Fee waiver for corporations in the Supreme Court of Victoria

Some of our clients have asked us whether a company can apply for a fee waiver in the Supreme Court of Victoria for financial hardship on the basis that the company is in liquidation (and therefore limited or no funds are available for commencing proceedings).

In summary: a company cannot apply for a fee waiver in the Supreme Court, but may still be eligible for a fee reduction in the Federal Court.

Section 129(3) of the Supreme Court Act 1986 (Vic)

Section 129(3) of the Supreme Court Act 1986 (Vic) states: '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 subsection (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, that prescribed fee is not payable.'

Vasiliou, Re [2010] VSCA 361

In Vasiliou, Vickery AJA in the Victorian Court of Appeal held that section 129(3) does not permit a waiver of fees to be extended to a corporation. While section 38 of the Interpretation of Legislation Act 1984 (Vic) states that unless a contrary intention appears, 'person' includes a body corporate, His Honour held that a contrary intention does appear in s129(3) because:

1. a company cannot incur day to day living expenses in the way contemplated by the ordinary and natural meaning of those terms; and 

2. had the intention been to extend s129(3) to include a company, the pronoun 'it' would have been used together with 'him or her'.

Federal Court

However, Regulation 11B of the Federal Court of Australia Regulations 2004 makes specific reference to a 'person or corporation' in the context of the reduction of fees for hardship.

The Registrar or an authorised officer may apply the reduced fee (currently $100) if, having regard to the income, day-to-day living expenses, liabilities and assets of the individual or corporation liable to pay the fee, the Registrar or authorised officer considers that payment of the fee would cause financial hardship to the individual or corporation.

For more information on the above or on any aspect of litigation, please contact Wayne Kelcey, Partner and Head of Commercial Litigation.

Author: Alexandra Doig, Cornwall Stodart