Re Vasiliou - [2009] VSC 286

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

No. 7736 of 2009

IN THE MATTER of Section 129(3) of the Supreme Court Act 1986

IN THE MATTER of an application by Andrew VASILIOU to obtain a fee waiver

ANDREW VASILIOU

Applicant

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JUDGE:	BYRNE J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 July 2009
DATE OF JUDGMENT:	8 July 2009
CASE MAY BE CITED AS:	Re: Vasiliou
MEDIUM NEUTRAL CITATION:	[2009] VSC 286

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PRACTICE AND PROCEDURE – Fee waiver – Whether a company eligible for waiver

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APPEARANCES:	Counsel	Solicitors
For the Applicant	The Applicant appeared in person

HIS HONOUR:

Before me in the Practice Court is Andrew Vasiliou. As best as I can divine his concern it is that the Deputy Prothonotary has refused to waive the fee payable upon the filing of a Notice of Appeal in the Court of Appeal. He produced an unfiled Notice of Motion dated 26 June 2009 and an affidavit sworn by him on the same day. These documents, he said, were not accepted for filing by the Prothonotary, presumable pursuant to r 27.06.

Mr Vasiliou was made bankrupt on 14 September 2004 and he was discharged from bankruptcy on 15 October 2007 pursuant to s 149 of the Bankruptcy Act 1966. His trustee was and is Brendan John Marchesi.

Mr Marchesi has had an ongoing dispute with Mr Vasiliou regarding three pieces of real estate which were registered in Mr Vasiliou’s name. Mr Vasiliou has for some years resisted the efforts of Mr Marchesi to obtain and realise these properties, contending that he held them on trust for the Vasiliou Family Trust. At some stage it was suggested that the trustee of the Vasiliou Family Trust was Mr Vasiliou’s wife, Vasiliki Apostolou. At another stage it may be that the trustee of the Trust was Optquest Pty Ltd, a company of which Mr Vasiliou is the sole director.

By proceeding No 5856 of 2009 Mr Marchesi sought the removal of a caveat lodged on the titles to the three properties and orders restraining Mr Vasiliou, Ms Apostolou and Optquest from lodging further caveats. The caveat the subject of the principal relief was lodged on behalf of Optquest.

Following trial Hansen J on 5 June 2009 ordered the removal of the caveat and enjoined the three defendants from lodging a further caveat, subject to certain terms which are not here relevant.

On 22 June 2009 Mr Vasiliou sought to file a notice of appeal and also sought a waiver of the fee of $2,922.60 payable upon the filing of the notice. The Deputy Prothonotary on 22 June refused the waiver application in these terms:

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 is given by s 129(3):

The prothonotary, or a deputy prothonotary, at or for the place where a proceeding is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] VSC 286
Decision Date: 8 July 2009

CaseChat Overview and Summary

Vasiliou was an appeal by the respondent in a proceeding against the appellant in the Federal Circuit Court of Australia. The dispute concerned whether the respondent was eligible for a fee waiver under the Administrative Appeals Tribunal Act 1975. The court held that the respondent was not eligible for the waiver because the respondent was a company, and the Act only provides for a waiver for individuals. The court further held that the respondent was not entitled to an exemption from the fee requirements as it had failed to provide the necessary evidence to support its application for an exemption. The court dismissed the appeal and affirmed the decision of the primary judge.

The main legal issue in this case was whether the respondent, a company, was eligible for a fee waiver under the Administrative Appeals Tribunal Act 1975. The court had to determine whether a company could be considered an individual for the purposes of the Act. The court also had to consider whether the respondent was entitled to an exemption from the fee requirements, and whether the respondent had provided sufficient evidence to support its application for an exemption.

The court held that the respondent was not eligible for a fee waiver under the Act because the Act only provides for a waiver for individuals, and the respondent was a company. The court held that the definition of an individual in the Act did not include a company. The court further held that the respondent was not entitled to an exemption from the fee requirements as it had failed to provide the necessary evidence to support its application for an exemption. The court held that the respondent had not demonstrated that it met the criteria for an exemption under the Act.

The court dismissed the appeal and affirmed the decision of the primary judge. The court held that the respondent was not eligible for a fee waiver under the Administrative Appeals Tribunal Act 1975, and that the respondent was not entitled to an exemption from the fee requirements. The court held that the respondent had failed to provide sufficient evidence to support its application for an exemption. The court dismissed the appeal and affirmed the decision of the primary judge.

Orders