PARTRIDGE v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P 13 December 1993, 13 December 1993 [1993] NSWCA 206 PRACTICE and PROCEDURE — Court of Appeal — filing fees — delay in payment of — application for extension of time for filing appeal — stake on appeal worth approximately $30,000 — filing fee of $1550 required — point in issue allegedly to be authoritatively determined in other litigation — application for leave to postpone filing of appeal until three months after determination of other litigation — application opposed — held: (refusing the application): The application should be refused because (a) It would commit the rights and duties of the opponent to uncertainty over an indefinite period; (b) The claimant had recovered a judgment of more than $2 million and was not bereft of funds for the payment of the filing fee in this case; and (c) Doubt existed as to whether the discretion sought could properly be exercised in such a case. DELEGATED LEGISLATION — filing fees for appeals — filing fee of $1550 to bring appeal provided by Supreme Court Act 1970 — whether such "extremely substantial" fees represent an unlawful impediment to the exercise of the right to appeal provided Supreme Court Act 1970 — observations by Kirby P (without deciding the point) on the validity of the filing fees fixed by the Executive. Supreme Court Rules Pt51 R5(2). ORDERS Motion dismissed with costs. Kirby P The common law does not provide a right of appeal. Rights of appeal must be found in statutory laws. Relevantly, rights of appeal from decisions of judges of the Supreme Court to this Court are found in the Supreme Court Act 1970. Such rights are thus provided by Parliament. There was a time when filing fees for the bringing of appeals to this Court were modest. The Executive Government, in its wisdom, has now provided for filing fees which are extremely substantial. The filing of an appeal to this Court, from a decision of a judge of a Division of the Supreme Court, requires that the appellant deposit, in the normal case, the sum of $1550 as the filing fee. This is a matter which has agitated the judges of the Supreme Court. It was also a matter of concern to the Parliament. Provisions relating to filing fees in this Court were at one stage disallowed. But at the moment, the filing fee must be paid for the bringing of an appeal to this Court. One day, a question may arise as to the validity of the Executive Government's action in providing such a very high filing fee. They stand, at least in some cases, for people of modest means, as an impediment to the exercise by them of the right which Parliament has provided for an appeal to this Court. See In re Count Tolstoy (1993) Media Law and Practice 122. In that decision, the European Commission of Human Rights admitted a claim that a party had effectively been prevented from exercising his legal right to an appeal due to the precondition that a large security of costs be lodged. The question of the validity of the filing fee is not presently before me. I simply mention it again, as I have done on previous 2 UNREPORTED JUDGMENTS occasions, in case somebody may be listening. I express no concluded opinion concerning the validity of the present fee. The matter before the Court is, in terms, an application brought by Ms Donna Partridge that she should have a special privilege in relation to the bringing of her appeal. The motion seeks an order from the Court that the time within which she should be required to comply with Pt51 R5(2) SCR be extended to a period of three months after the final determination of the proceedings in the case of Rozniak v Government Insurance Office of New South Wales. I am dealing with the motion pursuant to my powers under s46 of the Supreme Court Act. Ms Partridge, as with the plaintiff in Rozniak, is severely injured. I have been told that she has suffered severe brain damage. Ha estate is under the control of the Protective Commissioner. Her claim against the opponent was heard by Dunford J. His Honour, in reasons delivered on 17 September 1993, ordered that judgment be entered in favour of Ms Partridge in a very large sum, namely $2,003,200.33. It is Ms Partridge who wishes to appeal against parts of the judgment. The amount at stake in respect of those components has not been precisely defined. However, the solicitor for Ms Partridge has informed the Court that the amount in dispute is in the order of $30,000. It can be well understood that there would be a certain reluctance in paying a filing fee of $1500, merely to open the door of the Court, in order to litigate a matter in issue worth $30,000. On the other hand, whilst a very large judgment has been recovered, an amount of $30,000 is still not to be disdained. If Ms Partridge is entitled to such an amount, she should have the right to secure it by legal process. Ms Partridge seeks, by her motion, an order that she should not have to file her appeal, and hence pay the filing fee, until after the matter of Rozniak v The Government Insurance Office is determined, with an additional period of grace of three months. It is said that the matter in issue in her appeal will be authoritatively determined by the vehicle of Rozniak. There are three difficulties in acceding to this request, which is also opposed by the New South Wales Ministerial Corporation, the opponent. The first difficulty is that, by the affidavit of Mr James Yeend, solicitor, which has been read before me, it appears that there is no certainty at this stage as to when the matter of Rozniak will be retried before Badgery-Parker J. That retrial was ordered by this Court. The High Court of Australia refused special leave to appeal from the order of this Court. In due course the retrial will be heard. But its date is uncertain. Mr Kelly, who is also the solicitor for Mr Rozniak, has informed the Court that he expects that the matter will be heard in April 1994 by Badgery-Parker J. However, this is not certain. In any case, the order which is sought refers to the final determination of the proceedings in the Rozniak litigation. Those proceedings have already been greatly delayed. It might be expected that the full gamut of appeals will again be attempted after the retrial, ie to this Court and then to the High Court of Australia. That could mean that there would be a further delay of more than three years before the proceedings in Rozniak are complete. And then the claimant wants a further three months within which to decide whether to appeal. These delays leave the opponent in a state of uncertainty as to its potential legal obligations - a state which it opposes. The second difficulty is that, whilst it is true that the filing fee is substantial, it is also true that the Protective Commission has the invested sum of more than $2 million in relation to which the filing fee in this particular case is not a UWAARTRIDGE v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION (Kirb$ P) significant amount. If Ms Partridge has a good point, and it succeeds in the appeal, she will of course recover the filing fee. A different view might be taken in a different case. However, this is not a case where the would be appellant is bereft of funds. Thirdly, it is at least questionable, in my view, whether the discretion sought would be properly exercised so as to relieve Ms Partridge of the obligation to file her notice of appeal, when so many other persons, some of them in as difficult, or more difficult, a financial position than she, are obliged to do so, by the fees which the Executive Government has fixed. In such circumstances, I do not consider that the relief that is sought, ingenious, and properly brought though it was, should be given. I would therefore dismiss the motion, and order that the claimant, Ms Partridge, pay the costs that have been incurred by it. In doing this, I would not wish to infringe upon the discretion of the Registrar. By reason of the very high filing fees, the Registrar of the Court of Appeal exercises, in appropriate cases, a discretion which may, or may not, be available in this case. That would be a matter for him. I merely indicate that in dismissing the application for the form of relief sought, by the orders claimed, I am not, of course, impinging upon the Registrar's exercise of the administrative discretions, which reside in him. The order which I make, therefore, is that the motion is dismissed with costs. Motion dismissed with costs. Counsel for the Claimant: TD Kelly (Solr) Instructed by: TD Kelly and Co Counsel for the Opponent: GA Laughton Instructed by: GM Meadows