Re Vasiliou
[2010] VSCA 361
•3 December 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2009 3813
IN THE MATTER OF
| ANDREW VASILIOU | Appellant |
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| JUDGES | BONGIORNO JA and VICKERY AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 3 December 2010 |
| DATE OF JUDGMENT | 3 December 2010 |
| MEDIUM NEUTRAL CITATION | [2010] VSCA 361 |
| JUDGMENT APPEALED FROM | Re Vasiliou (Unreported, Supreme Court of Victoria, Byrne J, 8 July 2009) |
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PRACTICE AND PROCEDURE – Whether fee on Notice of Appeal is able to be waived by Prothonotary or Deputy Prothonotary – Corporation a party to the proposed appeal –Supreme Court Act 1986, s 129(3) – Not open for a corporation to be excused from payment of filing fee in Victoria
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APPEARANCES: | COUNSEL | SOLICITORS |
For the Appellant, Mr Vasiliou | Mr Vasiliou appeared in person | Nil |
VICKERY AJA:
Background to the Application
This is an appeal by Andrew Vasiliou (‘the appellant’) who seeks to appeal a decision of Byrne J. His Honour, sitting in the Practice Court on 8 July 2009, dismissed an originating motion of the appellant in which he sought relief against the Deputy Prothonotary claiming that he should have exercised his discretion to waive filing fees in respect of a Notice of Appeal.
The appellant was made bankrupt on 14 September 2004 and was discharged from bankruptcy on 15 October 2007. His trustee in bankruptcy was Brendan John Marchesi. Mr Marchesi was represented on this appeal by Ms C Gobbo of counsel.
As to the substantive matter, which is the subject of the proposed Notice of Appeal Mr Marchesi, the appellant’s trustee in bankruptcy, sought the removal of a caveat lodged on the titles to three properties and orders restraining the appellant, his wife and a company Optquest Pty Ltd, from lodging further caveats. Following a trial in 2009, Hansen J ordered the removal of the caveat and ordered the three defendants not to lodge any further caveats over the properties.
The appellant sought to appeal the decision of Hansen J. He relied on a Notice of Appeal dated 15 June 2009 (the ‘Notice of Appeal’), in which the appellant was named as the first appellant; Vasiliki Apostolou was the second appellant and; Optusquest Pty Ltd (a company) was the third appellant.
On 22 June 2009, the appellant sought to file the Notice of Appeal against the decision of Hansen J and the waiver of the $2,992.60 fee, payable on the filing of the notice. The waiver application was made by letter to the Prothonotary dated 22 June 2009. The application was supported by an affidavit of financial circumstances sworn by the appellant also dated 22 June 2009.
The Deputy Prothonotary considered the waiver application and refused the application on the stated basis that:
The said application to waive the payment of the fee of $2922.60 is refused on the basis that a company is a named appellant on the proposed Notice of Appeal.
The power to waive fees in respect of documents filed with the Court is given by s 129(3) of the Supreme Court Act1986 (the ‘Act’) which provides:
The prothonotary or a deputy prothonotary, at or for the place where a proceeding is to be heard may, having regard to the income, day to day living expenses, liabilities and assets of the person liable to pay a fee prescribed under sub-section 1(a), waive payment of that fee if, in his or her opinion, the payment of that fee by that person would cause him or her financial hardship and in that case the prescribed fee is not payable. [Emphasis added]
Appeal to Byrne J
The appellant then sought to appeal or review the decision made by the Deputy Prothonotary by application made by originating motion in the Practice Court on 8 July 2009.
The appellant contended that the Deputy Prothonotary misconstrued s 129(3) of the Act. He argued that a company is a ‘person’ and that accordingly the Deputy Prothonotary ought to have exercised his discretion on the basis of the financial hardship of the appellants.
Byrne J concluded that the reference to living expenses and the expression ‘cause him or her financial hardship’ in s 129(3) of the Act provided a strong indication that a company is not intended to be a beneficiary of a fee waiver in respect of documents filed in the Court.
Byrne J also concluded that it was unclear what power there was to review or remit the decision to the Deputy Prothonotary and stated ‘I doubt very much whether there is an appeal from a waiver decision of a Deputy Prothonotary to a judge of the Court’.
Byrne J dismissed the appellant’s application.
It is from this determination of Byrne J that the appellant now appeals.
Grounds of Appeal
The appellant advanced 10 grounds of appeal which can be grouped as follows:
1.The judge erred in determining that the appellant was not eligible to obtain a fee waiver from the Deputy Registrar (Grounds 1, 9 and 10)
2.The appellant was denied procedural fairness (Grounds 2 , 3 and 7)
3.The judge did not take into account the NSW method in assessing applications for fee waivers (Grounds 4 and 5)
4.The judge did not take into account that there is only one fee per application which requires that only one appellant pay the single fee and should have assessed each appellant individually in determining whether a fee should apply. (Ground 6)
The Eligibility Ground (Grounds 1, 9 & 10)
Pursuant to s. 38 Interpretation of Legislation Act1984 (Vic), in all acts and subordinate instruments, unless the contrary intention appears, a ‘person includes a body politic or corporate as well as an individual’ or natural person.
However, in my opinion, a contrary intention does appear in s 129(3) of the Act in relation to the ‘person’ who may be eligible for a fee waiver, such that the sub‑section is limited in its application to natural persons.
First, the Prothonotary or a Deputy Prothonotary who is called upon to make the determination is required to have regard to ‘income, day-to-day living expenses, liabilities and assets of the person’ making the application. A company is a legal person, but cannot incur ‘day-to-day living expenses’ in the way contemplated by the ordinary and natural meaning of those terms.
Second, in order to waive the fee, the Prothonotary or a Deputy Prothonotary is required to form an opinion that ‘the payment of that fee by that person would cause him or her financial hardship’ [emphasis added]. The sub-section is not framed in terms of financial hardship being suffered by a corporation, otherwise the pronoun it would have been included in the list of persons in respect of whom financial hardship is caused, such as to render the sub-section applicable to a company.
In this case, the proposed appellants were two natural persons, one of whom included the appellant, together with a company, Optquest Pty Ltd. The application for waiver of the filing fee was also made in respect of the company, in its capacity as one of the proposed appellants.
The appellant contended that the company named as an appellant, in the Notice of Appeal, was a trustee company which acted on behalf of, and in the interests of natural person beneficiaries, who were members of the appellant’s family. The appellant also submitted that the company in this case was not a trading company. In my opinion, these matters make no material difference to the corporate status of the proposed appellant for the purposes of s 129(3) of the Act.
Section 129(3) does not permit a waiver of fees to be extended to a corporation.
There is no merit in these grounds of appeal.
The Procedural Fairness Grounds (Grounds 2 , 3 and 7)
The appellant failed to provide particulars of the allegations he made, that he was denied procedural fairness before Byrne J or any evidence in support of this contention.
In particular, there is no evidence that the appellant was prevented from having the opportunity to ventilate any issues or arguments he wished to raise before Byrne J, or that the judge manifested any actual bias or grounds for any apprehended bias against the appellant.
Although the appellant made an oral submission in this appeal that the Judge was biased against him, I am not satisfied there was any basis whatsoever for such an allegation.
The grounds of appeal have no merit.
The NSW Approach to Fee Waivers (Grounds 4 and 5)
The appellant provided to the Court, in the course of this appeal, documents which appear to have been obtained from the internet. The documents related to making of an application for a fee waiver for documents filed in the Supreme Court of New South Wales. These documents, on their face, appear to permit the waiver of fees for companies as well as natural persons.
However, in New South Wales the governing legislation is markedly different from its Victorian counterpart. In New South Wales, pursuant to s 11(1) of the Civil Procedure Regulation Act 2005, the registrar of the Supreme Court may direct that a fee be waived, postponed or remitted in circumstances which are not on their face limited as they are in Victoria. Subsection 11(1) of the New South Wales legislation provides a general power for the registrar to waive, postpone and remit fees and does so in the following terms:
(1) The registrar of the court may, by order in writing, direct that the whole or any part of any fee payable to the registrar be waived, postponed or remitted, subject to such conditions (if any) as the registrar thinks fit to impose.
In the present appeal, the Judge has not been shown to have erred in failing to take into account or adopt the ‘NSW method’ as referred to in grounds 4 and 5.
In my opinion, these grounds of appeal also have no merit.
Whether Requirement to Assess the Position of Each Appellant Individually (Ground 6)
It was submitted that the Deputy Prothonotary should have assessed each appellant individually before determining whether a fee should apply or be waived, and that the Judge was also in error in failing to take this approach.
The appellant said in his supporting affidavit that:
11. BUT there is ONLY one FEE per Application or APPEAL and not ONE FEE per NAMED APPELLANT or APPELANT so in my way of seen ‘things’ is the fact that if one party presents that document and gets a FEE WAIVER then the rest of them do not have to pay or do anything further and it works the same if one party pays the particular fee to the Court then the others do not have to PAY anything more to it.
This submission has no merit.
The Deputy Prothonotary was required to determine whether the fee as a whole should be waived in respect of the document which was sought to be filed. In the exercise if his discretion under s 129(3) of the Act, he was not in a position to determine that the fee should be waived in respect of some of the proposed natural person appellants with the consequence that the fee is also waived in respect of a proposed corporate appellant in respect of the document sought to be filed.
As one of the proposed appellants was a company, the waiver provision found in s 129(3) of the Act could not apply to relieve it from payment of the filing fee in respect of the document sought to be filed, as long as it remained a prospective appellant. The corporate appellant remained liable to pay the fee in respect of its appeal.
Whether the Decision of the Deputy Prothonotary Appellable or Reviewable
It should be noted that I have considerable doubt as to whether the decision of the Deputy Prothonotary made pursuant to s 129(3) of the Supreme Court Act 1986 is reviewable by this Court.
However, as this issue was not the subject of argument before this Court, and by reason of the other findings made in these reasons, it is unnecessary to decide this point.
Costs and Orders
I would order that the appeal be dismissed.
As to costs, the appellant by email letters dated 12 November and 27 November 2010, advised Mr Marchesi that he intended to use this appeal to reopen his appeal against the decision of Hansen J made in the trial heard in 2009.
Mr Marchesi was entitled to be represented in this hearing to resist any such application.
Although Mr Vasiliou did not in fact take this course, Mr Marchesi is entitled to be paid his costs of this hearing, and I would further order that the appellant pay the costs of Mr Marchesi of his appearance at this hearing.
BONGIORNO JA
I agree with the reasons of Vickery AJA and the orders which he proposes.
The appeal is dismissed and the appellant is ordered to pay Mr Marchesi’s costs of his appearance today.
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