Rosson v Tesoriero

LEGISLATIVE BACKGROUND 13 It is necessary to set out some matters of legislative history concerning the 2004 Regulations in order to more fully understand the context in which the respondent made the December 2010 decision. 14 Section 60(1) of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) provides that the Governor-General may make regulations prescribing matter required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act and, in particular, prescribing the fees to be paid in respect of proceedings in the Court or the service or execution of the process of the Court by officers of the Court. 15 Pursuant to that power, the Governor-General made the Federal Court of Australia Regulations 1978 (Cth) (the 1978 Regulations) which prescribed certain fees in relation to proceedings in the Court and made provisions in relation to payment of those fees. The 1978 Regulations were replaced by the 2004 Regulations which came into effect (with one exception not presently relevant) on 1 November 2004. It was considered that the 2004 Regulations would be easier to understand and use. They also abolished or changed the amount of some fees and made changes regarding their payment: Explanatory Statement to Statutory Rules 2004 No. 291. 16 In their original form the 2004 Regulations provided for the imposition of filing fees, setting-down fees and hearing fees, and imposed liability on identified persons to pay those fees: regs 4, 5, 6 and 7. Regulation 9 provided for the time when those fees were to be paid. 17 Leaving aside the position of setting-down fees and hearing fees, the prima facie position in relation to the filing of documents and the provision of services was that the prescribed fee was payable before the document was filed or the service provided. Subject to regs 10, 12 and 14(2) which I will summarise below, reg 14(1) provided that if a prescribed fee was unpaid (meaning, in effect, not fully paid), the document must not be filed or the service provided. 18 There were, however, exceptions to this prima facie position. First, reg 10 provided that the Registrar (which term also included a Deputy District Registrar) could defer the payment of all or part of certain fees in certain circumstances. If deferred, the fee was required to be paid within 30 days after the date of deferral or such other period specified in writing by the Registrar: reg 10(3). 19 Secondly, reg 11 provided certain exemptions from liability to pay a fee. Subject to exceptions that are not presently relevant, reg 11(1) provided that a fee was not payable if it was one to which clause 1 of Schedule 3 of the 2004 Regulations applied. 20 By way of illustration, an exemption from liability was provided by clause 1 of Schedule 3 of the 2004 Regulations if the person otherwise liable to pay the fee had been granted legal aid for the proceeding under a legal aid scheme or service established under Commonwealth, State or Territory law, or approved by the Attorney-General. Similarly, an exemption from liability was provided to a person otherwise liable to pay the fee if that person was serving a sentence of imprisonment, or was otherwise lawfully detained in a public institution. It will be immediately apparent that, under that regime, the applicant would not have been liable to pay a fee for filing his s 476A application. 21 Importantly, clause 1 of Schedule 3 of the 2004 Regulations also conferred a discretion on the Registrar or an authorised officer to waive payment of a fee on the ground of financial hardship. 22 Thirdly, reg 12 made special provision for approved users of court services. An approved user who had incurred liability for fees was entitled to be invoiced for such of those fees as remained unpaid: reg 12(2). An approved user was required to pay those fees within 7 working days after receiving the invoice: reg 12(3). Failure to pay the invoiced fees within time would result in that user ceasing to have the benefit of the regime provided by reg 12: reg 12(4). 23 Fourthly, reg 13 provided that, with the written authorisation of the Registrar, a user of court services could pay an amount to the Court on account of fees for which liability was expected to arise. Any fees payable by the user would then be charged against that amount until the amount was exhausted: reg 13(3). 24 Finally, reg 14(2) provided that "(t)he Court, a Judge or the Registrar, may allow the filing of a document or the provision of a service even if the relevant fee is unpaid". It is clear that this was a free-standing provision constituting a discrete exception to the prima facie position that fees were payable before the document was filed or the service provided. 25 However, in all cases, a fee that was payable and remained unpaid was recoverable as a debt due to the Commonwealth: reg 14(4). Regulation 14(4) provided as follows: If any fee remains unpaid after the time mentioned in regulation 9 or the end of the period mentioned in subregulation 10(3) or 12(3) or, if subregulation (2) applies, after the filing of the document or the provision of the service, the unpaid fee is recoverable by the Commonwealth as a debt due to the Commonwealth. 26 The 2004 Regulations were amended by the Federal Court of Australia Amendment Regulations 2010 (No. 2) (Cth) (the 2010 Regulations). The relevant substantive effect of the 2010 Regulations, which commenced on 1 November 2010, was to replace fee exemptions and waivers with reduced flat fees. The accompanying Explanatory Statement explained: These changes are part of a package of measures that government is implementing in the 2010-2011 Budget for its Strategic Framework for Access to Justice, which is based on principles of accessibility, appropriateness, equity, efficiency and effectiveness. The access to justice measures in the 2010-2011 Budget are focussed on directing people away from high-cost litigation to early intervention services, which help people resolve disputes before they escalate into larger problems. 27 The 2010 Regulations amended clause 1 of Schedule 3 of the 2004 Regulations to remove the system of fee exemptions and fee waivers provided through that clause. That system was then replaced with the system of reduced fees provided by regs 11A and 11B. Regulation 11A replicates the classes of disadvantaged persons formerly identified in clause 1 of Schedule 3 who, prior to the amendments, were entitled to a fee exemption. Regulation 11B replicates the conditions for financial hardship which formerly applied in relation to fee waivers. In each case, the Registrar or an authorised officer continues to carry out an assessment of whether disadvantage or financial hardship exists in order to determine whether a person (including a corporation) is eligible to pay a reduced fee or reduced fees. 28 Subject to these and some other amendments that are not presently relevant, the system put in place by the 2004 Regulations remains substantially intact. As a result, it remains to be the case that, under reg 14(2), the Court, a Judge or the Registrar can allow the filing of a document or the provision of a service even if the relevant fee is unpaid. That fee (as with other unpaid fees that are due) is nevertheless recoverable by the Commonwealth as a debt due to the Commonwealth after payment has fallen due.

The decision UNDER REVIEW 29 As I have noted, although the respondent was satisfied that the applicant met the requirements of reg 11A in relation to eligibility to pay a reduced fee, he was not satisfied that it was appropriate to defer payment of the reduced fee. He also did not think that reg 14(2) could apply in the circumstances. The only matter before me is whether the respondent erred in his decision with respect to the application of reg 14(2) in a way that is amenable to judicial review. 30 In relation to that matter, the respondent's reasons are captured in the following paragraphs of his written reasons of 20 December 2010. On page four of those reasons the respondent said: In my view sub regulation 14(2) does not of itself grant a separate discretion to file an application. The sub regulation is headed "REGULATION 14 WHAT HAPPENS IF FEES ARE UNPAID". It supports the proposition that if an applicable fee is not paid then the matter is still on foot and the fee becomes a debt due to the Commonwealth. For example, if an Application is accepted pursuant to a discretion under sub regulation 10(3), on the condition that the fee be payable within 30 days and the Applicant at the end of that period was unable to pay the fee then the proceeding would still be considered validly filed. The Explanatory Statement to sub regulation 14(2) [Statutory Rules 2004 No. 291] seems to indicate that the sub rule was inserted to give the Court the power to exercise its discretion in specific situations and not to give a blanket authority to accept documents without the requisite fee being paid. Also, sub regulation 14(2) appears to contemplate that a Registrar can exercise judicial power under section 35A of the Federal Court of Australia Act 1976. This power is only exercisable in relation to a "proceeding" that is, a matter already commenced and is only exercised in narrow areas of specific delegation by a judge such as in Bankruptcy and Corporations Law matters. The Application in question is not in the area that a Registrar has a delegation therefore, a Registrar would not have the authority to exercise that power. 31 On page five of those reasons the respondent said: However, I must assume that it was the intention of Government when enacting the amendments that it was anticipated that if a litigant to a matter was eligible to pay the reduce [sic] fee then they would be required to pay otherwise there would not have been a need to make the amendments. To defer the payment pursuant to Regulation 10(3) or to allow the filing of an application notwithstanding non payment of the filing fee pursuant to Regulation 14(2) as is requested by Legal Aid would defeat that purpose. 32 The respondent's reasoning in relation to the application of reg 14(2) appears to have been as follows: Regulation 14(2) is not a separate source of power under the 2004 Regulations which, by a favourable exercise of discretion, would permit the filing of the s 476A application if the relevant fee was not paid. Alternatively, reg 14(2) is a limited source of power which confers a discretion only in specific situations. In any event, the power under reg 14(2) is not one that can be exercised by the respondent because, in his capacity, the exercise of the power can only take place in the context of exercising power under s 35A of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act), relevantly when proceedings are already on foot. Furthermore, the power conferred by reg 14(2) is circumscribed by a person's ability to pay the fee when due. 33 The applicant contended that this reasoning, and hence the December 2010 decision based on this reasoning, involved a number of errors of law. First, the applicant contended that the respondent erred in concluding that reg 14(2) did not grant a separate discretion to allow the filing of an application without payment of a fee. In that connection the applicant submitted that reg 14(2) conferred a broad discretion which was not limited to "specific situations". Secondly, the applicant submitted that, to the extent that the respondent's reasons may have suggested otherwise, any decision by him concerning the exercise of the discretion conferred by reg 14(2) was a decision of an administrative character. It was implicit in this submission that the exercise of the discretion conferred by reg 14(2) was not limited to the context of exercising power under s 35A of the Federal Court Act. Thirdly, the applicant submitted that the respondent erred in finding that the power conferred by reg 14(2) was circumscribed by a person's ability to pay the fee when due.

CONSIDERATION 34 In my respectful view, the respondent erred in law in his assessment of the nature and scope of the discretion conferred by reg 14(2) for the purpose of making the December 2010 decision. The December 2010 decision thus involved an error of law: s 5(1)(f) of the ADJR Act. 35 First, reg 14(2) confers a broad discretion that is exercisable according to its terms: the Court, a Judge or the Registrar (as defined) may allow the filing of a document or the provision of a service even if the relevant fee is unpaid. To so construe reg 14(2) is to give the provision its ordinary and grammatical meaning which is consistent and harmonious with the other provisions of the 2004 Regulations and which can be intelligibly applied to the subject matter with which it deals: Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297 at 305; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384. Within the 2004 Regulations, reg 14(2) is a separate source of power under which a favourable exercise of discretion would have permitted the filing of the applicant's s 476A application even if the relevant fee could not be paid, and was not paid, as otherwise required by reg 9 and reg 14(1). 36 Secondly, the discretion conferred by reg 14(2) is not one that is limited to particular situations. There is nothing in the wording of reg 14 or of the 2004 Regulations more generally that would so confine the scope of the power thereby conferred. In reasoning that reg 14(2) was limited to particular situations the respondent did not identify the scope of what those situations would be. It is implicit in his conclusion, however, that he did not regard the present case to be one of those situations. 37 The respondent sought to draw support for his general conclusion from the Explanatory Statement accompanying the 2004 Regulations. However, a consideration of the Explanatory Statement shows that it does not provide the support which the respondent thought it did. Indeed, if anything, it supports the construction which I have found. Relevantly, the Explanatory Statement states: [Regulation] 14(2) enables the Court, a [J]udge or the Registrar, to allow the filing of a document or provision of a service even if the fee is unpaid. This change allows the Court to deal with the situation where more than one party is liable to pay the fee (that is, it has been apportioned between the parties) and one of those parties does not pay. It also give the Court greater discretion generally to allow proceedings to go ahead despite fees being unpaid. Under subregulation 14(4) unpaid fees are recoverable as a debt due to the Commonwealth. [Emphasis added] 38 Thirdly, there is nothing in the wording of reg 14 or of the 2004 Regulations more generally that would limit the exercise by the respondent of the discretion conferred by reg 14(2) to cases where a Registrar (as defined) is exercising the powers of the Court under s 35A of the Federal Court Act. In particular, the discretion is not limited to permitting the filing of a document or the provision of a service in relation to a proceeding that has already commenced. In short, there is nothing in the circumstances of the present matter that would have acted as a fetter of that kind on the power of the respondent to exercise the discretion. 39 Fourthly, there is nothing in the wording of reg 14 or of the 2004 Regulations more generally by which the exercise of the discretion conferred by reg 14(2) is circumscribed by a person's ability to pay the fee (as judged by his or her or, indeed, its particular financial circumstances) when required by the 2004 Regulations. 40 In the present case it is important to bear in mind that no question arises as to the existence of any power to waive the reduced fee for which the applicant was liable. There is no such relevant power. The respondent was not called upon to exercise any such power. Had the respondent exercised the discretion under reg 14(2) favourably to the applicant, the applicant would have remained liable to pay the reduced fee. In this connection, reg 14(4) provides its own machinery for recovery. Had the respondent exercised the discretion favourably to the applicant, the Commonwealth could have sought, if it chose, to recover the unpaid fee as a debt due to the Commonwealth. Whether it would have been appropriate or feasible to do so would have involved a separate decision which, no doubt, would have been informed by circumstances existing at the time that that decision would have been required to have been made. 41 The exercise of the discretion under reg 14(2) involves a departure from the requirement that a document must not be filed or a service provided unless the fee is paid. The application of reg 14(2) proceeds on the basis that there is some reason, actual or proffered, why the fee cannot be paid when due. It can have no other starting point. The application of reg 14(2) requires that reason to be identified and placed in the balance with all other relevant facts, matters or circumstances properly bearing on the exercise of the discretion in the particular case, including the requirement that, in the normal course, a document must not be filed or a service provided if the relevant fee is unpaid. Such reason may be the person's inability to pay the fee when required by the 2004 Regulations because of that person's particular financial circumstances. 42 In this connection, there is no reason to suppose, for example, that, as a matter of ordinary language, a reference to "the relevant fee" in reg 14(2) does not include a reduced fee for which a person might be eligible under reg 11B on grounds of financial hardship. Therefore, a present inability to pay a relevant fee, when due, because of financial hardship, could not be a circumstance which, of itself, disqualifies a person from the scope or operation of reg 14(2). Whether, in such a case, the particular circumstances would warrant the favourable exercise of the discretion is another matter. 43 The point of present importance is that reg 14(2) does not, in terms, focus on the character of the relevant fee (other than that it is a fee for the filing of a document or the provision of a service) or on the reason why the fee is unpaid. It simply focuses on the fact that the fee is unpaid. 44 In the present case the respondent, in error, reasoned that reg 14(2) could not apply in circumstances where the reason why payment could not be made at the required time was an inability to pay because of personal financial circumstances. That error included the conclusion that reg 14(2) could not apply in the case of a reduced fee. 45 For these various reasons, the respondent placed impermissible glosses on the power conferred by reg 14(2) which limited the proper scope of its operation in relation to the request made by the applicant. The December 2010 decision should be set aside with effect from the date on which it was made.

other matters 46 There are three additional matters to which I should refer, concerning the exercise of jurisdiction under the ADJR Act. 47 First, the respondent's legal representative drew attention to the fact that, prior to the commencement of this proceeding, the reduced fee had in fact been paid, thereby enabling the s 476A application to be filed. Although no substantive submission was made, the matter was drawn to my attention as being relevant to a consideration of whether the applicant had standing under s 5 of the ADJR Act to seek an order of review. In light of that development I gave the applicant the opportunity to make additional submissions in writing on the question of standing. 48 The applicant submitted that he is "a person aggrieved" for the purposes of s 5 of the ADJR Act because, had Legal Aid NSW not intervened, the refusal to accept his s 476A application without payment of the relevant fee, in circumstances where he lacked the means to pay the fee, would have resulted in his deportation from Australia and deprived him of the opportunity to have the lawfulness of the decision of the Administrative Appeals Tribunal reviewed. Also, at the time of the commencement of the present proceeding, he was (and remains) at risk of a determination by Legal Aid NSW under s 46 of the Legal Aid Commission Act 1979 (NSW) (the Legal Aid Act) requiring him to repay the amount that was advanced on 15 December 2010 in order to protect his interests pending the determination of his s 476A application. 49 There is no question in my mind that the applicant was a person aggrieved by the making of the December 2010 decision at the time it was made. At the hearing, the respondent did not seek to suggest otherwise. The applicant's grievance was that reg 14(2) had not been applied according to law in relation to his request that his s 476A application be filed without the relevant fee being paid at that time. As events have now shown, that grievance was both legitimate and substantial. It was, moreover, a grievance that was peculiar to the applicant. I accept the applicant's submission that the respondent's refusal raised a substantial question of the applicant's access to justice. The question is whether that substantial grievance was removed simply because Legal Aid NSW adopted the expedient of paying the filing fee on the applicant's behalf, thereby preserving the applicant's legal rights by allowing his s 476A application to be filed within time. 50 In my view that event did not alter the applicant's standing to seek review. It did not, in any real sense, remove his existing grievance in relation to the December 2010 decision. Any other view would mean that an otherwise legitimate entitlement to seek review of a decision would be lost simply because, by reason of the decision itself, an applicant for relief is, in a real and practical sense, obliged to comply with the decision or lose an entitlement to exercise an important legal right. 51 As a matter of general principle, an applicant's standing to seek judicial review of an administrative decision should not be set at nought simply because he or she takes a step that seeks to avoid a jeopardy that the decision itself presents. This is even more so where, on a final hearing, grounds for review have been established. 52 In any event, the matter is put beyond doubt in the present case by the fact that, at the commencement of the present proceeding, the applicant was, and remains, contingently liable to Legal Aid NSW under the Legal Aid Act to reimburse it for the fee that was paid: see the analysis in Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 54 FLR 421 at 437-438. However, even absent this consideration, I am of the view that the applicant had standing under s 5 of the ADJR Act to commence the present proceeding. 53 Secondly, the applicant raised the prospect that some elements of the respondent's reasoning might suggest that the December 2010 decision was not a decision of an administrative character and, therefore, not a decision to which the ADJR Act applies. In this connection the applicant relied on Manolakis v District Registrar, South Australia District Registry, Federal Court of Australia (2008) 170 FCR 426 and Satchithanantham v National Australia Bank Ltd (2010) 268 ALR 222 (both cases dealing with the power under Order 46 rule 7A to refuse to accept a document for filing) as supporting the submission that the December 2010 decision was of an administrative character. 54 I do not find it necessary to dwell on the prospect raised in the applicant's submissions. There is no challenge by the respondent concerning the application of the ADJR Act to the 2010 decision on this basis. I am satisfied, in any event, that the December 2010 decision was of an administrative character. 55 Thirdly, it is clear that the present application was not filed within time. An affidavit has been furnished setting out the reasons and circumstances for not filing the application within time. The application seeks an extension of time accordingly. I am satisfied that this is an appropriate case in which to extend the time for filing the application. 56 For completeness, there is a final matter to which I should refer. Since the hearing of this matter the 2004 Regulations have been further amended by the Federal Court of Australia Amendment Regulations 2011 (No. 1) (Cth) to make express provision enabling the Registrar (as defined) to grant the deferral of a reduced fee. Notwithstanding this further amendment to the 2004 Regulations, the power in reg 14(2) remains.

disposition 57 I will make orders that time be extended for filing the present application and that the December 2010 decision be set aside. As I have indicated, I will hear the parties further on what, if any, consequential orders should be made. I will also hear the parties on the question of costs. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates.