FEDERAL CIRCUIT COURT OF AUSTRALIA
| AHERN & AHERN & ANOR (SSAT APPEAL) | [2013] FCCA 436 |
| Catchwords: PRACTICE AND PROCEDURE – Stare decisis – judicial comity. |
| Legislation: Safety, Rehabilitation and Compensation Act 1988 (Cth) |
| 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
The Appeal is allowed.
The decision of the Social Security Appeals Tribunal made on 26 May 2012 and posted on 5 June 2012 is set aside.
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
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
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
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.