B & T

[2006] FamCA 380

[2006] FamCA 380

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA
AT BRISBANE      No. NA11 of 2006

(No. BRM9542 of 2005)

BETWEEN:
  B
  Appellant Father

AND:
  T
  Respondent Mother

BEFORE THE HONOURABLE JUSTICE WARNICK

REASONS FOR JUDGMENT

Dates of Hearing:              17 May 2006

Date of Judgment:            19 May 2006

Appearances:  The Appellant Father appeared in person

No appearance for the Respondent Mother

B and T  NA11 of 2006 (BRM9542 of 2005)

Heard:             17 May 2006
Delivered:        19 May 2006

APPEAL FROM FEDERAL MAGISTRATES COURT – CHILD SUPPORT – APPLICATION FOR DEPARTURE FROM ASSESSMENT – The father filed an application in the Federal Magistrates Court for departure from child support assessment – He had previously filed an application for departure in the State Magistrates Court.  That application had been dismissed - The Federal Magistrate dismissed the father’s application according to the principle of res judicata - The father appealed on the ground of denial of natural justice – It was not open to the Federal Magistrate to conclude that the two proceedings were the same for the purposes of the principle of res judicata as the application filed in the State Magistrates Court was not before the Federal Magistrate and there were no orders of the State Magistrate produced, nor was a transcript of the State proceedings available – Even if the two proceedings raised identical issues, the foundation for the dismissal of the State proceedings was not before the Federal Magistrate – It is at least doubtful that dismissal of an application on any basis at all supports a defence of res judicata.

CSR Ltd v Page [2002] NSWCA 365

Appeal allowed.  Orders of Federal Magistrate Baumann set aside.  Application of the father remitted for rehearing in the Federal Magistrates Court.

1. On 20 January 2006, the parties appeared before Federal Magistrate Baumann upon an application brought by the father for an order that an administrative assessment of child support be departed from.  A short time later the parties departed, Baumann FM having dismissed the father’s application, saying:

   “So on the material you’ve presented to me, I don’t need to reconsider the evidence then because the evidence I have is that it has been before Court and dismissed.  There’s no evidence that you appealed that decision of Magistrate O’Driscoll as you’re entitled to do.  There is an order made by a State Magistrate therefore you’re entitled, as of right, to review that decision.  You didn’t do so.  This application as a result of res judicata, issue estoppel, must be dismissed.”

2. Against the order for dismissal, the father appeals.  Upon the hearing of the appeal the father remained unrepresented, the mother did not appear.

3. There is one ground of appeal:

   “Denial of Natural Justice.

   The Decision that Federal Magistrate Baumann incorrectly decided that there was no new evidence in the application BRM9542/2005.”

4. There are no separately published reasons for the order appealed, but the transcript of the hearing before the Federal Magistrate, of some 6 pages, is before me.

5. To address the appeal it is necessary to examine the course of the proceedings before the Federal Magistrate.  After that examination, I will address the principles applicable to the appeal, then the question of whether the proceedings, including the disposition of them, involved a denial of natural justice, error of principle or mistake of fact, before reaching an overall conclusion, including the question of consequential orders.

The proceedings

1. At the outset, the Federal Magistrate identified that the application of the father filed on 25 November 2005 was for a departure order, in respect of the period from 8 April 2004 until 12 April 2005.  During subsequent discussion (which was not entirely orderly), the Federal Magistrate referred to the father being “on Centrelink Job Seek” during that period.  The father said otherwise, namely that the basis of his application was that he had been unfit for work or study of any kind.  The father also referred to there being “four affidavits in there”.

2. In this regard, there is no indication that the material upon which either party relied was precisely identified.

3. Baumann FM then asked the mother what she said about the application.  She answered:

   “Your Honour, we came to Court last year about the same issue and I don’t believe that [the father] has any new evidence to be before the Court today.”

4. Again, there followed a somewhat disorderly exchange involving the parties and the Federal Magistrate, during which the mother stated that the matter had been heard in the State Magistrates Court, the judge ruling that the father did not have a case.  Thereupon, the Federal Magistrate sought a copy of any relevant order and was eventually referred to an annexure to an affidavit of the husband filed 25 November 2005.  That annexure was a copy of a letter from the Family Law Clerk, Magistrates Court dated 10 August 2005 addressed “Re: Family Law Matter:  [B] –V- [T]”, the pertinent sentence being:

   “On 24/03/2005 an application for child support was before Magistrate O’Driscoll, at the mention the application was dismissed, therefore there were no orders made on this application.”

5. It is perhaps also worthy of note that also annexed to the father’s affidavit was a letter from the State Magistrates Court dated 10 August 2005 and headed “Re: Transcript Request – [B] -v- [T]”, saying:

   “I refer to your letter requesting a copy of the transcript of the court proceedings.  Under the Family Law matters are not required to be recorded.

   “Therefore the transcript is not available for this hearing.”

6. Upon reading the letter first referred to, the Federal Magistrate asked why the application had been dismissed.

7. The father embarked upon a response to the effect that his solicitor (in the earlier proceedings) had failed him.  I think the most effective way of describing the balance of the short hearing in respect of the application, is to set out the transcript:

   “FEDERAL MAGISTRATE:  Look, Mr - this is the position, [Mr B]:  The best evidence I have at the moment is that you’ve brought an application in respect of the same period, the same issue before the State Magistrate’s Court on 24 March 2005 before State Magistrate – Magistrate O’Driscoll and the best evidence I’ve got which is annexure N is that at the mention the application was dismissed.

   [THE FATHER]:  Yes, because it never had – had any of this evidence in that - - -

   FEDERAL MAGISTRATE:  Well, it was dismissed.

   [THE FATHER]:  Because the solicitor never put in even the medical certificates.  I’ve got all the medical certificates.  There’s medical certificates here from doctors to say that I was unable to work.

   FEDERAL MAGISTRATE:  I would need to be – before I could proceed with this further I would need to be satisfied, and I’m not satisfied because of that letter - - -

   [THE FATHER]:  What letter?

   FEDERAL MAGISTRATE:  The letter from the Court.  I would need to be satisfied that I have jurisdiction to hear this.  It sounds to me is if your application has been before the Court – [Ms T], did you oppose the application at that stage?

   [THE MOTHER]:  Yes, I did your Honour, and I put forward affidavit, financial statements, et cetera and the child – and the case was dismissed because Magistrate O’Driscoll agreed with the child support ruling at the time and the medical certificates, et cetera, were provided by [the father] at that hearing.

   [THE FATHER]:  The solicitor – the solicitor definitely rigged that case.  If you go through it like – like I know that – like he’s – he’s drawing a vertical line in – in that other annexure – like I think you need to take time to go through it - - -

   FEDERAL MAGISTRATE:  No, no, no.  I’ll tell you what, [Mr B].  This is difficult.  Now, let me explain to you as best I can.  We have a process here in Australia that if an application is made and is heard by a Court and that application deals with the same issues - - -

   [THE FATHER]:  It’s not the same issues, your Honour.

   FEDERAL MAGISTRATE:  Well, on the basis of the material I’ve got now - - -

   [THE FATHER]:  There’s a lot of extra evidence in there.

   FEDERAL MAGISTRATE:  No, that’s not the point.  You know, if you made a case and you weren’t believed and it was dismissed - - -

   [THE FATHER]:  I didn’t make the case.  The solicitor rigged it.

   FEDERAL MAGISTRATE:  And it was dismissed.  So it seems on the principles of res judicata, which is effectively the issue of estoppel, which is effectively saying, you’ve had your bit, you’ve got – you didn’t win the case then, you can’t come back to another Court on the same case and ask for a different decision when you’ve your opportunity to put the evidence before the Court.

   So on the material that you’ve presented to me, I don’t need to reconsider the evidence then because the evidence I have is that it has been before Court and dismissed.  There’s no evidence that you appealed that decision of Magistrate O’Driscoll as you’re entitled to do.  There is an order made by a State Magistrate therefore you’re entitled, as of right, to review that decision.  You didn’t do so.  This application as a result of res judicata, issue estoppel, must be dismissed.

   [THE FATHER]:  So you’ve dismissed this one?

   FEDERAL MAGISTRATE:  I have to.

   [THE FATHER]:  Okay, So I can appeal it, can’t I?

   FEDERAL MAGISTRATE:  You can appeal my decision.

   [THE FATHER]:  Okay, so how – okay.

   FEDERAL MAGISTRATE:  Look, I – you have not produced any evidence to me about that application which would resist what the wife is saying because it was properly heard by a Magistrate - - -

   [THE FATHER]:  It wasn’t.

   FEDERAL MAGISTRATE:  - - - and dismissed.  And on that       basis - - -

   [THE FATHER]:  Have you read right through this whole thing?

   FEDERAL MAGISTRATE:  I have read what you have directed me to about the decision of the State Magistrate.”

Principles applicable to the appeal

1. The circumstances in which an appellate Court should interfere with a discretionary judgment were set out in House v The King (1936) 55 CLR 499 at 504‑505 where Dixon, Evatt and McTeirnan JJ said:

   “The manner in which an appeal against an exercise of discretion should be determined is governed by established principles.  It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the judge acts upon a wrong principle, if the allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some of the material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.  It may not appear how the primary judge has reached the result embodied in his orders, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.  In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

The appeal

1. In my view, the one ground of appeal is broad enough to encompass argument that there were erroneous findings of fact and/or errors of principles.

2. Some observations seem pertinent:

   (i)It is certainly not clear that the Federal Magistrate had before him the actual application which went before the State Magistrate. The standard form of an application for departure not only provides for the orders sought to be particularised, but also requires nomination of those of the numerous grounds for departure, set out in section 117 of the Child Support (Assessment) Act 1989, relied upon. Thus, if one could have compared the two applications in question here (assuming the earlier application was, as was that filed in the Federal Magistrate’s Court, in the standard form) one would at least have been able to identify whether, on the face of the applications, they raised identical issues.

   However, I am unable to identify, apart from an unsworn and unsupported assertion by the mother, what it was that led the Magistrate to say even that the applications were in respect of the same periods, let alone the same issues.

   Therefore, in my view, it was not open to the Federal Magistrate to conclude as he did, namely that, in so far as was necessary to invoke the principle of res judicata, the two proceedings were the same.

   (ii)Even had it been plain that the two proceedings raised identical issues, the necessary foundation for the application of the principle of res judicata may not have been established.  Firstly, the letter of 10 August 2005 from the State Magistrates Court is imprecise, saying on the one hand that no orders were made on the application, but on the other hand that it was dismissed.

   Secondly, the foundation for dismissal was not before the Federal Magistrate (again except for the wife’s unsworn and unsupported assertion).  If any inferences could be drawn from the cryptic statement provided by the State Magistrates Court, it might be, because it seems that the application was only there listed for “mention”, that there had not been a hearing on the merits.  However, I do not suggest that such an inference was a necessary one, but if drawn, it would in my view, for the reason that follows, have favoured the father.

   In my view, it is at least doubtful that dismissal of an application on any basis at all, for example, for want of prosecution, supports a defence against a later identical application on the basis of res judicata (see the discussion at p 395 ‘Australian Civil Procedure’ (Cairns) 6^th ed and CSR Ltd v Page [2002] NSWCA 365 at [9]-[14]).

   (iii)Questions of procedural fairness and onus in respect of the mother’s “plea” of (in effect) res judicata, may also have deserved consideration by the Federal Magistrate.  I can locate no response by the mother on the Federal Magistrates Court file.  On the face of it, the point was raised by the mother for the first time in response to a question from the Federal Magistrate, at the hearing of the husband’s application.

   As seen, the husband was unrepresented and some consideration of the position in which he was placed may well have been appropriate.  It also seems to have been regarded as up to the husband to disprove the availability of the “plea” of res judicata.

Conclusion overall

1. Whether or not dismissal, on any basis at all, of an earlier application identical to that which came before the Federal Magistrate could found a defence of res judicata or whether or not the husband was denied procedural fairness, the critical error in the hearing before the Federal Magistrate was that there was no basis upon which he could find that the two applications in question raised the same issues.

2. Having regard to the applicable principles, in my view, the appeal should succeed and the father’s application be remitted for rehearing.

ORDERS

1. That the appeal be allowed.

2. That the Order of Federal Magistrate Baumann made 20 January 2006 be set aside.

3. That the application of the father filed in the Federal Magistrates Court on 25 November 2005 be remitted for rehearing by a Federal Magistrate other than Federal Magistrate Baumann.

   I certify that the preceding 17 paragraphs

   are a true copy of the Reasons for Judgment

   herein of the Honourable Justice Warnick.

   ………………………………….
     Associate

   Date:    19 May 2006