Blundell v Blumanis

[2004] NSWSC 920

CITATION:	Blundell v Blumanis [2004] NSWSC 920
HEARING DATE(S):	5 October 2004
JUDGMENT DATE:	12 October 2004
JURISDICTION:	Common Law Division
JUDGMENT OF:	Master Malpass at 1
DECISION:	The summons is dismissed; the plaintiff is to pay the costs of the summons.
CATCHWORDS:	Incompetent appeal - extension of time - discretionary considerations.
LEGISLATION CITED:	Child Support (Registration and Collection) Act 1988
CASES CITED:	Deputy Child Support Registrar & Froehlich 14 Fam LR 526
PARTIES :	Lisa Blundell (Plaintiff) David Blumanis (Defendant)
FILE NUMBER(S):	SC 13286 of 2003
COUNSEL:	Mr P Harper (Plaintiff) Mr R Maurice (Defendant)
SOLICITORS:	Peter Baker (Plaintiff) Doolan Wagner & Callaghan (Defendant)

LOWER COURTJURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	159 of 2002
LOWER COURT JUDICIAL OFFICER :	Stapleton LCM

- 2 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

12 October 2004

13286 of 2003 Lisa Blundell v David Blumanis

JUDGMENT

1 Master: The plaintiff is the former wife of the defendant. The parties were divorced on 8 January 1998. There are two children of the relationship. One is now an adult (18 years of age). The other is 14 years of age.

2 At about the time that the parties separated (on or about 12 April 1996), the defendant was assessed by the Child Support Agency (CSA) for child support liability to the plaintiff. Prior to 19 December 2002, payments had been made under informal arrangements reached between the parties. On 19 December 2002, application was made for the child support to be collected by the CSA (this was done by registration of the liability).

3 Between 26 October 2001 and 21 March 2002, the children resided with the defendant.

4 On 15 February 2002, the plaintiff brought proceedings in the Local Court for the recovery of alleged arrears of child support. This followed the making of further interim orders enabling the children to continue residing with the defendant.

5 The claim related to a period from 1 July 1998 to 28 February 2001. The amount claimed was in the sum of $21,222.80. The claim was disputed. The defendant claimed to have paid an equivalent amount in respect of various matters (including for private school fees and medical expenses). He also brought a cross-claim. It sought to recover payments allegedly made in excess of the child support liability.

6 At the time of the commencement of the proceedings, the plaintiff had used the services of legal advisers (they drafted her statement of claim). They ceased to act for her prior to the hearing.

7 A hearing took place before Stapleton LCM. At that time, both parties were unrepresented.

8 The plaintiff gave oral evidence. She did not tender any documentation in support of her case (including the child support assessments and other CSA documentation). However, the defendant agreed that the amount assessed was as set out in her pleading. There are references in the transcript which give the impression that she gave little assistance to the learned magistrate in the presentation of her case. Any documentation that was placed before the court, came from the defendant.

9 It appears that the claim was defended inter alia on the basis that there were no arrears by reason of the payments made to “third parties”. Largely, the making of the payments did not seem to have been in dispute. The real dispute was whether or not they should have been taken into account in satisfaction of the child support liability.

10 Judgment was delivered on 28 July 2003. Both the plaintiff’s claim and the cross-claim were dismissed. In dismissing the claim, the learned magistrate relied on the provisions of s30 of the Child Support (Registration and Collection) Act 1988 (the Act). It was determined that the plaintiff did not have the right to sue for the arrears at the date of hearing (it was held that it was vested in the Commonwealth).

11 It would seem that the cross-claim had pleading deficiencies (it did not set out any legal basis for what had been claimed). It failed inter alia because evidence was not led to demonstrate a legal basis for recovery.

12 The disputed question of whether or not there were any arrears appears to have been left unresolved. It was unnecessary to proceed beyond what the learned magistrate regarded as the “first question for determination”.

13 Thereafter, the plaintiff sought legal advice concerning an appeal. She was granted legal aid. On 25 August 2003, she brought an appeal in the Family Court of Australia (an amended notice of appeal was later filed). On or about 28 October 2003, from material provided by the defendant, her legal advisers became aware that the appeal may have been erroneously brought in the Family Court. Advice was then sought from counsel. It was obtained on 18 November 2003. The plaintiff was advised inter alia that the appeal had to be brought in this court.

14 On 10 December 2003, the plaintiff filed a summons in this court. It purports to bring an appeal from the decision of the Local Court. It is contended that there is error in point of law. It is said that the learned magistrate erred in the construction of the Act. It is submitted that the plaintiff retained the right to sue for arrears accrued prior to registration.

15 On 12 December 2003, the appeal in the Family Court was withdrawn. The defendant was awarded a nominal sum for costs (in the order of $500).

16 The appeal in this court is presently incompetent. It is well out of time. It can only be maintained if an extension of time is granted.

17 The court has a discretionary power to extend time. It is exercised having regard to the circumstances of a particular case before the court and so that the interests of justice are best served. The onus is borne by the plaintiff.

18 By consent, the court heard both the application for extension of time and the appeal contemporaneously.

19 The alleged error in point of law has been but little argued. What has been said on behalf on the plaintiff has left me unpersuaded. The defendant has vigorously contested the application for extension of time and has referred to various other matters for the purpose of demonstrating lack of merit in the appeal.

20 Section 30(1) provides that if a registrable maintenance liability is registered under the Act, amounts payable under the child support assessment are debts due to the Commonwealth by the payer in accordance with the particulars of the liability entered in the Child Support Register. Section 30(3) provides that if a registrable maintenance liability is registered under the Act, the payee is not entitled to, and may not enforce payment of, amounts payable under the liability.

21 It seems that the relevant statutory provisions have been the subject of little judicial consideration. In Deputy Child Support Registrar & Froehlich 14 Fam LR 526 at 529, Kay J observed that the effect of the Act is to interpose the CSA between the payer and payee; that it has a sole and exclusive right to collect “as long as the orders remain registered with it” and that the wife cannot herself collect the money but must use exclusively that agency.

22 I shall return to the question of statutory construction in due course.

23 The appeal has been brought well out of time (about five and a half months). It is sought, at least largely, to explain the delay by reason of the abortive appeal to the Family Court. In my view, the delay has not been sufficiently explained. Indeed, what is offered falls well short.

24 Presumably, the abortive appeal was the product of error on the part of the plaintiff’s legal advisers. It has been so categorised by the defendant. Such a categorisation has not been rebutted.

25 Strictly speaking, the plaintiff’s material does not explicitly refer to error as such. The plaintiff deposes that “I was advised by Mr Baker that the Family Court could not hear my appeal”. Little else is offered to explain why an appeal was first brought in the Family Court. The relevant legal adviser has not deposed to the matter in an affidavit.

26 For completeness, I should add that if erroneous advice be the cause of the appeal being brought out of time then she may have an alternative remedy available to her.

27 Apart from the question of delay and the explanation offered for it, the defendant has strongly pressed a case of prejudice.

28 If time is extended, the defendant may be facing further legal proceedings in respect of a claim that goes back to 1998. It is a claim which relates to a period of many months in which the children were residing with the defendant. There is also the question of the equivalent amount that has been allegedly paid for inter alia school fees and medical expenses. If such payments have been made, the plaintiff’s position is largely similar to what it would have been had she received direct payment of the assessment liability. The defendant has already been put to the expense of the abortive Family Court proceedings (in which he was only granted nominal costs).

29 The amount claimed is not large. The costs generated by the litigation are now disproportionate to that sum.

30 If it be assumed that there was error in point of law as alleged, it may be that there would still be no utility in granting an extension of time. It is by no means clear that the plaintiff would ultimately be successful, if the extension was granted and this appeal was upheld. The question of arrears was left unresolved and the defendant may be successful on that issue. As I understand the position presented by counsel for the plaintiff, it is not disputed that at least certain of the payments arguably may be treated as satisfying the assessment liability.

31 In the circumstances, I am not satisfied that an extension of time should be granted. In my view, the plaintiff has failed to discharge the onus borne by her. Accordingly, the appeal must fail.

32 By reason of the reaching of that view, it is unnecessary to give any further consideration to the alleged error in point of law. The question is perhaps better left for an occasion when it can be fully argued. It seems to me to be one that may involve a detailed consideration of the relevant provisions.

33 The summons is dismissed. The plaintiff is to pay the costs of the summons.

Last Modified: 10/13/2004