Abani and Abani and Anor (SSAT Appeal)
[2016] FCCA 2054
•15 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ABANI & ABANI & ANOR (SSAT APPEAL) | [2016] FCCA 2054 |
| Catchwords: CHILD SUPPORT – Appeal – Social Security Appeals Tribunal – Appeal from decision of the Social Security Appeals Tribunal – Notice of Appeal – Amended Notice of Appeal – Further Amended Notice of Appeal – where Appellant filed in Court a Further Amended Notice of Appeal on the day of the hearing – merits review – procedural fairness – whether the Appellant was denied procedural fairness – whether the Tribunal failed to have regard to a relevant consideration under Child Support (Assessment) Act 1989 (Cth), s.117 – natural justice – whether Appellant was denied natural justice – bias – whether Tribunal exhibited bias against the Appellant – whether Tribunal ignored relevant material – whether Tribunal erred in law by identifying wrong issues – whether decision “perverse” or “unreasonable” or “otherwise offending logic” – whether Tribunal erred in law by failing to apply Corporations Act 2001 (Cth), s.95A – no error of law – Appeal dismissed. |
| Legislation: Child Support (Assessment) Act 1989 (Cth), ss.3, 4, 98B, 98C, 98S, 117 Child Support (Registration and Collection) Act 1988 (Cth), ss. 110B, 110F, 111C Corporations Act 2001 (Cth), ss.95A, 588, 588FA, 588FC, 588FDA |
| Cases cited: Abani & Abani & Anor (SSAT Appeal) [2014] FCCA 2058 Carey & Carey (1994) 18 Fam LR 116; FLC 92-489 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 DJM & JLM [1998] FamCA 97 Dwyer & McGuire (1993) FLC 92-420 Gyselman & Gyselman (1992) 15 Fam LR 219; FLC 92-279 Minister for Aboriginal Affairs v Peko-Wallsend Pty Ltd (1986) 162 CLR 2 Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 Sandell v Porter (1966) 115 CLR 666 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 36 Schmidt & Geller (SSAT Appeal) [2012] FMCAfam 735 Scott & Scott (1994) 17 Fam LR 420; FLC 92-457 SZLXP v Minister for Immigration & Anor [2008] FMCA 1247 SZRPA v Minister for Immigration and Citizenship [2012] FMCA 91 |
| Appellant: | MR ABANI |
| First Respondent: | MS ABANI |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | SYC 849 of 2014 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 5 September 2014 |
| Date of Last Submission: | 3 October 2014 |
| Delivered at: | Sydney |
| Orders pronounced: | 24 June 2015 |
| Delivered on: | 15 July 2016 |
REPRESENTATION
| Appellant: | In person |
| First Respondent: | In person |
| Counsel for the Second Respondent: | Mr Kaplan |
| Solicitors for the Second Respondent: | Sparke Helmore Lawyers |
ORDERS
The Amended Notice of Appeal filed on 26 June 2014 as further amended on 5 September 2014 is dismissed.
The decision of the Social Security Appeals Tribunal made on 7 January 2014 and posted on 17 January 2014 is affirmed.
Orders (1) and (2) made on 5 September 2014 conditionally staying the operation of the said decision of the Social Security Appeals Tribunal are discharged.
Written submissions in support of any application for costs and any affidavits setting out the way in which the costs sought are quantified are to be filed and served within 28 days of the date of these Orders.
Any written submissions in opposition to any application for costs are to be filed and served within a further period of 14 days.
IT IS NOTED that publication of this judgment under the pseudonym Abani & Abani & Anor (SSAT Appeal) is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 849 of 2014
| MR ABANI |
Appellant
And
| MS ABANI |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Appeal
This is an Appeal against a decision of the Social Security Appeals Tribunal made on 7th January 2014 and posted on 17th January 2014.
The Tribunal in its decision set aside the decision under review and, in substitution, decided that for the period 1st April 2013 to 31st December 2014 the Appellant’s adjusted taxable income was set at $90,000.00.
Background
The Tribunal set out the background to this matter at paragraphs [1] to [14] of the Reasons for Decision.
The Appellant and the First Respondent are the parents of five children born on (omitted) 2003, (omitted) 2005, (omitted) 2007, (omitted) 2009 and (omitted) 2010. A child support assessment was first made on 7th September 2012.
For the child support period from 7th September 2012 to 6th December 2013 the Appellant was assessed to pay an annual rate of child support $0 based on an administrative assessment using the following adjusted taxable incomes:
a)The Appellant’s provisional income $20,000.00
b)The First Respondent’s provisional income $104.00
On 26th March 2013 the First Respondent applied to the Child Support Agency for an increase to the assessed rate of child support on the ground that in the special circumstances of the case the administrative assessment resulted in an unjust and inequitable level of child support because of the Appellant’s income, property and financial resources. The Appellant did not agree.
On 20th May 2013 a senior case officer considered the departure application and determined that the reason had been established. Accordingly, the senior case officer decided that for the period 1st April 2013 to 31st December 2015 the Appellant’s adjusted taxable income was set at $81,652.00. This meant that the Appellant was assessed to pay child support at an annual rate of $12,170.00.
The Appellant objected to the decision. On 30th August 2013 a Child Support objections officer reconsidered the departure application and allowed the objection.
The objections officer agreed that there should be a departure from the administrative assessment and decided that for the period of 1st April 2013 to 31st December 2015 the Appellant’s adjusted taxable income was set at $55,000.00. This meant that the Appellant was assessed to pay an annual rate of child support of $6,845.00.
On 16th September 2013 the First Respondent lodged an application for review of the decision with the Social Security Appeals Tribunal.
Both the Appellant and the First Respondent attended a hearing of the Tribunal on 7th January 2014.
The Tribunal Decision
In its decision, the Tribunal considered the requirements for a determination to depart from administrative assessment of child support as provided by s.98B of the Child Support (Assessment) Act 1989 (Cth), noting that under s.98C of the Act the Registrar, and the Tribunal standing in place of the Registrar, must follow a three step process.
The Registrar (or the Tribunal, as the cased may be), must be satisfied that:
a)one or more of the grounds for departure in subsection 117(2) exists; and
b)that it would be just and equitable as regards the child, the liable parent and the carer entitled to child support; and
c)otherwise proper
to make a particular determination.
The Tribunal also noted that if it were so satisfied, it must make one of the determinations prescribed in s.98S of the Act.
The Tribunal then proceeded to consider whether the ground for departure from administrative assessment of child support claimed by the First Respondent existed, being that in the special circumstances of the case an administrative assessment would result in an unjust and inequitable level of child support because of the Appellant’s income, property and financial resources. This ground for departure is found in subparagraph 117(2)(c)(ia) of the Act.
The Tribunal then considered the meaning of the term “special circumstances”, following the decision of the Full Court of the Family Court in Gyselman & Gyselman[1] which said, I summary, that for there to be special circumstances, the facts of the case must establish something which is special or out of the ordinary.
[1] (1992) FLC 92-279
Next, the Tribunal noted that it is well established that the taxable income of a person who is self-employed may not be an accurate reflection of their earning capacity and financial resources (DJM & JLM[2]; Scott & Scott[3]; and Carey & Carey[4]). The Tribunal summarised the thrust of these decisions as:
…a ground for departure may be established where self employed people are able to derive additional benefits from their businesses, and also have greater control over the structure of their finances than a PAYG employee.[5]
[2] Incorrectly cited – the correct citation is [1998] FamCA 97
[3] Incorrectly cited – the correct citation is (1994) 92-457; also reported in 17 Fam LR 420
[4] (1994) FLC 92-489; also reported in 18 Fam LR 116
[5] Tribunal Decision page 4 at paragraph [20]
The Tribunal considered the First Respondent’s written submissions and evidence and the Appellant’s verbal testimony, his company’s financial statements and his Statement of Financial Circumstances before deciding that there were special circumstances that made the level of child support payable under the administrative assessment unjust and inequitable. The Tribunal went on to find that:
The Tribunal considered that the availability of additional resources over and above the income reported in Mr Abani’s income tax returns were significant and came about through his control of the Company and business as described above.[6]
[6] Ibid page 14 paragraph [45]
The Tribunal found that the ground for departure in s.117(2)(c)(ia) existed in relation to the Appellant’s income, property and financial resources.
The Tribunal then proceeded to consider whether it would be just and equitable to make a departure determination. In doing so, it stated that it had regard to the matters in subsections 117(4) to (9) of the Act.
In its consideration, the Tribunal stated that it had regard to the following considerations:
a)The parties’ duty to maintain the children, noting the statements contained in ss. 3 and 4 of the Act;
b)The proper needs of the children, noting that there was no evidence that the children had anything but normal expenses;
c)The income, earning capacity, property and financial resources of the children, noting that there was no evidence that the children had any “significant independent income or resources”[7];
d)The income, property and financial resources and earning capacity of each parent;
e)The necessary commitments of the parties to support themselves;
f)The fact that neither party had a legal duty to support any person other than the children; and
g)Any hardship that would be caused to the parents and the children.
[7] Tribunal Decision page 15 paragraph [52]
Having considered those matters, the Tribunal considered it appropriate to determine that the assessment period should extend from 1st April 2013 until 31st December 2014 and give its reasons for setting both the start date and the end date of that period.
The next step in the Tribunal’s consideration was to decide whether it would be otherwise proper to make the particular departure determination. In doing so, the Tribunal noted its obligation under s.117(5) to take that matter into consideration, stating that:
It is a prime objective of the child support legislation that parents should be obliged to support their own children to the extent of their real capacity, and that that obligation should not be unnecessarily abrogated to the public welfare system when the parents themselves have the capacity to maintain their own children.[8]
[8] Ibid page 19 paragraph [72]
In particular, the Tribunal noted at paragraph [73] that:
Given that Ms Abani is in receipt of family tax benefit from the Family Assistance Office the proposed departure from the administrative assessment will reduce her entitlement to government assistance.[9]
[9] Ibid paragraph [73]
The Tribunal concluded that it was otherwise proper to depart from the administrative assessment.
Having done so, the Tribunal then proceeded to set aside the decision under review and in substitution decided that for the period 1st April 2013 to 31st December 2014 the Appellant’s adjusted taxable income was set at $90,000.00.
Procedural History
The Appellant filed a Notice of Appeal on 17th February 2014 in which he sought orders under s.111C of the Child Support (Registration and Collection) Act 1988 (Cth). The Notice of Appeal set out some 15 Grounds of Appeal.
The Appeal was listed for hearing on 10th June 2014 but on that date the hearing was vacated and a fresh hearing date was set for 12th August 2014.
On 26th June 2014 the Appellant filed an Amended Notice of Appeal, an Application in a Case and an affidavit in support. The Applications were returnable on 15th July 2014.
The Amended Notice of Appeal contained some 29 Grounds of Appeal. The Application in a Case sought a stay on the collection and enforcement of arrears of child support and the operation of all child support assessments “pending the determination of the re-hearing in the Social Security Appeals Tribunal”.
The First Respondent filed a Response on 9th July 2014 opposing the Application for a Stay, supported by an affidavit.
The Application for a Stay was heard on 15th July 2014. The hearing of the Appeal on 12th August 2014 was vacated and a fresh hearing date of 5th September 2014 was set.
On 5th September 2014 I handed down a decision on the Stay Application (Abani & Abani & Anor (SSAT Appeal)[10]). In that decision I made the following Orders:
(1)The collection and enforcement of arrears of child support accumulated up to and including the date of this Order payable by the Applicant to the Respondent MS ABANI for the children V born (omitted) 2003, W born (omitted) 2005, X born (omitted) 2007, Y born (omitted) 2009 and Z born (omitted) 2010 are stayed.
(2)The Applicant is to pay to the Respondent child Support Registrar for payment out to the Respondent MS ABANI on account of child support the sum of $500.00 per month the first payment to be made on or before 3 October 2014 and monthly thereafter.
[10] [2014] FCCA 2058
The final hearing of the Appeal was listed for that same day.
The Hearing
On the morning of the hearing the Appellant indicated that he did not wish to proceed with all 29 of his Grounds of Appeal, noting the Child Support Registrar had, in the submission prepared for the hearing, submitted that a number of his grounds were not grounds of appeal at all. He told the Court that he only sought to proceed on seven grounds of appeal. I suggested to the Appellant that he should prepare a document setting out the Grounds of Appeal on which he did seek to proceed.
The Appellant produced a 6 page handwritten document a short while later in which he set out some 9 Grounds of Appeal, which were:
1. The SSAT erred in law making a finding of fact of which there was no evidence.
a) The evidence before the Tribunal shows that (B88-92) & B359 and pages of 188, 189, 190, 191, 192 that under the Corporations Act 2001 section 95A the Company and is insolvent.
b) The depreciation expense in 2012/2013 (Folio B88) of $25,774 was offset against (Folio 92) Hire Purchase Costs of $29,803.34 so that I do not have $25,774.00 available to use but by having a $25,774 depreciation expense I or the Company has a $4,029.34 loss or cost that can not be put into the expense on (B88).
This in fact then reduces the profit of $26,835.34 by $4,029.34 or a profit of $22,806.
c) The profit of $22,806 must under Corporations Act 2001 be used to ensure that the Company is solvent before the director can take any benefits.
d) (B91) shows a current 2012/2013 FY ATO BAS Debt of $1,507.80. Under Section 588 and other subsections of the Corporations act 588FA, unfair preferences, 588FC Insolvent Transactions, and 588FDA unreasonable director-related transactions it is against the law to apply this Profit to myself as the director. The Profit must be used to pay debts as and when they become due and Payable.
2. The appellant was denied procedural fairness by the SSAT.
In the child support guide published by the Child Support Guide Point 2.6.14 under the depreciation
* Before depreciation expenses can be taken into account as income or a financial resource personally available to the Parent, the underlying nature of the depreciation expense must be determined. If the amount claimed as depreciation is used or set aside for replacing equipment (e.g. a capital (?)[11] replacement fund) or is actually accounted for as part of ongoing business activities (e.g. to repay a loan on a depreciating asset or to otherwise reduce business debt), then this is unlikely to provide the Parent with additional financial resources.
[11] This word was very hard to decipher in the handwritten document
b) When the Tribunal asked about the depreciation (pg 21 of transcript) Point 40 at Point 45 I answered “I don’t completely understand – I understand the concept of depreciation”. The Tribunal gave me a loaded question with two answers and it was a choice of either a or b. There was no attempt from the Tribunal to make sure I completely understood the question before making a decision to increase my income by $25,774.
3) The SSAT erred in law in failing to have regard to relevant considerations namely the matters referred to in s.117(1) to (10) of the Assessment Act.
a) The Company is insolvent as shown by the evidence and any increase in wages would put a greater financial pressure on me and is in error of s. 117 (1) to (10).[12]
4) The SSAT has failed to accord the appellant’s natural justice and right to procedural fairness.
5) The SSAT erred in law by demonstrated bias against the appellant.
6) The SSAT has erred in law by ignoring relevant material and relying on irrelevant material.
a) The SSAT deleted page B359 which shows that the Company is insolvent.[13]
[12] There is no Ground 3(b)
[13] There is no Ground 6(b)
7) The SSAT has erred in law by identifying the wrong issues or questions to be asked:
1) In terms of depreciation
2) Profit
3) Past and current debts
4) [14]
8) The SSAT has made an erroneous finding that is of so great a magnitude that it can be said to go to the very jurisdiction purposes[15] to be exercised and rendering the decision made “perverse” or “unreasonable” or “otherwise offending logic”
a) Details of this have been detailed in other points above.[16]
9) The SSAT has erred in law by not applying the s.95A solvency or insolvency test to both the company and the parent.
[14] There was no text in this point
[15] sic
[16] There is no Ground 8(b)
Mr Kaplan of Counsel, who appeared for the Child Support Registrar, told the Court that almost of all of the Appellant’s grounds were new and had neither been canvassed in the Amended Notice of Appeal or, more particularly, in the Appellant’s affidavit filed on 17th February 2014, which the Registrar took to be a submission. I indicated that I would allow the Registrar and the First Respondent to make further written submission in answer to the new Grounds of Appeal.
Counsel for the Registrar took objection to certain material in the Appellant’s affidavit, which contained fresh evidence which was not before the Tribunal, relying on my earlier decision in Schmidt & Geller (SSAT Appeal)[17]. The objection was upheld, as evidence that was not before the Tribunal was inadmissible in a review of the Tribunal decision.
[17] [2012] FMCAfam 735
The Appellant made oral submissions in support of his new Grounds of Appeal. Noting that his claim of bias in Ground 5 had not been particularised in any way, I asked the Appellant what it was that he was alleging. The Appellant said:
In regards to some of that bias would be comments they’ve made in their …I will pull up their decision. On their decision they’ve made comments in regards to I should – should limit my expenditure on (hobby omitted) without even asking any questions about what I have or don’t spend on (hobby omitted)….Because there’s no evidence before the Tribunal – no mention of expenses. There’s nothing in the documentation except for Ms Abani’s claim that I spent a lot of money and it comes up as a comment in theirs which, to me, shows bias that they hadn’t asked me any questions about what I spent and there was no formal, hard evidence on it. It was hearsay so evidence.[18]
[18] Transcript 5 September 2014 page 19
In respect of the Appellant’s Ground 8, a claim that the SSAT made an erroneous finding that was of so great a magnitude that it rendered the decision perverse or unreasonable or otherwise offending logic, the Appellant said that the Tribunal did not understand the financial statements that had been tendered in evidence, showing that he was not earning any money. He said that “Anyone – any accountant with a solid financial understanding would be able to see that”.[19]
[19] Ibid page 20
It was put to the Appellant from the Bench that he appeared to be cavilling at the way the Tribunal construed the evidence, which does not amount to an error of law but is in effect merits review rather than a finding of fact upon which there was no evidence.
It was put to the Court by Mr Kaplan of Counsel that the Appellant’s claim in Ground 6 that the Tribunal had deleted page B359 and page B350 that the Social Security Appeals Tribunal deleted not the documents from the record but rather text which would have appeared, being a redaction of personal information that the Tribunal considered ought not to be shared with third parties.[20]
[20] Transcript 5.9.2014 page 23
The Appellant’s claim of a denial of procedural fairness was explained by him as going to the fact that the Tribunal did not look at is depreciation expenses “in any great terms, and they haven’t read the documentation or the evidence before them to come to an accurate conclusion”.[21]
[21] Ibid page 24
The Appellant relied on his claim that the evidence showed that the company was insolvent to support his Grounds that the SSAT had failed to accord him natural justice or his right to procedural fairness and that the SSAT had erred in law by ignoring relevant material and relying on irrelevant material. He also said that by reading through the entire transcript of the hearing “you do get a feeling that it’s very biased, that, ‘We want you to pay more money’”.[22]
[22] Ibid page 26
The Appellant told the Court that the Tribunal had failed to apply a test under s.95A of the Corporations Act 2001 and submitted that:
“It is a legal term that a person or a company is either solvent or insolvent. And under that, it should be a test that all companies –or, person, when they’re looking at financial circumstances, should have to undertake before a decision can be made.”[23]
[23] Ibid
Supplementary Submissions of the Second Respondent
In accordance with the leave granted at the hearing, Counsel for the Child Support Registrar prepared Supplementary written submissions which were filed on 3rd October 2014. It was submitted that none of the new grounds of appeal ought to be upheld. Mr Kaplan submitted that Grounds 1 to 7 had been drafted in such a way as to give rise to questions of law but when those grounds were read in conjunction with the Appellant’s oral submissions it immediately became apparent that they were being used to cavil with the merits of the Tribunal’s factual findings.
It was submitted that Ground 1, which asserted that the Tribunal made an error of law by making a finding of fact for which there was no evidence, should be dismissed because nowhere has the Appellant identified, let alone with specificity, the Tribunal’s actual finding with which he took issue.
In respect of Ground 2, where the Appellant claimed a failure by the Tribunal to comply with the policy in the Child Support Guide in finding that the depreciation expenses were financial resources available to the Appellant, it was submitted that while the Tribunal may take departmental policy into account, nothing in the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988 that requires the Tribunal to do so. Thus, Ground 2 should be dismissed.
As to the Appellant’s Ground 3, claiming that the Tribunal failed to take into account the fact that the Company was insolvent under s. 95A of the Corporations Act is that the question of the insolvency of a company is a matter for the Court to decide (see Sandell v Porter[24] at 670-671 per Barwick CJ). It is not a matter for the Tribunal to assess whether or not the company was insolvent.
[24] (1966) 115 CLR 666
A similar approach should be taken with the Appellant’s Ground 9, which asserted that the Tribunal erred in law by not applying the s.95A solvency or insolvency test to the company or the parent, it was submitted. The Tribunal had no jurisdiction to declare the company solvent or insolvent. Section 95A only applies to companies and not natural persons.
Mr Kaplan dealt with the Appellant’s Grounds 2, 4 and 5 together. These grounds related to claims of denial of natural justice and denial procedural fairness (Ground 4) and bias (Ground 5).
It was submitted that the Appellant’s claim of a denial of procedural fairness because the Tribunal did not ensure that he understood the questions asked of him must also fail. Procedural fairness required that the Appellant be given the opportunity to put information and submissions to the Tribunal in support of his case (Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd[25] at 590G).
[25] (1994) 49 FCR 576
That obligation required the Tribunal to identify to the Appellant the important issues on the review but did not require the Tribunal to ensure that the Appellant understood why the information was relevant.[26]
[26] SZRPA V Minister for Immigration and Citizenship [2012] FMCA 91
As to the allegation of bias, in Ground 5, it was submitted that it is only in the rarest of cases (the present case not being one of them) that bias will be established on the basis of a transcript of a Tribunal hearing.
Mr Kaplan submitted that the Appellant’s Ground 6 must fail in that it claims that the Tribunal deleted a document when in fact the Tribunal merely removed from a part of the document a part of that document that it considered to be personal information which it considered should not be disclosed.
It was submitted that the Appellant’s Ground 7 must be dismissed. This ground claimed that the Tribunal made an error of law by identifying the wrong issues or questions to be asked. The issues or questions were those of depreciation, profit and post and current debts. It was submitted, correctly in my view, that this ground is no more than an appeal to the merits. Merits review is impermissible in these proceedings.
As to the Appellant’s Ground 8, it was submitted that it suffered from two fatal defects:
a)It was not particularised and the Appellant did not address this ground in his oral submissions apart from saying that he had dealt with it in his consideration of his other grounds of appeal;
b)It does not give rise to a question of law.
Conclusions
The submissions by Counsel for the Child Support Registrar in respect of each Ground of Appeal are quite clearly correct and it must follow that each ground must be dismissed.
I am of the view that Grounds 1, 2, 4, 6, 7 and 8 are no more than an attempt at merits review. This issue was put to the Appellant from the Bench during the course of the hearing.
Ground 1 alleges that the Tribunal erred in law by making a finding of fact for which there was no evidence. The ground largely relies on the Appellant’s contentions that:
a)The evidence before the Tribunal showed that the company was insolvent in accordance with s.95A of the Corporations Act; and
b)An examination of the evidence of the depreciation expenses for the company would not allow a conclusion to be drawn that they were financial resources available to the Appellant for child support purposes.
It is clear that a determination under s.95A of the Corporations Act that a company is insolvent is a matter for a Court of competent jurisdiction (Sandell v Porter[27]) and not within the jurisdiction of the Social Security Appeals Tribunal.
[27] supra
It is also apparent that the Tribunal did consider the evidence of the depreciation expenses but formed a conclusion with which the Appellant took issue. This is quite clearly an attempt at merits review.
Ground 1 does not raise a question of law and does not show an error of law on the part of the Tribunal and must be dismissed.
Ground 2 claims a denial of procedural fairness by the Tribunal in an asserted failure to follow the policy in the Child Support Guide. It is clear that, as was submitted, there is nothing in the Child Support (Assessment) Act or the Child Support (Registration and Collection) Act that requires the Tribunal to follow Departmental guidelines. Even if there were, it would hardly constitute a denial of procedural fairness.
In reality, this Ground is an attempt at merits review in cavilling with the Tribunal’s finding in respect of depreciation expenses being taken into as a financial resource.
No question of law is raised and no error of law is demonstrated in respect of Ground 2. The ground will be dismissed.
Ground 3 claims a failure to have regard to relevant considerations in all ten subsections of s.117 of the Child Support (Assessment) Act. The Appellant’s failure to particularise the matters that the Tribunal failed to consider is enough of itself to dismiss this ground of appeal.
It is clear that the Tribunal considered the matters in subsections (2) and (4) through to (9) in its decision, because it expressly stated that fact.
The Appellant’s assertion that the company was insolvent does not raise a question of law. A determination whether or not a company is insolvent as understood by s.95A of the Corporations Act is not within the jurisdiction of the Tribunal.
Ground 3 must fail.
Ground 4 asserts a denial of natural justice and procedural fairness. For the reasons set out in paragraphs [52] and [53] above this ground of appeal must fail. There was no denial of procedural fairness or failure to accord natural justice. The Appellant attended a hearing. He was given the opportunity to make submissions and provide written evidence, and he did just that.
The fact that the Tribunal did not accept the Appellant’s contentions and formed a different view of the conclusions to be drawn from the evidence does not indicate a denial of either procedural fairness or natural justice.
In reality, the Appellant is cavilling with the Tribunal’s factual findings and the ground is no more than an attempt at merits review.
Ground 4 must fail.
Ground 5 asserts bias on the part of the Tribunal, arising from the Appellant’s contention that the transcript of the Tribunal hearing shows that the questions asked of him showed a bias against him.
The ground itself gave no particulars and it was only when prompted from the Bench that the Appellant gave any account of why he said the Tribunal was biased against him. It is well established that allegations of bias must be “distinctly made and clearly proved”[28], which is hardly the case here. An allegation of bias is a serious matter involving personal fault on the part of the Tribunal Member or Members. It should not be lightly made and must be clearly alleged and proved (see SBBS v Minister for Immigration and Multicultural and Indigenous Affairs[29] at [43]; SZLXP v Minister for Immigration & Anor[30] at [61]).
[28] Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507
[29] [2002] FCAFC 361
[30] [2008] FMCA 1247
In any event, an administrative decision maker does not exhibit bias in preferring the evidence of one party to that of the other.
The appellant’s Ground 5 fails.
Ground 6 alleges that the Tribunal erred in law by ignoring relevant material and relying on irrelevant material. This ground is based on an erroneous claim by the Appellant that the Tribunal deleted a relevant page, being B359. It is clear that the Tribunal merely redacted a part of the document that showed personal information that should not be disclosed to third persons.
Ground 6 does not raise a question of law and does not demonstrate any error of law on the part of the Tribunal.
Ground 7 claims that the Tribunal erred in law by identifying the wrong issues or questions to be asked. As I stated at [59] above, this is really an attempt at merits review. In my view the Tribunal clearly identified the issues that needed to be decided see at [12] and [13] above. All that the Appellant is seeking to do is nominate his own choice of factual issues that he claims the tribunal should have decided.
As this is no more than an attempt at merits review, Ground 7 must fail.
Ground 8 claims that the Tribunal made an erroneous decision that is of so great a magnitude that it goes to the very jurisdiction (the word should be “purported” to be exercised and thereby rendering the decision “perverse” or “unreasonable” or “otherwise offending logic”.
As Mr Kaplan submitted, this ground suffers from the fatal defects of:
a)not being particularised; and
b)not giving rise to a question of law.
That submission is clearly correct. As I said at [59] above, this is no more than an attempt at merits review.
Ground 8 does not demonstrate any error of law will therefore be dismissed.
The Appellant’s Ground 9 claims an error of law by the Tribunal by not applying a test for insolvency or insolvency in accordance with s.95A of the Corporations Act. As I have held at [69] above, a determination as to whether a company is solvent or insolvent is a matter for a court and not within the jurisdiction of the Social Security Appeals Tribunal.
It is also clear that s.95A only applies to companies and not to natural persons.
This ground is without merit and must clearly fail.
Orders
As all of the Appellant’s Grounds of Appeal have failed, the Appeal will be dismissed and the decision of the Social Security Appeals Tribunal will be affirmed. The stay orders made on 5 September 2014 will be discharged.
The Registrar has already raised the question of costs, particularly in respect of the costs thrown away by the Appellant drastically reshaping his entire case on the morning of the hearing. This inevitably led to a further submission being prepared by the lawyers for the Child Support Registrar.
I will allow 28 days for any submission in respect of an order for costs and a further 14 days for any submission in opposition.
I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 15 July 2016
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