CMW22 v Administrative Appeals Tribunal

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FEDERAL COURT OF AUSTRALIA

CMW22 v Administrative Appeals Tribunal [2023] FCA 262  

Appeal from: CMW22 v Administrative Appeals Tribunal [2022] FedCFamC2G 767
File number(s): NSD 776 of 2022
Judgment of: PERRY J
Date of judgment: 24 March 2023
Catchwords:

PRACTICE AND PROCEDURE – where appellant filed notice of appeal from summary dismissal decision in the Federal Circuit and Family Court of Australia (Division 2) – where leave to appeal was required by s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) – where appeal not competent – appeal dismissed

PRACTICE AND PROCEDURE – where allegation of actual/apprehended bias on judge’s behalf – application for judge to recuse herself refused

PRACTICE AND PROCEDURE – where appellant has brought multiple proceedings with respect to the same issue – appropriateness of a vexatious proceedings order pursuant to s 37AO of the FCA Act
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) s 42A(4)

Child Support (Registration and Collection) Act 1988 (Cth) s 110X

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 143

Federal Court of Australia Act 1976 (Cth) ss 24(1A), 24(1D), 37AO

Federal Court Rules 2011 (Cth) rr 35.12, 35.13, 36.72

International Covenant on Civil and Political Rights, 999 UNTS 171 (entered into force 23 March 1976) Art 14

United Nations Convention on the Recovery Abroad of Maintenance 268 UNTS 3 (entered into force 25 May 1957)
Cases cited:

BVG17 v BVH17 [2019] FCAFC 17; (2019) 268 FCR 448

Cavar v Secom Australia Pty Ltd [2022] FCA 1558

Charisteas v Charisteas [2021] HCA 29; (2021) ALJR 824

CMW22 v Administrative Appeals Tribunal [2022] FedCFamC2G 767

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337

Fuller v Toms [2012] FCAFC 155

Huang v University of New South Wales [2014] FCA 1337

Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135

Michael Wilson & Partners v Nicholls [2011] HCA 48; (2011) 244 CLR 427

Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507

Ogawa (formerly Ms PD) v President of the Australian Human Rights Commission (Leave to Appeal) [2022] FCAFC 161

Pryor v Pearce(SSAT Appeal) [2015] FCCA 1240

R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1

Re Page; Hill v Fladgate [1910] 1 Ch 489; (1910) 102 LT 388
Division: General Division
Registry: New South Wales
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 40
Date of last submission/s: 27 January 2023
Date of hearing: Determined on the papers
Counsel for the Appellant The Appellant is self-represented
Counsel for the Respondent The First Respondent filed a submitting notice save as to costs
Solicitor for the Second Respondent Australian Government Solicitor

ORDERS

NSD 776 of 2022
BETWEEN:

CMW22

Appellant
AND:

ADMINISTRATIVE APPEALS…

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Details
Case
[2023] FCA 262
Decision Date

CaseChat Overview and Summary

The case of CMW22 v Administrative Appeals Tribunal involved an appellant who had filed an appeal against a decision of the Administrative Appeals Tribunal (AAT) concerning the registration of a spousal maintenance order. The appellant had previously challenged the registration of the order in 2014, but this was dismissed. The appellant subsequently filed an application for review in the AAT, which was also dismissed on the basis that the appellant had no reasonable prospect of obtaining a more favourable outcome. The appellant then filed a notice of appeal in the Federal Circuit and Family Court of Australia (FCFCOA) against the AAT's decision. The second respondent filed a response seeking summary dismissal of the proceeding, arguing that the appellant had no reasonable prospect of successfully prosecuting the appeal. The appellant subsequently filed an amended notice of appeal, seeking a declaration that the second respondent should apply to the High Court of Australia to dismiss a previous decision of the FCFCOA.

The primary legal issues the court needed to decide were whether the appellant's appeal was competent, whether there was an allegation of actual or apprehended bias on the part of the judge, and whether the appellant's proceedings were vexatious. The court found that the appellant's appeal was not competent because it did not comply with the requirements of section 24(1A) of the Federal Court of Australia Act 1976 (Cth). The court also found that there was no allegation of actual or apprehended bias on the part of the judge, and that there were no grounds for the judge to recuse herself. Finally, the court found that the appellant's proceedings were vexatious because he had brought multiple proceedings with respect to the same issue, and that a vexatious proceedings order was appropriate under section 37AO of the Federal Court of Australia Act 1976 (Cth). The court dismissed the appeal and ordered the appellant to pay the second respondent's costs.

Orders

Orders of the court

1. The appeal is dismissed under rule 36.72 of the Federal Court Rules 2011 (Cth).

2. The appellant is to pay the second respondent’s costs as agreed or taxed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

It follows that my duty is to hear and determine this matter.3. BACKGROUND The facts giving rise to this complaint trace back to the appellant’s marriage in Poland and subsequent divorce in Australia in 2002, as detailed in the reasons for the AAT decision dated 21 June 2022 (2022 AAT decision). As a result of his divorce, a Polish Court made an order on 28 September 2006 requiring the appellant to pay his former wife spousal maintenance (spousal maintenance order): 2022 AAT decision at [8]. On 10 January 2014, the spousal maintenance order was subsequently registered by the Registrar from 7 November 2013 (2022 AAT Decision at [8]), as a consequence of which the appellant had a spousal support liability in Australia. The appellant was dissatisfied with the Registrar’s registration of the spousal maintenance order and, in 2014, sought review in the AAT of the registration on the ground that the order was fraudulent. On 27 August 2014, the AAT affirmed the decision under review, finding (at [29]) that the spousal maintenance order was a registrable maintenance liability which was properly registered on 10 January 2014 (2014 AAT Decision). A challenge by the appellant to the 2014 AAT Decision in the (then) Federal Circuit Court was dismissed as “misconceived and entirely lacking in merit”: Pryor v Pearce (SSAT Appeal) [2015] FCCA 1240 at [2] (Judge Scarlett). On 6 January 2022, the appellant filed an application for review in the AAT in relation to the 2014 AAT decision. The appellant indicated that he was not seeking to re-open the 2014 AAT Decision, but was instead seeking redress from what he alleged was a fraud perpetrated by the AAT. The appellant alleged that this purported fraud had deprived him of the ability to return to Poland, due to debts incurred and the consequent risk of imprisonment if he arrived in that country (2022 AAT decision at [10]). On 21 June 2022, the AAT dismissed the application for review. The AAT held that it had no jurisdiction to review the 2014 AAT decision (at [13]). Further, and in any event, the AAT found that even if it had power to reconsider the matter, there was no prospect that the appellant would get a more favourable outcome (at [13]). This was because, following receipt of further evidence from the Polish Central Authority in 2016, the Registrar made a decision on 6 September 2016 to end the spousal maintenance order from 17 May 2011 (as a result of which an amount of $4,548.46 was repaid to the appellant). This had the effect, in essence, of nullifying the 2014 AAT decision (at [12]‑[13]). On 13 July 2022, the appellant filed a notice of appeal in the FCFCOA in relation to the 2022 AAT Decision, seeking orders (amongst others) dismissing the AAT’s decision. On 10 August 2022, the second respondent filed a response seeking summary dismissal of the proceeding under s 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act), on the ground that the appellant has no reasonable prospect of successfully prosecuting the proceeding.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The appellant was dissatisfied with the Registrar’s registration of the spousal maintenance order and, in 2014, sought review in the AAT of the registration on the ground that the order was fraudulent. On 27 August 2014, the AAT affirmed the decision under review, finding (at [29]) that the spousal maintenance order was a registrable maintenance liability which was properly registered on 10 January 2014 (2014 AAT Decision). A challenge by the appellant to the 2014 AAT Decision in the (then) Federal Circuit Court was dismissed as “misconceived and entirely lacking in merit”: Pryor v Pearce (SSAT Appeal) [2015] FCCA 1240 at [2] (Judge Scarlett). On 6 January 2022, the appellant filed an application for review in the AAT in relation to the 2014 AAT decision. The appellant indicated that he was not seeking to re-open the 2014 AAT Decision, but was instead seeking redress from what he alleged was a fraud perpetrated by the AAT. The appellant alleged that this purported fraud had deprived him of the ability to return to Poland, due to debts incurred and the consequent risk of imprisonment if he arrived in that country (2022 AAT decision at [10]). On 21 June 2022, the AAT dismissed the application for review. The AAT held that it had no jurisdiction to review the 2014 AAT decision (at [13]). Further, and in any event, the AAT found that even if it had power to reconsider the matter, there was no prospect that the appellant would get a more favourable outcome (at [13]). This was because, following receipt of further evidence from the Polish Central Authority in 2016, the Registrar made a decision on 6 September 2016 to end the spousal maintenance order from 17 May 2011 (as a result of which an amount of $4,548.46 was repaid to the appellant). This had the effect, in essence, of nullifying the 2014 AAT decision (at [12]‑[13]). On 13 July 2022, the appellant filed a notice of appeal in the FCFCOA in relation to the 2022 AAT Decision, seeking orders (amongst others) dismissing the AAT’s decision. On 10 August 2022, the second respondent filed a response seeking summary dismissal of the proceeding under s 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act), on the ground that the appellant has no reasonable prospect of successfully prosecuting the proceeding. On 12 August, the appellant filed an amended notice of appeal, seeking an order that “[t]he Court issues a declaration that the Second Respondent make an application to the High Court of Australia to dismiss the order [2015] FCCA 1240 based on the recognition of the limitation for Polish order made on 28 September 2006 up to 17 May 2011 given by the Tribunal under AAT Act 1975 in a child support first review”. The amended notice of appeal identified two purported questions of law, as follows: 1.Whether the second Respondent is obliged by law to make an application to the High Court of Australia to dismiss order [2015] FCCA 1240 to give effect to AAT’s decision of 21 June 2022 which is saying that the Registrar’s decision of 6 September 2016 is in effect and it nullified the 27 August 2014 decision of the AAT which means the decision has no practical effect after the Registrar has limited the spousal maintenance pursuant to Section 37 of the CSRC Act 1989 within the Australian Government Services Australia Child Support only on request under the UNCRAM made by overseas court ?2.Whether the limitation of the spousal maintenance up to 17 May 2011 made by the Child Support Registrar’s decision of 6 September 2016 within the Australian Government Services Child Support Jurisdiction (only) is a proper act under UNCRAM, after the AAT’s approval for the Registrar’s decision by the review 2022/SC023323 under the AAT Act 1975 ?(Emphasis in original.)The reference to UNCRAM is a reference to the United Nations Convention on the Recovery Abroad of Maintenance 268 UNTS 3 (entered into force 25 May 1957).

Ratio Decidendi

Legal Principle Established

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