Stocks and Registrar, High Court of Australia

[2008] AATA 968

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 968    

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/2083 &    

GENERAL ADMINISTRATIVE  DIVISION		)               2008/2084
Re		TERENCE IAN STOCKS (2008/2083)

Applicant

And REGISTRAR, HIGH COURT OF AUSTRALIA

Respondent

AND

Re             GAIL MAREE STOCKS (2008/2084)

Applicant

And REGISTRAR, HIGH COURT OF AUSTRALIA

Respondent

DECISION

Tribunal Ms A F Cunningham (Senior Member)

Date31 October 2008  

PlaceHobart

Decision The Tribunal sets aside the decision under review and in substitution determines that two-thirds of the fees payable by the applicants with respect to their application for special leave to appeal to the High Court be waived.

[Sgd Ms A F Cunningham]

Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE - request for waiver of filing fee for application for special leave to appeal to the High Court - financial hardship - decision set aside

High Court of Australia (Fees) Regulations 2004, Reg 10

Re Paterson and Department of Arts, Heritage and Environment (No. 2) 8 ALD 227

Dedes and Commissioner of Taxation [2008] AATA 331

Re Bailey and Commonwealth Tertiary Education Commission (1986) 12 ALD 165

REASONS FOR DECISION

31 October 2008 Ms A F Cunningham (Senior Member)   

1.      The Deputy Registrar of the High Court of Australia refused the applicants' applications for waiver of fees with respect to their application for special leave to appeal to the High Court on the basis that he was not satisfied that payment would cause the applicants undue financial hardship.   This was the hearing of appeals against the decisions of the Deputy Registrar. 

2.      Terence Ian Stocks and Gail Maree Stocks were joint applicants for special leave to appeal to the High Court and are jointly and severally liable for payment of the filing fee.  Each applicant lodged separate applications for waiver of the filing fee on the grounds of financial hardship.  Both applications were refused by the Deputy Registrar.  With respect to Terence Stocks the reasons were as follows:

"1.       Your application for a fee waiver indicates you are in employment with Richard Danes Nominees Pty Ltd as a taxi driver.  The tax invoice dated 31 March 2008 which was attached to your application indicates you received a total of $5,631.77 (net of GST) for the period from 5 January 2008 to 29 March 2008.  That is a net income of approximately $433 per week.

2.        I note your wife earns approximately $580 net per week, and you do not have any dependents.  You pay rent of $120 per week between you.  You and your wife together own furniture worth $30,000.  You have credit card debts totalling approximately $23,000.

3.        Taking all these matters into account, in particular, your weekly income and lack of dependents, and the fact that your wife has an income, I am not satisfied that payment of the filing fee would cause you financial hardship".

3.      With respect to Gail Stocks the reasons were stated as follows:

"1.       Your application for a fee waiver indicates you are in employment with Audent Pty Ltd as a receptionist.  The pay slip dated 16 April 2008 which was attached to your application indicates you have a net income of approximately $580 per week.

2.        I note your husband earns approximately $433 net per week, and you do not have any dependents.  You pay rent of $120 per week between you.  You and your husband together own furniture worth $30,000.  You have a credit card debt of $12,000.

3.        Taking all these matters into account, in particular, your weekly income and lack of dependents, and the fact that your husband has an income, I am not satisfied that payment of the filing fee would cause you financial hardship".

4.      Both applicants have appealed the Deputy Registrar's decision to this Tribunal.  The appeals were heard together.  Terence Stocks and Gail Stocks both gave oral evidence to the Tribunal with respect to their financial circumstances.  The T Documents were tendered in evidence.

5.      The High Court of Australia was not represented and did not appear at the hearing of the applications but advised the Tribunal that it would abide by any decision made by the Tribunal save as to costs.

Background:

6.      The application for special leave to appeal to the High Court followed a decision of the Full Court of the Supreme Court of Tasmania which set aside a decision of the Chief Justice awarding judgement in favour of the applicants against the owner of the Northgate Shopping Centre, the Retirement Benefits Fund Board.  The Chief Justice's decision would have resulted in the applicants receiving between $70,000 and $100,000.  

7.      The High Court refused the applicants' application for special leave to appeal from the judgement of the Full Court of the Supreme Court of Tasmania and ordered that the applicants pay the respondent's costs of the application.   The applicants also liable for the costs of the appeal to the Full Court of the Supreme Court.

8.      It was Mr Stocks' evidence that he and his wife had been involved in litigation concerning the lease of a shop in the Northgate Shopping Centre for some 22 years.  He contended that they were owed money by the Retirement Benefits Fund Board and had initiated legal action to recover the money. 

Evidence:

9.      In support of their applications for waiver of fees, both applicants completed a statement of affairs with respect to their financial circumstances.  In their evidence before the Tribunal, Mr and Mrs Stocks confirmed that there had been little change to their financial circumstances since their applications were completed in April 2008. 

10.     Mr Stocks is employed as a taxi driver by Richard Danes Nominees Pty Ltd and receives approximately $516 weekly income after tax.  Mrs Stocks is employed as a receptionist by Audent Pty Ltd and currently receives $620 weekly income after tax which had increased from $580 since April 2008.  Mr and Mrs Stocks rent a property in Duke Street, Sandy Bay for which they pay $280 per week.  Their only assets comprise household furniture which they estimate to be worth around $30,000.  Mrs Stocks has a superannuation fund which was worth $21,892 in April 2008. 

11.     Mr and Mrs Stocks have significant credit card liabilities which are as follows:

In the name of Mr Stocks:

AMEX           $5,204  Citi Bank   $9,692   Westpac           $8,693. 

In the name of Mrs Stocks:

NAB               $12,000  TOTAL         $35,589

12.     It was Mr Stocks' evidence that their credit card debts were used to access credit when their income was insufficient to meet their household and day to day expenses.  He said that the credit had not been sought for any unusual or extravagant purchases.  Mr Stocks recalled that his last holiday with his wife was approximately five years ago. 

13.     Mr and Mrs Stocks were declared bankrupt in 1988 and were released from bankruptcy in December 1991.  The bankruptcy resulted from their dealings with respect to the shop at the Northgate Shopping Centre. 

14.     Annexed to Mr Stocks' application for waiver of fees were statements from collection agencies and banks confirming the outstanding credit card liabilities and seeking repayment. 

15.     Absent from the Statement of Affairs form is provision for detail of the applicants' weekly and household expenditure.  It was Mrs Stocks' evidence that she contributes approximately $100 each week towards repayment of her credit card, rent often for the full weekly amount of $280, food, some occasional clothing, chemist's expenses including prescriptions and some household replacements.  Her wages are deposited into her bank account which has a current balance of approximately $200, however her funds are totally expended on the abovementioned items.   The parties owe a debt to the Guilford Young College with respect to their daughters past school fees which they are repaying in the sum of $15 each week. 

16.     Mr Stocks informed the Tribunal that his credit cards have now been cancelled and he has no access to further credit.  Mr Stocks is endeavouring to meet some of his credit card repayments with cash contributions from his weekly income. 

17.     Mr and Mr Stocks estimated their weekly expenditure as follows:

Rent  $280  Food  $300  Hydro  $ 65  Telstra  $ 65  Private Health  $ 58  Guilford Young College     $ 15  Austar  $ 16  Miscellaneous  $100  Credit card payments         $100  TOTAL  $999  

Their total net income is currently $1,136.  The total outstanding on their credit cards is $35,589.54. 

Legislation:

18.     The applicable legislative provision is Regulation 10 of the High Court of Australia (Fees) Regulations 2004, Waiver of Part of a Fee which states:

"If, having regard to the income, day to day living expenses, liability and assets of a person liable to pay a fee specified in Part 1 or 3 of Schedule 1, a Registrar is of the opinion that payment of the fee would cause financial hardship to the person, the Registrar may waive payment of two-thirds of the amount of the fee".

19.     Schedule 1 of the Regulations set the fee at the relevant time at $1,277.  Two-thirds of this fee is therefore $851.33. 

20.     The issue for the Tribunal to determine is whether payment of $851.33 would cause financial hardship to either or both of the applicants, having regard to their income, day to day living expenses, liabilities and assets.  As each of the applicants is liable to pay the fee, the Tribunal must consider their individual financial circumstances and the impact of payment of the fee of $851.33.

21.     Mr Stocks' net weekly income is in the order of $516.  If one half of the weekly expenses of $999 is deducted from this sum, in the Tribunal's view, there is little if any capacity for him to meet the filing fee.  As he stated, Mr Stocks currently has no access to any further credit.  Similarly in the case of Mrs Stocks, if one half of the weekly expenses is deducted from her current net weekly income of $620, there is little if any capacity to meet the filing fee. 

22.     Deputy President Hall in Re Paterson and Department of Arts, Heritage and Environment (No. 2) 8 ALD 227 when considering the term financial hardship said at page 238:

"..."financial hardship" means hardship caused to the applicant by reason of the financial burden of being obliged to meet the costs of the application from its own resources.  It is conceded by the applicant that such is not the case.  It is not enough, in my opinion, for the applicant to assert that if it is obliged to meet its own costs, it will deplete the funds otherwise available to it to pursue its objects.  Every successful applicant, no matter how wealthy, would suffer financial hardship on that basis".

23.     Senior Member L Hastwell in the decision Dedes and Commissioner of Taxation [2008] AATA 331 reviewed several cases which were concerned with the meaning of the term "financial hardship" in the context of the exercise of a discretion to remit a fee. Member Hastwell referred to the Tribunal's decision in Re Bailey and Commonwealth Tertiary Education Commission (1986) 12 ALD 165 where it was stated at page 167:

"... financial hardship surely amounts to more than that a person, irrespective of his financial situation, has to meet a charge from his own resources".

24.     In the Dedes decision the Tribunal concluded that the applicant had sufficient discretionary income to spend funds on entertainment, private health cover and costs of owning and running a vehicle.  Senior Member Hastwell concluded that the applicants were not suffering any appreciable financial hardship in their lifestyle at the present time.  They were debt free and whilst they may be inconvenienced by paying the filing fee, the Tribunal concluded that it would not cause financial hardship.  The Tribunal considered that payment of the fee may result in a temporary inconvenience but not any appreciable detriment and may require the applicants to cut down on some other non-essential items of expenditure for a period of time to cover the cost of the fee. 

25.     These circumstances can be clearly contrasted with those of the applicants.  Their joint weekly expenditure is modest and is only just met from their combined net weekly income.  They have considerable credit card liabilities which they are somehow endeavouring to repay.  Not included are the considerable costs associated with their recent litigation which are not particularised.  The Tribunal accepts their evidence that there is every reasonable likelihood that these further liabilities may again force them into bankruptcy.  There is no evidence or suggestion that their liabilities have been recklessly or irresponsibly incurred.  The applicants own no assets apart from their furniture.

26.     The Tribunal is satisfied on the basis of evidence as to the applicants circumstances as they were in April 2008, that payment of the filing fee would cause each of the applicants financial hardship.  There is simply no capacity to meet payment of the fee from their net weekly income, having regard to their day to day living expenses and outstanding liabilities.  They have no disposable assets or access to credit.   Regulation 10 however limits the discretion to waive payment of only two-thirds of the amount of the fee.  The applicants are still required to pay the balance of $425.67.

27.     The decision of the Tribunal is accordingly to set aside the decision under review and order that two-thirds of the fees payable by the applicants with respect to the application for special leave to appeal to the High Court of Australia be waived.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member)

Signed:  R Hunt (Administrative Assistant)

Date/s of Hearing  3 October 2008
Date of Decision  31 October 2008
Counsel for the Applicant         Mr R Browne
Solicitor for the Applicant          Fitzgerald & Browne
Solicitor for the Respondent     No representation & no appearance