Barton and Gibb and Anor (SSAT Appeal)
[2013] FCCA 644
•28 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BARTON & GIBB & ANOR (SSAT APPEAL) | [2013] FCCA 644 |
| Catchwords: CHILD SUPPORT – Appeal – SSAT decision – dismissal. |
| Legislation: Corporations Act 2001 |
| LDME v JMA (SSAT Appeal) [2007] 38 FamLR 132 Jordan & Verne (SSAT Appeal) [2012] FMCAfam 21 Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 Tyagi & Meares(SSAT Appeal) [2008] FMCAfam 886 Elias v Commissioner for Taxation [2002] FCA 845 Ladd & Child Support Registrar & Anor (SSAT Appeal) [2010] FMCAfam23 Hartnett v Migration Agents Registration Authority [2004] FCA 50 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Carlson & Acuff & Anor(SSAT Appeal) [2010] FMCAfam 677 Collector ofCustoms v Pozzolanic Enterprises Pty Ltd [1993] FCA 322 Linnan & Linnan (SSAT Appeal) [2009] FMCAfam 353 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Dawson & Dawson (SSAT Appeal) [2010] FMCAfam 221 Clements v Independent Indigenous Advisory Committee (2003) 131 FCA 28 |
| Applicant: | MR BARTON |
| First Respondent: | MS GIBB |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | BRC 630 of 2009 |
| Judgment of: | Judge Coates |
| Hearing date: | 13 March 2013 |
| Date of Last Submission: | 13 March 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 28 June 2013 |
REPRESENTATION
| Solicitors for the Applicant: | Self represented |
| Solicitors for the First Respondent: | Self represented |
| Solicitors for the Second Respondent: | Department of Human Services |
ORDERS
That the Notice of Appeal filed 30 April 2012 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Barton & Gibb is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 630 of 2009
| MR BARTON |
Applicant
And
| MS GIBB |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
This is an appeal against a decision of the Social Security Appeals Tribunal (the Tribunal) dated 27 March 2012.
The appellant seeks the following orders:
a)That the decision of the Tribunal that from 1 March 2011 to 31 October 2012 the Respondent’s adjusted taxable income be increased by $14,702 be set aside and that the Respondent’s adjusted taxable income for that period be set at $37,610.
b)That the Decision of the Tribunal that from 1 March 2011 to 31 October 2012 the Applicant’s adjusted taxable income be set at $69,374 be set aside and that the Applicant’s adjusted taxable income for that period be set at $41,059.
The Appellant relies on six grounds of appeal.
When addressing them I will reproduce those grounds in full, however five of the grounds allege that the Tribunal erred in law by failing to have full and proper regard to various sections of the Child Support (Assessment) Act1989, or in considering the appellant's capacity to pay child support, or in failing to give a correct meaning to in the word earnings (financial resource) in s.117(4), or failing to set out adequate reasons or in failing to provide procedural fairness. He also claims the Tribunal ignored critical evidence and misinterpreted some facts with respect to its decision on the adjusted taxable income for both the appellant and the respondent.
Both the first respondent mother and the second respondent, the Child Support Registrar, opposed the appeal, seeking that it be dismissed.
The first respondent did not file material and she appeared unrepresented.
The Child Support Registrar filed material and submissions following my directions and submits that the appeal should be dismissed because:
a)The applicant’s grounds for appeal fail to state or identify a question of law;
b)The applicant's grounds of appeal impermissibly invite a broad review of the Tribunal’s decision, and impermissibly raise questions of fact or mixed fact and law; and
c)To the extent that any question of law arises from the applicant’s material, it does not disclose any error of law that would justify the orders sought.
This appeal is brought pursuant to s.110B of the Child Support (Registration and Collection) Act 1988. That section states:
“s.110B A party to a review by the SSAT under Part VIIA may appeal to a court having jurisdiction under this Act, on a question of law, from a decision of the SSAT on that review under section 103S.”
It is essential that an appellant states a question of law, that is, identifies the question of law.
This limited jurisdiction given by s.110B of the Act does not allow for an appeal on fact or even a question of mixed fact and law.
In LDME v JMA (SSAT Appeal) [2007] 38 FamLR 132, Halligan FM said:
“19. The Explanatory Memorandum accompanying the Bill that became the New Formula Act says of s.110B:
“Section 110B deals with appeals from decisions of the SSAT. It provides that a party to a proceeding before the SSAT may appeal to a court having jurisdiction, on a question of law, from any decision of the SSAT in that proceeding. This is consistent with how matters are currently appealed from the AAT to a court. The SSAT and AAT are tribunals which consider the merits of a case, whereas a court usually only considers matters which raise a question of law.”
20. The provision creating a right of appeal, on a question of law, from the Administrative Appeals Tribunal (the AAT) is s.44(1), Administrative Appeals Tribunal Act 1975 (the AAT Act), which is in the following terms:
“(1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.”
21. Section 110B and s.44(1) are identical provisions apart from the references to the tribunals whose decisions may be appealed and the court to which the appeal lies. And other provisions of Division 3, Part VII of the Registration Act are based on provisions in relation to appeals, on a question of law, from the AAT, including provisions as to the court’s powers on an appeal (cf. s.110F, Registration Act and s.44(4) and (5), AAT Act) and the limited power to make findings of fact on an appeal (cf. s.110G, and s.44(7), (8) and (9)). Thus, in determining the meaning and operation of provisions of Division 3, decisions as to the meaning and operation of equivalent provisions of s.44 will provide valuable guidance.”
Federal Magistrate Jarrett referred to that case in Jordan & Verne (SSAT Appeal) [2012] FMCAfam 21 and stated that the consistent decisions of this court have been informed by the approach “adopted when dealing with appeals pursuant to s.44(1) of the AAT Act: e.g. LDME & JMA (SSAT Appeal) (above), Tasman & Tisdall [2008] FMCAfam 126, Byrne & Graham (SSAT Appeal) [2010] FMCAfam 1116; Travers & Gibbon (SSAT Appeal) [2011] FMCAfam 543”.
At paragraph 7 he then said:
“7. As to the approach to be adopted on an appeal brought pursuant to s.44(1) of the AAT Act, the principles have recently been summarised by the Full Court of the Federal Court in Rana v Repatriation Commission [2011] FCAFC 124. In that case Kenny, Stone and Logan JJ said:
[11] The right of appeal conferred by s 44 of the AAT Act is a right to appeal to this court "on a question of law". The question of law is, as was emphasised by Gummow J when a judge of this court, the very subject matter of the appeal: TNT Skypak International (Aust) Pty Ltd v FCT (1988) 82 ALR 175 at 178 Recognising this, Ryan J in Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524 highlighted the importance of stating a question of law in the notice of appeal. This importance has been repeatedly emphasised in recent years by the Full Court in cases such as Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at 324-325 (Birdseye); Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290 at 300-302 and Comcare v Etheridge (2006) 149 FCR 522 at 526-527. The need for a notice of appeal to specify a question of law is not just a matter of pleading. In the absence of a question of law there is no subject matter for the appeal and the court has no jurisdiction to entertain the proceeding.
[12] The respondent Repatriation Commission relied upon this line of authority as offering one reason why the appeal against the judgment below should be dismissed.
[13] The learned primary judge was plainly alive to the importance of the requirement that there be a question of law: see in particular para 41 of his Honour's reasons for judgment and the reference to Birdseye. At the time, 0 53 r 3(2) of the (now former) Federal Court Rules 1979 (Cth) required that a notice of appeal separately specify the question of law raised by the appeal and the grounds relied upon in support of the order sought on the appeal. In Birdseye at [18] Branson and Stone JJ drew attention to this rule and to a resultant expectation that the grounds specified in a notice should form a link between the specified questions of law and the orders sought. In effect, the grounds should detail why it is that the nominated questions of law should be answered in a way which entitles the applicant to the orders sought.
[14] The learned primary judge scrutinised the grounds which Mr Rana had specified in his notice of appeal to the end of determining whether there was any such link and also to the end of determining whether, read as a whole, a question of law was in substance revealed by the notice ...
[15] The end result of his Honour's scrutiny of these grounds were conclusions that Mr Rana's appeal from the Tribunal raised no question of law but was, instead, an impermissible endeavour to have the court to review on the merits the question of his pension entitlement. In so concluding, his Honour stated (at [88J-[89]), “This was a case quintessentially which had to be decided upon its facts. The Deputy President addressed all of the relevant evidence and decided the case factually adversely to the applicant ...”
Jarrett FM also stated that he agreed with Halligan FM in LDME v JMA where he quoted from that case at paragraph 8:
“8. Respectfully, I agree with Halligan FM in LDME & JMA (SSAT Appeal) (above) where his Honour said:
[30] Notwithstanding this ideal, in my view this Court must have regard to the statutory requirement binding it to “proceed without undue formality” and to “endeavour to ensure that the proceedings are not protracted” (s 42, Federal Magistrates Act 1999), reflecting the objects of the Federal Magistrates Court Act (see especially s 3(2)(a) and (b)). The eschewing of undue formality is particularly significant in matters, such as child support matters, where unrepresented litigants are a significant phenomenon. The lack of representation of a s 44 appellant has been recognised in this Court as justifying some amelioration of the usually strict requirement in such appeals for the question of law to be stated in the Notice of Appeal (Burgess v Centrelink and Ors [2006] FMCA 1952 at [5] and [6]).
[31] I am therefore of the view that an unduly legalistic or pedantic approach should not be taken in analysing the grounds of appeal stated in the Notice of Appeal. Especially with unrepresented litigants, the Court must strive to identify from the case presented whether a question of law arises that may justify the orders sought and strive, consistent with the requirements of procedural fairness, to deal with the substance of the case.
[32] Of even greater significance in my view is the guidance the above mentioned cases provide to the Court in deciding a section 110B appeal. They illustrate the analysis and process of reasoning required in deciding such an appeal.
[33] Thus, of relevance to s.110B appeals in my view are cases on s.44 appeals in relation to:
what is a “question of law” (for example, Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; Collector of Customs v Agfa-Gevaert Ltd (1996) 196 CLR 389 at 394-399; Repatriation Commission v Hill [2002] FCAFC 192 at [59], (2002) 69 ALD 581; Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 at [6] – [8], (2003) 131 FCR 28, 37 AAR 309); Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 at [45] and [46] per Branson J, (2003) 202 ALR 450, 47 ACSR 649; Hartnett v Migration Agents Registration Authority [2004] FCA 50 at [50])
the centrality to the appeal on a question of law and its impact on the nature of the proceedings (for example, Birdseye above at [10] to [22] per Branson and Stone JJ, (2003) 76 ALD 321, 38 AAR 55: Saxby Bridge, above, at [107] per Jacobsen and Bennett JJ; Comcare v Etheridge above at [13] and [14] per Branson J, with whom Spender and Nicholson JJ agreed; Brown v Repatriation Commission [2006] FCA 914 at [7]);
the necessary connection between the question of law raised on an appeal and the relief sought (for example, Birdseye, above, at [18] per Branson and Stone JJ; Saxby Bridge, above, at [47] per Branson J).”
From those principles the question of law to be identified must be apparent even if an unrepresented litigant, such as the appellant here, has not been able to adequately state, that is state in legal terms, the question of law upon which the appeal should be decided.
It is on that basis that I will attempt to understand his case, if the grounds have not identified a question of law, in order to determine the appeal.
As to the history, the decision of the Tribunal on 27 March 2012, which was dispatched to the parties on 4 April 2012, set aside the decision then under review and substituted a new decision.
The decision was with regard to three children born (omitted) 2005, (omitted) 2006 and (omitted) 2008.
The appellant had sought a departure determination from the Child Support Agency pursuant to s.98B of the Child Support (Assessment) Act 1989 on 2 May 2011, seeking a decrease in his child support liability. The mother, being the first respondent here, made a cross-application seeking an increase in the appellant’s child support liability.
On 7 February 2011, a senior case officer upheld the appellant’s application and determined that his adjusted taxable income for the period 1 March 2011 to 13 April 2011 was fixed at $52,142, a figure below the mother's expectations.
The mother objected and the objection was partly upheld so that the appellant’s adjusted taxable income for the period 1 March 2011 to 30 June 2011 was set at $89,069 and from 1 July 2011 to 31 December 2012 was set at $91,465. For the same periods, the mother’s adjustable taxable income was set at $28,595 and $26,849 respectively.
That is the case which the appellant took to the Tribunal.
The Tribunal decision delivered 27 March 2012 was that the decision under review was set aside and a new decision substituted, being that from 1 March 2011 to 31 October 2012, the appellant’s adjusted taxable income was set at $69,374 and from 1 March 2011 to 31 October 2012 the mother’s adjustable taxable income was increased by $14,702.
The appellant was not wholly unsuccessful before the Tribunal.
In arriving at its decision the Tribunal states its power at paragraph 4 of the reasons in that a departure may be made pursuant to s.98C of the Assessment Act if three requirements are met and the reasons then refer to the grounds for departure referred to in s.117(2), and that it would be just and equitable as regards the child, the liable parent, and the carer entitled to child support and would be otherwise proper.
The reasons then set out the Tribunal’s references and consideration of s.117(2), but does not refer to section numbers.
The Tribunal found in favour of the appellant in relation to a departure stated in s.117(2)(b)(ii). It noted that the appellant did not pursue a departure under s.117(2)(c)(ii) or s.117(2)(a)(iii)(A).
However, the Tribunal also considered, and set this out in its reasons, a departure under ss.117(2)(c)(ia) & (ib) of the Act. At paragraph 12 the Tribunal produced the wording of the particular sections.
The Tribunal records in its reasons that the mother submitted under those sections that the appellant should be assessed on his earning capacity on the basis that he had reduced his working hours from five days to four days per week in July 2011.
Applying considerations under s.117(7B), the Tribunal states in the reasons that it could not assess the appellant’s earning capacity because his caring responsibilities justified his decision to reduce work to four days per week, see paragraph 22.
However, from paragraph 16 the Tribunal records the evidence it had before it about the appellant buying into a (omitted business) which was operated through a trust and the trustee company being (omitted), of which he is the sole director and which has one share, which is jointly owned by the appellant and his brother.
In my view the Tribunal’s reasoning is then a detailed examination of the appellant’s earning capacity and it does so between paragraphs 17 through to 28. These are not short paragraphs. They address an examination of profits, sales and expenses. They also address the depreciation expenses and the company decisions to reduce the appellant’s personal liability by structuring (omitted’s) structure to achieve that. The conclusion is that there are no irregularities, and to reach such a conclusion reflects an in depth analysis of the figures and the evidence.
From the reasons, it is apparent that the appellant submitted that (omitted’s) profits were not available to him because the company needed to retain a profit to act as a buffer against future contingencies and the assets were less than its liabilities. However, in stating that at paragraph 26 of the reasons, the Tribunal then went on and determined that (omitted) had made a contingency or allowance for future expenses by way of depreciations.
In that paragraph the Tribunal asked itself, because it states this, that the question was whether the appellant had a financial resource available to him and concluded that it was a financial resource.
The reasons then go into the stated consideration of whether the decision was just and equitable, a required consideration, and records at paragraph 29 of the reasons that it had regard to a variety of factors: “such as the needs of the children, the parents’ commitments and any hardship that would be caused by departing or not departing from the formula”.
The reasons go on to record and comment on the appellant’s reference to recent changes in (omitted’s) financial circumstances and concluded the information did not present a clear picture of (omitted’s) then current financial position.
The Tribunal records the appellant’s frugal household expenses and said that he was a good saver in that he owns his own house and worked hard to reduce the home loan from $115,000 in May 2011 to $102,000 in February 2012, concluding that “his capacity to repay his home loan so quickly demonstrates a capacity to make a significant contribution towards child support”.
There is much more detailed consideration of the appellant’s position between paragraphs 32 and 44 of the Tribunal’s reasons and at paragraphs 45 and 46 the Tribunal gives its reasons for considering the departure to be otherwise proper and then goes into its conclusions.
That is the background to the appeal.
I will now produce each of the grounds in order to determine whether, knowing what the Tribunal has decided, a question of law has been identified and raised.
As to ground 1 the appellant's case is that:
“The Tribunal erred in law in not fully addressing all relevant Sections of the Child Support (Assessment) Act 1989 (The Act) in arriving at its decision with respect to the Applicant’s adjusted taxable income. In particular the Tribunal failed to have full and proper regard to Sections 117(2A), Section 117(4) of the Act.”
I think he is claiming that there is a lack of reasoning apparent in the decision. However, it is not enough to use the formula that the Tribunal erred in law and I accept the submission from the Child Support Registrar that such was stated in Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at 13 to 15 per Branson and Stone JJ. In that case, it was said that the particular question which arose from a decision must be stated with precision as a pure question of law. In his submissions the appellant said that the Tribunal in its reasons referred to s.117(7B) but failed to outline any component of s.117(7A) of the Act and he said this was not full and proper regard to the legislation highlighted in Tyagi & Meares(SSAT Appeal) [2008] FMCAfam 886.
It is a bare statement in the appellant’s written submissions without actually referring to what the Tribunal has done. While it did not specifically name the sections he refers to, I accept the submission of the Child Support Registrar that the Tribunal did consider the needs of the child and the parents’ commitments and hardship by not making a departure determination and gave extensive consideration to these matters from paragraphs 30 to 44 of the reasons. That reasoning also included under s.117(7A) consideration of income, property and financial resources and capacity to earn. A disagreement on the findings about financial resources does not raise a question of law, because the factual determination has been completed by the Tribunal.
It seems that the appellant is stating that the Tribunal did not follow the law but I do not find that to be the case. The reasons are actually quite extensive and based on the law applicable to the decision, even if not mentioning verbatim what the Act states. There is no need to state verbatim the words of a statute – the requirement being that the law is applied to the facts of a particular case.
In his submissions the appellant said the Tribunal failed to consider that 46 percent of the gross takings of (omitted) was used to pay wages and he refers to an exhibit, but in my view that is merely a question of fact as to what the Tribunal may or may not have determined and a question of fact as such does not equate to a question of law, unless of course the mistake is of such magnitude that it in itself becomes a question of law.
That would probably be based on some decision which was so unreasonable no reasonable decision-maker could make such a decision or be of such a nature that it was apparent that the mistake was not within the boundaries of administrative decision-making under the Act.
In pursuing that enquiry, the appellant states that the Tribunal used the wrong employer letter. Exhibit 1-17 set at exhibit O – again if that is the case it is a mistake of fact. The enquiry is whether such a mistake can be viewed as an error which then allows for the raising of a question of law? I detected no submission as to how such would affect the decision as a whole, the onus on the appellant to make such submission.
He then said the Tribunal failed to outline by exploration or by reason why it thought that (omitted) provided him with income capacity, but in my view the Tribunal sets out its reasoning according to the Act, of its views and findings about the company (omitted) being a resource to the appellant at paragraphs 23 to 28 and paragraph 30. This appeal process is very limited and is not one where factual disagreements about decisions can be ventilated.
The Tribunal did not have to explore the wages and dividends as the appellant seeks to say it did. What the Tribunal had to do was consider the law as it applied to the facts before it. It had to determine from a multitude of facts whether (omitted) became a resource to the appellant, which it did. The appellant reduces the dispute to what he would argue as against the respondent mother, but that is what he did before the Tribunal and the Tribunal considered the assertions of both parties and made its decision. If the Tribunal had decided the issue in favour of the appellant, the reverse argument would be that it wrongly decided that the company did not provide a financial resource – so it can be seen why this is merely a factual issue.
The appellant also said the Tribunal failed to outline how dividends could be paid without considering liabilities but that is a proposition I do not accept because at paragraph 27 of the decision the Tribunal said this:
“27. It is also worth noting that, in the alternative, (omitted’s) profit was available for distribution as a dividend to the shareholders. Legally, if such a dividend were declared, Mr Barton and his brother would jointly be entitled to that dividend. …”
And in the paragraph immediately before that and a reference I have already made, the Tribunal stated that it considered the commercial desirability of (omitted) retaining its profits and also noted that allowance had been made for future expenses by way of depreciation expense entries.
The appellant is arguing that the Tribunal failed to outline how the dividends could be paid without considering liabilities, but that is merely attacking the reasoning process of the Tribunal, a factual matter not open to appeal. The Tribunal has stated its reason as I have recorded here and whether that is a mistake of fact or not, it is not posing a question of law.
As to ground 2 the appellant's case is that:
“2. The Tribunal erred in law in failing to consider the financial circumstances of the company (omitted) (an asset of the Barton Family Trust) when considering the capacity of the Applicant under subsection 117(7A)(a) of the Act.”
The appellant said the Tribunal failed to outline, explore or give reasons for concluding (omitted) provided him with capacity to meet child support – and how such would not be detrimental to the daily running of the business.
His submissions go into detail of the requirements under the Corporations Act 2001 and dividend payments, that the Tribunal failed to consider that 46 percent of gross takings went to wages, and failure to consider dividend payments without considering liabilities, that even if profits were disbursable as found, there was a failure to consider a division to the co-trustee, his brother and a failure to consider nine percent was deducted for superannuation.
He referred me to Elias v Commissioner for Taxation [2002] FCA 845 – where a particular quote states that to take a matter into account was to evaluate it, and to Ladd & Child Support Registrar & Anor (SSAT Appeal) [2010] FMCAfam23, and a quote that liabilities cannot be ignored.
The Registrar relies on cases whereby a failure to consider evidence before it, or whether the evidence was capable of supporting the findings are not questions of law (Hartnett v Migration Agents Registration Authority [2004] FCA 50 and other cases stating these issues were questions of fact.
But in case it be thought that the alleged mistakes were of such a nature that they ought be considered a mistake in law, the Registrar submitted the Appellant "would have to show that there was no evidence before the Tribunal to support a particular finding of fact: see Comcare Australia v Lees (1997) 151 ALR 647 at 652-653 per Finklestein J and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-356 per Mason CJ.
It is worth repeating what Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, even though I was not referred to the wording of the passage by the Registrar. He said:
“As I have explained, findings of fact and inferences of fact are not reviewable under the ADJR Act unless jurisdiction is enlivened by the review of a "decision" or "conduct". Findings of fact, including inferences, may be reviewed under the ADJR Act for error of law (s.5(1)(f)) and on the ground "that there was no evidence or other material to justify the making of the decision" (s.5(1)(h)). It is not necessary to consider the content of the ground in s.5(1)(j), "that the decision was otherwise contrary to law".
87. The question whether there is any evidence of a particular fact is a question of law: McPhee v. S. Bennett Ltd. (1934) 52 WN(N.S.W.) 8, at p 9; The Australian Gas Light Co. v. The Valuer-General (1940) 40 SR(NSW) 126, at pp 137-138. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law: Australian Gas Light, at pp 137-138; Hope v. Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1, at pp 8-9. This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions: Federal Commissioner of Taxation v. Broken Hill South Ltd. [1941] HCA 33; [1941] HCA 33; (1941) 65 CLR 150, at pp 155, 157, 160. So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law: Sinclair v. Maryborough Mining Warden [1975] HCA 17; (1975) 132 CLR 473, at pp 481, 483.
88. But it is said that "(t)here is no error of law simply in making a wrong finding of fact": Waterford v. The Commonwealth [1987] HCA 25; (1987) 163 CLR 54, per Brennan J. at p 77. Similarly, Menzies J. observed in Reg. v. The District Court; Ex parte White [1966] HCA 69; (1966) 116 CLR 644, at p 654:
"Even if the reasoning whereby the Court reached its
conclusion of fact were demonstrably unsound, this would not
amount to an error of law on the face of the record. To
establish some faulty (e.g. illogical) inference of fact
would not disclose an error of law."
89. Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.
90. On the other hand, there are statements in the English cases which support a "no sufficient evidence" test in the context of judicial review of findings of fact: see, for example, Reg. v. Governor of Brixton Prison; Ex parte Armah (1968) AC 192, at pp 235, 257; but cf. pp 241, 263. It remains to be seen whether these statements convey any more than a "no probative evidence" test. So far no occasion has arisen to determine whether this is the case and, if so, whether the statements are to be seen as expressing what is or should be the law of Australia on the topic. There are also statements in the English cases which suggest that findings and inferences are reviewable for error of law on the ground that they could not be reasonably made on the evidence or reasonably drawn from the primary facts: Edwards (Inspector of Taxes) v. Bairstow [1955] UKHL 3; (1956) AC 14, at p 36; Cooper v. Stubbs (1925) 2 KB 753, at p 772; British Launderers' Research Association v. Borough of Hendon Rating Authority (1949) 1 KB 462, at pp 471-472; Ashbridge Investments Ltd. v. Minister of Housing and Local Government (1965) 1 WLR 1320, at p 1326; (1965) 3 All ER 371, at p 374. Further, in Mahon v. Air New Zealand [1983] UKPC 29; (1984) AC 808, the Judicial Committee stated (at p 821) that natural justice requires that "the decision to make (a) finding must be based upon some material that tends logically to show the existence of facts consistent with the finding and that the reasoning supportive of the finding, if it be disclosed, is not logically self-contradictory". These statements may be traced back to the observations of Diplock L.J. in Reg. v. Deputy Industrial Injuries Commissioner; Ex parte Moore (1965) 1 QB 456, at p 488; see also Minister for Immigration and Ethnic Affairs v. Pochi [1980] FCA 85; (1980) 44 FLR 41, per Deane J. at pp 67-68; [1980] FCA 85; 31 ALR 666, at pp 689-690 (an appeal from a decision of the Administrative Appeals Tribunal under the AAT Act). The approach adopted in these cases has not so far been accepted by this Court.”
Having regard to what was said in Bond, it is also apparent from the reasons of the Tribunal in this matter that it considered the company's finances, it concluded the profit was at $28,315 and that such was a financial resource to the appellant. That means it considered the evidence upon which it made its decisions. It did not just make decisions without considering any evidence, although the appellant is stating it failed to take into account the Corporations Act 2001 and dividend treatment.
That is not the issue or the role. The Tribunal made a decision after considering the evidence before it, that evidence produced by the appellant. If he referred to the Corporations Act, then it was before the Tribunal and was considered. If he did not, then it is not a matter which can be raised now. In any case, the submission focuses on an incorrect view of what the Tribunal did. The Tribunal did not decide upon payment of dividends, it decided what was a resource to the appellant in relation to his child support obligations.
There is no question of law raised.
As to ground 3 the appellant's case is that:
“3. The Tribunal erred in law by failing to give the correct meaning to “financial resource” for the purposes of Section 117(4) of the Act in determining that (omitted) is a financial resource available to the Applicant.”
The appellant says the Tribunal failed to examine the meaning of financial resources and such required an analysis of the personal benefits which actually flowed to the appellant from (omitted) and its financial records. He used the term "explore" and submitted the Tribunal failed to fully explore the appellant’s available personal financial resources and there was no examination of non-mortgage expenses documented. He referred to a case, Carlson & Acuff & Anor(SSAT Appeal) [2010] FMCAfam 677 at paragraph 30 it said:
“30. Similarly, it would be a rare case where a person was expected to borrow against a modest home in order to pay child support. There is nothing in the facts of this case to indicate that it would be appropriate to require a parent with shared cared (and now full care of an adult child at university) to borrow against a modest home to make child support payments. It appears to me that on the findings of the Tribunal it was not open to them to conclude that these loan repayments were a financial resource upon which one could justify an increase in child support.”
The appellant does not explain what he means by failing to give the correct meaning to financial resource other than giving a whole lot of facts and figures which must have been issues for the hearing, not for the appeal, unless it can be shown that a question of law arises.
The appellant’s submissions were quite long and in fact I gather that he is just rearguing the position that he put to the Tribunal because he has many facts and figures. He goes into factual issues, for example, the bank statements he submitted and whether these were or were not considered.
What he has to do is identify the question of law.
It is simply not true in my view that the Tribunal did not consider mortgage payments, because I have already referred to the fact that the Tribunal stated and referred to the fact that the appellant could reduce his mortgage payments or debt because he lived frugally, see paragraph 31 of the reasons.
The Child Support Registrar says the term financial resource should be given its ordinary meaning and that the Tribunal’s interpretation is a question of fact and not law. It refers to the Federal Court decision of Collector ofCustoms v Pozzolanic Enterprises Pty Ltd [1993] FCA 322 in which it was said:
“… where a statute uses words according to their ordinary meaning and where it is ‘reasonably open’ to hold that the facts as found fall within those words, then the question whether they do or not is one of fact (at 25) ….”
As pointed out in the Registrar’s submission, determining a liable parent’s child support income based on a financial resource is a matter of judgment and there will always be a range of answers open.
It is a matter of judgment – the same as determining capacity is, based on the evidence being examined.
That is one of the reasons why the appeal can only be based on a question of law and not a question of fact, because the Tribunal in discharging its administrative decision-making capacity, may have a range of answers open to it when trying to determine what is a financial resource open to a particular litigant.
This is then a question of fact and I accept the Registrar’s submission that it was open to the Tribunal as to how it included profit from (omitted) in deciding the financial resources of the appellant, because it has given reasons for coming to its conclusion. There is no question of law disclosed.
As to ground 4 the appellant's case is that:
“4. The Tribunal erred in law by failing to set out adequate reasons for its determination of “just and equitable” in arriving at its decision with respect to the adjusted taxable income of the Respondent. In particular, the Tribunal failed to fully and adequately examine the assets, liabilities, income and expenses of the Respondent. Further, it failed to identify the actual child support rates from their determination.”
On this ground the appellant sets out in his submissions what the Tribunal needed to outline under s.117(4). He then goes on to say that the Tribunal failed to consider assets in exhibit 1-133, payment of HECS debt and the mother’s expenses because there was no separation between her expenses and the children’s expenses.
He said the mother’s taxable income changed in a letter dated 29 October 2011, the effective date being 1 August 2011, which is between the Tribunal’s period of 1 March 2011 to 31 October 2012. He said that the Tribunal was not in a position to determine either financial resources as many of the government benefits such as education allowances, tax benefits A and B and child care benefits were simply not disclosed. He said compounding this was the failure to disclose any bank records or effective pay slips. He says there was no adjusted taxable income determined for the mother in the whole document and that is because it was impossible to calculate what actual rate flows from this decision on a weekly, monthly or annual rate. He said this was not only an error of law but a practical one, as the Child Support Agency also suffered under the confusion.
The appellant referred to Linnan & Linnan (SSAT Appeal) [2009] FMCAfam 353 at paragraph 56 where Riethmuller FM said words to the effect that there is real concern in decisions of this type in the manner in which the Tribunal determined whether or not the outcome was just and equitable.
He then referred to Ladd & Child Support Registrar & Anor (SSAT Appeal) [2010] FMCAfam 23 at paragraph 53(c) and (e) where the Tribunal in that case apparently had not considered income earning capacity, property and other financial resources of the party beyond referring to her annual income.
In this matter, the actual reasons set out the Tribunal’s consideration of what was just and equitable from paragraphs 29 through to 44. Whether it considers a change in the mother’s income or not is irrelevant because the Tribunal records the appellant admitting that the mother’s income ought to be assessed on her earning capacity, see paragraph 36, and it appears to me that is exactly what the Tribunal went and did after referring to the power given it under s.117(7B).
It is difficult to complain later that it did not take into account a change in the taxable income when the appellant himself is recorded as asking the Tribunal to assess the mother’s capacity. The Tribunal clearly states what the appellant asked it to do. This is not the raising of a question of law. The Child Support Registrar says s.103X(b) requires the setting out of reasons, findings on any material questions of fact and reference to evidence and other materials and that is exactly what, in my view, the Tribunal does in its reasons, especially in regard to this claim.
The Child Support Registrar referred me to the Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 where McHugh, Gummow and Hayne JJ stated at 68 a:
“68.… In its terms [s 430], it requires no more than that the Tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the Tribunal to make, and then set out, some findings additional to those which it actually made. … A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision.”
In LDME & JMA Halligan FM stated at paragraph 35:
“35. … The function of the SSAT is not to deliver judgments of jurisprudential excellence when delivering its reasons. In my view, therefore, the above authorities apply to a s.110B appeal, and the court reviewing the reasons for decision of the SSAT in such an appeal to discern legal error should not adopt an overly pedantic approach.”
Nor should it because the Tribunal is making an administrative decision based upon the requirements of the Act. In any case, the appellant in the wording he uses for the ground of appeal says himself that the Tribunal failed to “fully and adequately examine the assets, liabilities, income and expenses of the Respondent” so he accepts that it did identify those issues, but it did not do so in his view of what would be fully and adequately. That is within his view but it is not a view I hold on reading what I consider to be extensive reference to these issues in the reasons given.
The last part of this ground is that the Tribunal failed to identify the actual child support rates from their determination but I accept the Child Support Registrar’s submission that this is not a question of law because there is reference to rates. It is just a decision which went against the appellant.
As to ground 5 the appellant's case is that:
“5. In arriving at its decision with respect to an adjusted taxable income for both the Applicant and the Respondent, the Tribunal erred by ignoring critical evidence adduced, misinterpreted some of the facts put forward and relied on assumptions based on incorrect facts.”
The appellant refers me to various findings or assertions in the reasons, for example at paragraph 16 wherein the Tribunal says that the appellant left the employ of a (omitted) when he says he was actually sacked. He goes on to identify what he says were mistakes at paragraphs 17, 26, 27, 28, 32 and 38.
He gives me no explanation of the Tribunal misinterpreting the facts or relying on assumptions relevant to the only issue which is before this court – and that is whether a question of law is raised. Given that he says the Tribunal erred by ignoring critical evidence, a matter which could result in a question of law, but not expanded upon in terms of how the question of law arose during oral submissions, the appellant really only raises mistake of fact.
As to ground 6 the appellant's case is that:
“6. The Tribunal erred in law by failing to accord procedural fairness to the Applicant in relying on material which:
(a) had not been provided to the Applicant to allow the Applicant the opportunity to respond; or
(b) which the Applicant received so late that he had insufficient time to properly respond.”
His complaint seems to be that the mother has supplied material two days late and he says that not only does the lateness breach Tribunal directions but the Family Law Rules. He says a Tribunal could not have conducted a fair and effective prehearing conference in the absence of the required material. He goes on to state that the mother’s financial statement was missing as well as her government benefits, including tax benefit A and B, Centrelink education allowance, interest on savings and her own child expenses. Then he says that is a consistent pattern of the mother to either give evidence late or not to disclose it. He complains that she was required to submit six months of bank statements and such could have been used by the Tribunal to confirm what was missing in her financial statement. He refers me to Dawson & Dawson (SSAT Appeal) [2010] FMCAfam 221 and states that lack of disclosure was used successfully in that matter.
The Child Support Registrar accepts that denial of procedural fairness is an error of law which may give rise to a question of law and refers the court to Clements v Independent Indigenous Advisory Committee (2003) 131 FCA 28.
But without a transcript of the proceeding, the Child Support Registrar says the appellant cannot establish this ground.
Any question of law has to be apparent to the court.
Procedural fairness, it could be said, is at the heart of administrative proceedings.
It is an important issue.
But without having a transcript, I could not know how the claim of a denial of procedural fairness would be applied in this case, because I do not know what the Tribunal did or did not do.
No question of law is successfully raised on this ground.
The appeal must be dismissed.
I certify that the preceding ninety-seven paragraphs are a true copy of the reasons for judgment of Judge Coates
Date: 28 June 2013
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