Bayne v Brook

[2019] FCCA 3283

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAYNE v BROOK & ANOR [2019] FCCA 3283

Catchwords:
CHILD SUPPORT – Child Support – Appeal of Administrative Appeals Tribunal Decision – baseless grounds of appeal – grounds misconceived and provide no basis for error of law – no prospect of success – application dismissed.

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), ss.44, 44AAA

Child Support (Assessment) Act 1989 (Cth), ss.112, 116, 117

Federal Circuit Court rules r.13, Item 2, Schedule 1, Part 2, Division 2

Cases cited:

CNN15 v Minister for Immigration and Border Protection [2017] FCA 579
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 289
Minister for Immigration and Ethnic Affairs v Gungor (1982) 42 ALR 209
Minister for Immigration and Multicultural Affairs v Jiageng (2001) 205 CLR 507
MZARG v Minister for Immigration and Border Protection [2018] FCA 624
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749
VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102
WZATH v Minister for Immigration and Border Protection [2014] FCA 969
WZATH v Minister for Immigration and Border Protection [2014] FCCA 612
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Applicant: MR BAYNE

First Respondent: MS BROOK

Second Respondent: CHILD SUPPORT REGISTRAR

File Number: MLG 1516 of 2019

Judgment of: Judge C. E. Kirton QC

Hearing date: 12 November 2019

Date of Last Submission: 12 November 2019

Delivered at: Melbourne

Delivered on: 15 November 2019

REPRESENTATION

No appearance by the Applicant.

The First Respondent appeared in person.

Solicitors for the Second Respondent: Sparke Helmore

ORDERS

1. The Notice of Appeal (Child Support) filed on 16 May 2019 be dismissed.

2. The Applicant pay the Second Respondent’s costs fixed in the sum of $3,604.

IT IS NOTED that publication of this judgment under the pseudonym Bayne v Brook & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1516 of 2019

MR BAYNE

Applicant

and

MS BROOK

First Respondent

and

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

1. On 5 April 2019 the Administrative Appeals Tribunal (Tribunal) affirmed a decision of a delegate of the Second Respondent (Registrar) made under s.117 of the Child Support (Assessment) Act 1989 (Assessment Act) that the Applicant’s adjusted taxable income should be varied to $84,944 for the period from 5 June 2018 to 31 December 2019 (Tribunal Decision).

2. On 16 May 2019 the Applicant filed a Notice of Appeal (Child Support) (Appeal) by which the Applicant sought the following orders:

   1.  Removal of the decision to depart with respect to childcare fees.

   2. A section 112 be granted so a just and equitable division can be made.

3. This matter first came before the Court on 5 September 2019 and orders were made which may be summarised as follows:

   a)The matter be listed for final hearing on 17 February 2020.

   b)The Applicant have leave to file any amended Notice of Appeal (Child Support) seeking orders within the Court’s jurisdiction and pleading a question or questions of law, provided that such an amended application is filed by 5 October 2019.

   c)The Respondents have liberty to apply for summary dismissal in the event that the Applicant fails to file an amended Notice of Appeal (Child Support).

   d)Trial directions were also made.

4. The Applicant was afforded the opportunity to amend the Appeal but failed to do so.

5. On 11 October 2019 the Second Respondent filed an Application in a Case and an affidavit in support of the Application in a Case[1].  On 31 October 2019 an Amended Application in a Case (Application in a Case) was filed seeking orders that:

   a)The Appeal filed on 16 May 2019 be summarily dismissed:

   i)Pursuant to r.13.10(a) of the Federal Circuit Court Rules 2001 (Cth);

   ii)In the alternative, pursuant to r.13.03A(1)(a) and r.13.03B(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

   b)The Applicant pay the Registrar’s costs of the proceeding.

   [1] Affidavit of  Ms A, sworn 11.10.19, filed 11.10.19.

6. The Application in a Case was listed for hearing on 12 November 2019.  On 4 November 2019 the Registrar filed Written Submissions in Support of the Application for Summary Dismissal.

7. The Applicant did not attend the hearing for summary dismissal of the Appeal on 12 November 2019. 

Jurisdiction of the Court

1. The Tribunal Decision was made by a member of the Tribunal, therefore the Court has jurisdiction: s.44AAA(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).

2. The Court is limited to identifying an error of law in the Tribunal Decision: s.44(1) and s.44AAA(1) of the AAT Act. While the power to grant relief is broad and includes such order the Court “[…] thinks appropriate by reason of its decision” (s.44(4) of the AAT Act), that power is not unlimited. In Minister for Immigration and Ethnic Affairs v Gungor (1982) 42 ALR 209 the Full Court of the Federal Court said:

   The powers of this court on appeal under s 44 of the AAT Act are limited to consideration of alleged errors of law by the Tribunal and go no further. There is certainly no power to supervise the Tribunal in any other way and in particular, to deal with the merits of the review. The error of law alleged has to be isolated out, a decision made on this question of law and such order made in directions given as are appropriate only to the decision of this question of law, and are not to the decision under review by the Tribunal[2].   

   [2] Minister for Immigration and Ethnic Affairs v Gungor (182) 42 ALR 209, 221 (Sheppard J, Fisher J agreeing).

Invalid Application – Section 112 Assessment Act   

1. The Applicant seeks the following relief in order 2 (Order 2):

   A section 112 be granted so a just and equitable division can be made.

2. The Solicitor for the Registrar submitted that the Applicant was seeking leave of the Court under s.112 of the Assessment Act to amend an administrative assessment that was more than 18 months old. However in this case the administrative assessment the subject of the Tribunal’s review commenced on 30 January 2018[3] and was therefore within the 18 month time limit at the time the Appeal was filed on 16 May 2018. Therefore to the extent that the Applicant sought a Court ordered departure from the relevant assessment, the application should have been brought under s.116 of the Assessment Act.

   [3] Tribunal Decision, at [3].

3. The Solicitor for the Registrar submitted that an application under either s.112 or s.116 of the Assessment Act must be brought in the correct form, being by way of an Initiating Application—Family Law, naming the correct parties, namely the Applicant and the First Respondent. Use of the Initiating Application—Family Law form is important as an appeal from a decision under s.112 and s.116 of the Assessment Act lies to the Family Court, whereas an appeal from any decision under s.44 and s.44AAA of the AAT Act is to the Federal Court.

4. I accept the Registrar’s submission with respect to Order 2 and determine that Order 2 is an invalid order to be sought in the Notice of Appeal (Child Support).

5. I now turn to consider the Question of Law and Grounds of Review.

Question of Law and Grounds of Appeal

1. Under the heading Question of Law in the Notice of Appeal the following is written:

   I don’t believe the decision is just and equitable.  Registrar P.  Noonan showed prejudice in the mention hearing and also in his decision statement 25.

2. The Notice of Appeal articulated three grounds of appeal (errors in original).

   1.  My income when self employ up until the 12/5/18 was grossly infal to ensure I was the payer instead of the payee.

   2.  Prejudice against self-employed people.

   3. I was not granted access to counselling as per section 17 of Child Support Assessment Act.

Consideration

1. An applicant may not appeal to the Court because they simply disagree with the decision.  An appeal lies only in relation to a question of law, which must ordinarily be set out with precision so as to ensure the merits of a case are dealt with, not by the Court, but by the Tribunal: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 289, 287.

2. The question of law articulated by the Applicant and referred to in paragraph 15 is not a proper question of law.

3. Ground one is expressed as a submission and seeks impermissible merits review.  Ground one has no prospect of success as it is incapable of disclosing an error of law. 

4. Ground 2 could possibly have identified a question of law, namely that the Tribunal was prejudiced. However, it is well established that an allegation of bias must be firmly and distinctly made and clearly proven: Minister for Immigration and Multicultural Affairs v Jiageng (2001) 205 CLR 507, 531 (Gleeson CJ and Gummow J). The making of an adverse finding or decision will not be a sufficient basis to ground a finding of bias: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749, [44]; VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102, [21].  

5. The Applicant has not provided a basis for his allegation of bias and adduced no evidence in support of the allegation.  Ground two is an unparticularised assertion of jurisdictional error. A failure to particularise a ground of review is a sufficient basis for it to be dismissed: WZATH v Minister for Immigration and Border Protection [2014] FCCA 612, at [60] and upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760, at [35]; CNN15 v Minister for Immigration and Border Protection [2017] FCA 579, at [21]; MZARG v Minister for Immigration and Border Protection [2018] FCA 624, at [25].

6. Ground two therefore fails.

7. The third ground is misconceived. Section 17 of the Assessment Act relates only to the counselling facilities in the Family Court or a Family Court of a State, not in the Tribunal, as was the case here. Accordingly ground three also fails.

Conclusion

1. I determine that the Appeal discloses no arguable error of law in the Tribunal Decision and the Appeal has no prospects of success. I therefore dismiss the proceeding pursuant to r.13.10(a) of the Federal Circuit Court Rules 2001 (Cth).

Costs

1. The Registrar seeks costs in the sum of $3,304 in accordance with Item 2, Schedule 1, Part 2, Division 2 of the Federal Court Rules 2001 (Cth), being a proceeding concluded after the first court date and at least 4 weeks before the final hearing for the proceeding. 

2. I determine that the Applicant shall pay the Registrar’s costs in the sum of $3,604 and an order will be made accordingly.   

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge C. E. Kirton QC

Date: 15 November 2019