Ahern & Ahern & Anor (SSAT Appeal)

Case [2013] FCCA 436

FEDERAL CIRCUIT COURT OF AUSTRALIA

AHERN & AHERN & ANOR (SSAT APPEAL) [2013] FCCA 436

Catchwords:
CHILD SUPPORT – Appeal from decision of Social Security Appeals Tribunal – where SSAT set aside decision under review – where SSAT substituted a decision increasing appellant’s adjusted taxable income – whether Tribunal had jurisdiction to make a departure order – procedural fairness – whether Tribunal denied appellant procedural fairness – whether Tribunal made a material finding of fact without evidence to support that finding – whether Tribunal has jurisdiction to make a decision outside the parameters of the decision the subject of the review.

PRACTICE AND PROCEDURE – Stare decisis – judicial comity.

Legislation:
Administrative Appeals Tribunal Act 1975 (Cth), s.43
Child Support (Assessment) Act 1989 (Cth), ss.5, 98B, 98C, 98S
Child Support (Registration and Collection) Act 1988 (Cth), ss.4, 80, 87, 89, 103C, 103S, 103T, 103X, 110F

Safety, Rehabilitation and Compensation Act 1988 (Cth)
Taxation Administration Act 1996 (NSW) ss.96, 97, 103A
Cases cited:
Ahern & Ahern (SSAT Appeal) [2012] FMCAfam 1299
Australian Securities and Investments Commission v Donald (2003) 136 FCR 7
Chief Commissioner of State Revenue v Paspaley [2008] NSWCA 184
Comcare v Burton [1998] FCA 1144; (1998) 157 ALR 522
CSR & MMB (SSAT Appeal) [2007] FMCAfam 944; (2007) 220 FLR 245
Dwyer v McGuire (1993) 114 FLR 325; 17 Fam LR 42; FLC 92-420
Gurnett v The Macquarie Stevedoring Co Pty Ltd (1956) 95 CLR 106
Kioa v West (1985) 159 CLR 550
Kindree & CSR (SSAT Appeal) [2010] FMCAfam 357; (2010) FLC 98-052
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32
Lombardo v Federal Commissioner of Taxation [1979] FCA 66; (1979) 28 ALR 574
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed (2005) 143 FCR 314
PJ & Child Support Registrar (SSAT Appeal) [2007] FMCAfam 829; (2007) 38 Fam LR 31
Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88
Sagal & Child Support Registrar (SSAT Appeal) [2013] FCCA 51
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119; (1988) 82 ALR 175
Appellant: MR AHERN
First Respondent: MS AHERN
Second Respondent: CHILD SUPPORT REGISTRAR
File Number: SYC 5609 of 2012
Judgment of: Judge Scarlett
Hearing date: 13 May  2013
Date of Last Submission: 13 May 2013
Delivered at: Sydney
Delivered on: 11 June 2013

REPRESENTATION

Counsel for the Appellant: Ms Kaur-Bains
Solicitors for the Appellant: Jackson Lalic Lawyers
The First Respondent: In person
Solicitor for the Second Respondent: Mr Gouliaditis
Solicitors for the Second Respondent: Australian Government Solicitor

ORDERS

  1. The Appeal is allowed.

  2. The decision of the Social Security Appeals Tribunal made on 26 May 2012 and posted on 5 June 2012 is set aside.

  3. The matter is remitted to the Social Security Appeals Tribunal for determination according to law.

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AGLC
AHERN & AHERN & ANOR (SSAT APPEAL) [2013] FCCA 436
Case
[2013] FCCA 436
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal to the Federal Circuit Court of Australia against a decision of the Social Security Appeals Tribunal (SSAT). The appellant sought to set aside the SSAT's decision, which had increased his adjusted taxable income, and alternatively sought a remittal of the matter for rehearing. The core of the dispute revolved around the SSAT's jurisdiction and whether it had afforded the appellant procedural fairness.

The legal issues before the Court were whether the SSAT had jurisdiction to make a departure order for a period beyond that which was the subject of the original application and subsequent objection decision. Additionally, the Court considered whether the SSAT had denied the appellant procedural fairness by making a material finding of fact without sufficient evidence and without providing the appellant an opportunity to respond. The Court also considered the principle of *stare decisis* and judicial comity.

Judge Scarlett allowed the appeal, finding that the SSAT had erred in law by exceeding its jurisdiction. The Tribunal's power on review was limited to the specific decision under review, and by making a determination for a broader period than that which had been the subject of the application, objection, and objection decision, it acted beyond its statutory power. The Court also noted that a finding regarding the repayment of a line of credit was made without supporting evidence, which, coupled with the jurisdictional error, meant the decision could not stand.

Consequently, the decision of the Social Security Appeals Tribunal was set aside, and the matter was remitted to the Tribunal for determination according to law. The Court also made orders regarding the filing and service of submissions in relation to any application for costs.

Orders

Orders of the court

1.

The Appeal is allowed.

2.

The decision of the Social Security Appeals Tribunal made on 26 May 2012 and posted on 5 June 2012 is set aside.

3.

The matter is remitted to the Social Security Appeals Tribunal for determination according to law.

4.

Written submissions in support of any application for costs and any affidavit setting out the way in which the costs sought are quantified are to be filed and served within seven (7) days of the date of these Orders and written submissions in opposition to any such application and any affidavit in support are to be filed and served within a further period of seven (7) days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Essentially, the Appellant’s submission on this issue is contained in paragraphs [70] and [71] of the Appellant’s Outline of Submissions:70.By the time a decision[35]comes before the Tribunal for review, that decision is defined. It is defined by s. 89(1) of the Registration and Collection Act. It is only that decision to which the Tribunal has the power conferred by s.103T of the Registration and Collection Act.71.By purporting to make a determination adjusting the Appellant’s taxable income for a period not the subject of the relevant enlivening decision and for periods the subject of operative administrative assessments made by the Registrar which have never been the subject of (or indeed disturbed by) a departure application, a departure decision, an objection and an objection decision, the Tribunal acted beyond power and committed an error of law.[35] Emphasis in the original Counsel for the Appellant also referred the Court to the decision of Burchett J in La Macchia v Minister for Primary Industries and Energy[36] on the doctrine of stare decisis and the principle of judicial comity. In that case, it was held that whilst the doctrine of stare decisis does not compel the conclusion that a judge must always follow a decision of another judge of the same court, such a decision should be followed unless it is considered to be clearly wrong.[36] (1992) 110 ALR 201 The solicitor for the Registrar submitted that the Court should reject the Appellant’s argument that, since his original application for a departure determination to the Registrar, or at least the decision made by the objections officer, was made in relation to the period 29th May 2010 to 29th July 2010, the Tribunal has no jurisdiction to make a determination for any broader period, especially a period covered by other administrative assessments. It is submitted that the Registrar’s jurisdiction to make a departure determination under Division 2 of Part 6A is conditioned only on the existence of “an application” (s.98C(1)(a)). Once that jurisdiction is enlivened, the Registrar, upon being satisfied that it is appropriate to “make a particular determination”, may make the determination (s.98C(1)). The Registrar draws support from the decision of Dwyer v McGuire[37], where it was held, with respect to the Court’s cognate power to make departure orders:[T]he structure of the Act is such that once a valid application for departure has been made, it throws open for consideration by the Court the question of departure from the administrative assessment provisions of the Act not only in respect of any current or past child support years but also I respect of future years. Although nothing in the Act says so specifically, I think this is clear by inference from provisions such as ss 18(2), 119(1) and 119(2)….I am aware of many reported decisions of the Court in which departure orders have been made in respect of future child support years for which an administrative assessment has not been made.[38] [37] (1993) 114 FLR 325; 17 Fam LR 42; FLC 92-420[38] (1993) 114 FLR 325 at 336

Ratio Decidendi

Legal Principle Established

In his Amended Notice of Appeal[1] filed in Court by consent on 13th May 2013, the Appellant seeks the following Orders:[1] Which was in fact a Further Amended Notice of Appeal1. The Appeal be allowed.2. Pursuant to s.110F(2)(a) of the Child Support (Registration and Collection) Act 1988 (the “the Registration Act”)[2], the decision of the Social Security Appeals Tribunal (“the Tribunal”) in 2012/SC244727 that the Appellant’s adjusted taxable income for the period 1 July 2010 to 30 June 2013 id $68,330 be set aside.3. Alternatively, pursuant to s.110F(2)(b) of the Registration Act the matter is remitted back[3] to the Tribunal for a rehearing.4. The Second Respondent pay the Appellant’s costs of the Appeal.[2] It is usually referred to as the Registration and Collection Act (see Child Support (Assessment) Act 1989 (Cth) s.5[3] sic5. Such further and other orders as the Court deems appropriate. The Appellant relies on the following grounds of Appeal:$70,000 Issue 1. The Tribunal erred in law by making a finding of fact at [22] and at [28] of the decision that the appellant had repaid a $70,000 line of credit (incorrectly described by the Tribunal as an “overdraft”) when there was no evidence to support such a finding and that finding that the appellant had repaid the $70,000 “overdraft” was a material finding in the Tribunal’s conclusion as to the Appellant’s “financial resources”. No Jurisdiction for period 1 July 2010 to 30 June 2013 2. The Tribunal had no jurisdiction to make a departure order in respect of the period 1 July 2010 to 30 June 2013 for the following reasons:a.the Appellant applied, on 5 April 201, for a departure order in relation to the period 1 May 2010 to 30 June 2010. That application is permitted by s.98B of the Assessment Act[4];[4] i.e. the Child Support (Assessment) Act 1989 (Cth) (see Child Support (Registration and Collection) Act 1988 (Cth) s.4b.On 22 June 2011 the Child Support Registrar made a determination under s. 98S(1)(a) of the Assessment Act, in respect of the period 1 May 2010 to 29 July 2010 (“the original decision”);c.The Appellant objected to the original decision 16 October 2011, pursuant to s.80(1) of the Registration Act;d.On 9 December 2011 the Child Support Registrar determined the objection to the original decision (“the objection decision”). The objection decision was restricted to the period 1 May 2010 to 29 July 2010.e.On 6 January 2012, the Appellant lodged an Application for Review in the Tribunal in respect of the objection decision (“the decision”);f.The Tribunal on review must do one of the things outlined in s.103S of the Registration Act in respect of “the decision”;g.By s.103T of the Registration Act for “the purpose of reviewing a decision”, being the relevant Child Support Registrar’s “decision”, the Tribunal may exercise all the powers and discretions conferred on the Registrar;h.In making a determination for the period 1 July 2010 to 30 June 2013 the Tribunal went beyond the scope in time of the relevant decision and was not, in doing so, reviewing the relevant decision but rather was making an entirely new decision.Procedural unfairness/breach of natural justice 3. The Tribunal denied the Appellant procedural fairness/natural justice in relying on the information in the 30 June 2011 tax return as to “drawings” of $52,562 without telling the Appellant it intended to rely on the drawings of $52,562 to adjust the Appellant’s taxable income for the period 1 July 2010 to 30 June 2013 and without giving the Appellant an opportunity to present further evidence on that issue.