a)(iii) only applies to the 'payment of a filing fee listed in Schedule 1' ". An example would be Item 1 of the Schedule. It does not apply to the daily hearing fee payable pursuant to Item 6. That being so, your client's application falls to be determined on the general power to waive, reduce, refund or defer fees set out in r 7(1)". The Principal Registrar declined to change the determination made by the Registrar.
Subsection 89A(4) does not stipulate the nature of the review to be carried out by District Court Judge in these circumstances other than to provide for a review "in a summary way". The provision for a "review … in a summary way" suggests that it is open to me to deal with the matter de novo, that is without the necessity of error being demonstrated in the decision of the Principal Registrar. That is the way I will approach this review.
By r 4(1) of the Regulations:
"Subject to the provisions of these Regulations, the fees specified in Schedule 1 and 2 are to be charged in respect of the matters referred to in s 89A of the Act in relation to which they are applicable."
Schedule 2 deals with sheriffs fees. Schedule 1 provides for "Registry Fees". Items 1, 2 and 8 of Sch 1 expressly provide for fees to be charged "on filing" various documents. Item 3 provides for the fee to be charged for "commencing an appeal". Item 5 provides for the fee where cause or matter is entered for hearing and Item 6 deals with "allocation of hearing date" and provides a fee "for each day allocated". It is of course this last Item that is the subject of the fee dispute. There are other fees prescribed which I did not need to refer to.
I have set out above the provisions of r 7(1) which, together with r 7(1)(a) provide a relatively broad discretion to the Court or to a Registrar to waive, reduce, refund or defer any fee. Where the requirement of "special reasons" is met that discretion may be exercised with respect to any of the fees specified in Sch 1: see r 7(1a) and (1aa).
As the plaintiff's solicitors suggest, r 7(1d) is quite different. For those persons who fall within one of the descriptions set out in the sub‑regulation "the payment of a filing fee … is to be waived …".
It is however, significant in my view that while the Court's or Registrar's discretion may be exercised with respect to "a fee or fees" pursuant to r 7(1), the waiver in r (1d) is said to be in respect of "the payment of a filing fee listed in Schedule 1 …".
Even if r 7(1d) was the only provision in the Regulations dealing with the circumstances where fees might be avoided, I would have thought it was clear and unambiguous. A "filing fee" is plainly a fee prescribed for the filing of some kind of document in the Court Registry. In the case of Sch 1 the express words of Items 1 and 2 describe the fees to be paid "on filing" the various documents referred to. A "filing fee" is unambiguously not a fee charged for the provision of some other service such as that to be paid as a daily rate for the use of Court facilities for a hearing or a search of any record or proceeding or provision of that information to approved recipients. Not every "Registry Fee" is a "filing fee".
In my view r 7 is intended to provide two different circumstances, and in particular r 7 is intended to provide two different circumstances where fees might be avoided. The broad discretion to be applied pursuant to r 7(1)(a) may be exercised not merely in respect of financial hardship. The discretion can be enlivened by "special reasons" that include not merely the financial circumstances of a litigant but also the nature of the litigation: r 7(1a)(b) and (c).
By contrast r 7(1d) is a specific dispensation given to the individuals who fall within the categories set out. It is highly likely, I would have thought, that many of those people would have in any event met the category of "financial hardship" within r 7(1a). In other words, those persons would not only be entitled to apply for an exercise of the broader discretion with respect to all fees, they would be entitled as of right, to the waiver of "filing fees".
And, while the maxim expressio unius est exclusio alterius should only be employed with caution, it appears to me reasonable to assume here that the use of the expression "filing fee" in sub reg 7(1d) in contrast to the general "fee" in r 7(1) indicates a deliberate intention to deal with the subject matter of waiver of fees differently as between the two sub regulations: Tasmania v Commonwealth & State of Victoria (1904) 1 CLR 329.
There is of course nothing to prevent someone like the plaintiff who obtains a deferral of hearing fees from later applying pursuant to r 7(1) to have those fees waived. The Registrar has obviously accepted that the plaintiff's circumstances bring her case within the category of "special reasons". He has allowed, for now, the hearing fees to be deferred. If the result of the litigation is adverse to the plaintiff her financial circumstances would in all probability continue to be "special reasons" that might warrant a further exercise of the r 7(1) discretion. On the other hand if she is successful and obtains an order for costs there will be no reason to expect the public revenue to subsidise fees that would otherwise be paid by the unsuccessful defendant. In the circumstances it is entirely appropriate in my view to defer the payment of hearing fees and await the outcome of this action.
For these reasons the application to review the Principal Registrar's decision of 19 April 2007 should be dismissed.