Cog15 & Child Support Registrar
[2016] FamCAFC 272
•22 December 2016
FAMILY COURT OF AUSTRALIA
| COG15 & CHILD SUPPORT REGISTRAR AND ANOR | [2016] FamCAFC 272 |
| FAMILY LAW – APPEAL – LEAVE TO APPEAL – CHILD SUPPORT – Where the appeal from the Social Security Appeals Tribunal to the Federal Circuit Court of Australia was filed before the commencement of the Tribunals Amalgamation Act 2015 (Cth) but heard and determined afterwards – Where ss 110B and 110F of the Child Support (Registration and Collection Act) 1988 (Cth) thus applied as though they were not repealed (s 7(2)(e) Acts Interpretation Act 1901 (Cth)) and the Family Court of Australia had jurisdiction to hear the appeal – Where the appellant’s claim that he was denied procedural fairness lacks substance – Where the appellant was afforded a reasonable opportunity to present his case – Where it was open to the trial judge to find that the appeal book provided by the first respondent comprised copies of all of the documents before the Social Security Appeals Tribunal – Where the trial judge addressed these documents at length and clarified with the appellant where they were referred to in the reasons for judgment of the Social Security Appeals Tribunal – Where the court is satisfied these documents were before the Social Security Appeals Tribunal – Where it was not established that the trial judge failed to have regard to these documents – Where a financial impact resulting from court orders does not by itself justify a grant of leave to appeal – Where the view expressed by one judge when hearing a security for costs application cannot bind another who subsequently hears and determines the appeal – Where the appellant’s claim of bias was not distinctly made and clearly proved – Where it is not open to the appellant to suggest that the trial judge determined the matter without having read the reasons for judgment of the Social Security Appeals Tribunal – Where the appellant’s complaints comprise bare assertions and are devoid of detail or substance – Where the grounds of appeal failed to demonstrate any error of law – Where there is no error of principle or substantial injustice – Application for leave to appeal dismissed. FAMILY LAW – APPEAL – COSTS – Where the first respondent sought their costs in the event leave to appeal was not granted – Where the appellant was wholly unsuccessful – Where financial impecuniosity is not a bar to an order for costs where such order is otherwise justified – Costs ordered in favour of first respondent. |
| Acts Interpretation Act 1901 (Cth) – s 7(2) Family Law Rules 2004 (Cth) |
| Allesch v Maunz (2000) 203 CLR 172 Child Support Registrar & Ahern (2014) FLC 98-063 Forbes & Bream [2010] FamCAFC 6 Gilmour and Gilmour (1995) FLC 92-591 Gyselman and Gyselman (1992) FLC 92-279 Hendy v Deputy Child Support Registrar (2001) 164 FLR 236 Medlow & Medlow (2016) FLC 93-692 Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 Rutherford and Rutherford (1991) FLC 92-255 |
| APPELLANT: | COG15 |
| FIRST RESPONDENT: | Child Support Registrar |
| SECOND RESPONDENT: | COH15 |
| FILE NUMBER: | SYG SYC | 3263 6227 | of of | 2015 2014 |
| APPEAL NUMBER: | EA | 15 | of | 2016 |
| DATE DELIVERED: | 22 December 2016 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Strickland, Ainslie-Wallace & Kent JJ |
| HEARING DATE: | 29 April 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 23 December 2015 |
| LOWER COURT MNC: | [2015] FCCA 3480 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE 1ST RESPONDENT: | Mr Kaplan |
| SOLICITOR FOR THE 1ST RESPONDENT: | Australian Government Solicitor |
| THE 2ND RESPONDENT: | No appearance |
Orders
The application for leave to appeal be dismissed.
The appellant pay the costs of the first respondent of and incidental to the application for leave to appeal such costs to be assessed in default of agreement.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym COG15 & Child Support Registrar and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 15 of 2016
File Number: SYG 3263 of 2015 & SYC 6227 of 2014
| COG15 |
Appellant
And
| Child Support Registrar |
First Respondent
And
COH15
Second Respondent
REASONS FOR JUDGMENT
Strickland and Kent JJ
Introduction
By Notice of Appeal filed on 19 January 2016, COG15 (“the apellant”) seeks leave to appeal, and if leave is granted, to appeal the order made by Judge Street on 23 December 2015. The order appealed dismissed the appellant’s Notice of Appeal which sought leave to appeal the decision of the then Social Security Appeals Tribunal (“SSAT”) made on 2 September 2014 pursuant to the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”).
The appeal is opposed by the Child Support Registrar (“the first respondent/the Registrar”). COH15 (“the second respondent”) did not participate in the appeal.
Background & Procedural History
The appellant and the second respondent have three children, X, Y and Z.
On 21 October 2010 an administrative assessment of child support was first issued in relation to the said children.
On the application of the appellant, on 3 September 2012 the SSAT set the adjusted taxable income of the appellant and the second respondent from 4 October 2011 to 31 October 2013 at $64,865 and $47,368 respectively.
Between 1 January 2012 and 31 March 2015 the appellant and second respondent were assessed to pay child support as follows (see written submissions of first respondent at paragraph 7):
a)From 1 January 2012 to 31 March 2013 the appellant was assessed to pay at an annual rate of $2,529 based on the adjusted taxable incomes of the parties set by the SSAT on 3 September 2012.
b)From 1 April to 31 October 2013 the appellant was assessed to pay at an annual rate of $2,538 based on the same figures as above, with the slight increase attributable to factors not relevant to this appeal.
c)From 1 November 2013 to 31 December 2013 the second respondent was assessed to pay at an annual rate of $2,355 based on an adjusted taxable income of $16,282 for the appellant and $38,339 for the second respondent.
d)From 1 January 2014 to 31 March 2015 the second respondent was assessed to pay at an annual rate of $2,241 based on an adjusted taxable income of $17,859 for the appellant and $38,721 for the second respondent.
On 7 August 2013, pursuant to s 98B of the Assessment Act, the second respondent applied to the Registrar seeking a determination under Part 6A of that Act that the child support payable by her from 1 November 2013 to 31 October 2018 be $0. In support of this application the second respondent claimed that the administrative assessments were unfair by reason of the appellant’s income, property, financial resources or earning capacity.
In his response to this application, the appellant also sought a determination under Part 6A based on the costs of maintaining X and Y, which he claimed were significantly affected because of the costs of caring for them, educating and training them, and also due to the second respondent’s earning capacity.
A delegate of the Registrar fixed the annual rate of child support payable by each of the appellant and second respondent for the period of 24 July 2013 to 31 July 2016 at $0 on 17 December 2013.
The appellant objected to this decision on 9 January 2014 pursuant to s 80 of the Child Support (Registration and Collection) Act 1988 (Cth) (“Registration and Collection Act”).
That objection was disallowed on 7 March 2014.
On 7 March 2014, pursuant to s 89 of the Registration and Collection Act, the appellant applied to the SSAT for a review of the objection decision.
On 14 July 2014 a hearing took place before the SSAT.
On 2 September 2014 the SSAT set aside the objection decision and substituted for it a decision to set the appellant’s adjusted taxable income at $90,000 for the period 1 November 2013 to 31 December 2015.
The appellant appealed this decision to the Federal Circuit Court of Australia (“FCCA”) on 1 October 2014 pursuant to s 110B of the Registration and Collection Act. Though this section was repealed prior to the determination of the FCCA, as we will explain later in these reasons, the appellant’s right to appeal was preserved by operation of the Acts Interpretation Act 1901 (Cth) (“Acts Interpretation Act”). The appeal was heard by the primary judge on 23 December 2015, on which date his Honour dismissed the appellant’s appeal.
On 19 January 2016 the appellant filed a Notice of Appeal in relation to the decision of the primary judge.
The jurisdiction of this court to hear this appeal
Prior to 1 July 2015, s 110B of the Registration and Collection Act provided that a party to a proceeding before the SSAT under Part VIIA of that Act could appeal to a court having jurisdiction under that Act, on a question of law, from any decision of the SSAT in that proceeding. Section 104 of the Registration and Collection Act conferred jurisdiction under that Act on both the Family Court of Australia and the Federal Circuit Court of Australia, but as a matter of practice these appeals were heard by the latter court.
Section 106 of the Registration and Collection Act established the appellate jurisdiction of the Family Court of Australia. This included applications for leave to appeal, and appeals, under ss 107, 107A and 110 of that Act. Relevantly, s 107A provides that appeals lay to the Family Court of Australia, with leave, from a decree of the FCCA exercising original jurisdiction under the Registration and Collection Act. Section 10(2) of the Federal Circuit Court of Australia Act 1999 (Cth) provides that the original jurisdiction of the Federal Circuit Court of Australia includes any jurisdiction vested in it to hear and determine appeals from, inter alia, Tribunals.
On 1 July 2015 the Tribunals Amalgamation Act 2015 (“Cth”) (“Tribunals Amalgamation Act”) commenced. The purpose of that Act was, inter alia, to merge the SSAT with the Administrative Appeals Tribunal (“AAT”). Further,
s 110B of the Registration and Collection Act was repealed with the effect that appeals on a question of law from decisions of the Administrative Appeals Tribunal (Social Services and Child Support Division) will only be heard by the Federal Court of Australia, or by the FCCA on remitter from the Federal Court of Australia.
However, by operation of s 7(2) of the Acts Interpretation Act any appeal instituted but not heard and determined prior to 1 July 2015 continues as though s 110B had not been repealed. This of course is the position with the appellant’s appeal to the FCCA having been instituted on 1 October 2014, but not heard until 23 December 2015, and this was impliedly recognised by the primary judge at [1].
Section 7(2) of the Acts Interpretation Act relevantly provides as follows:
Effect of repeal or amendment of Act
…
(2)If an Act … repeals or amends an Act (the affected Act) or a part of an Act, then the repeal or amendment does not:
…
(b)affect the previous operation of the affected Act or part (including any amendment made by the affected Act or part), or anything duly done or suffered under the affected Act or part; or
(c)affect any right, privilege, obligation or liability acquired, accrued or incurred under the affected Act or part; or
…
(e)affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment.
Any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the affected Act or part had not been repealed or amended.
Section 110F of the Registration and Collection Act was also repealed by the Tribunals Amalgamation Act, and that section relevantly provided as follows:
Powers of courts
(1)The court must hear and determine an appeal under this Subdivision and may make such order as it thinks appropriate by reason of its decision.
(2)Without limiting subsection (1), the orders that may be made by the court on an appeal include:
(a)an order affirming or setting aside the decision of the SSAT; or
(b)an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the SSAT in accordance with the directions of the court.
By reason of s 7(2)(e) of the Acts Interpretation Act the order made by the primary judge on 23 December 2015 should be treated as having been made under s 110F(1) of the Registration and Collection Act, as though that provision had not been repealed on 1 July 2015.
The Tribunals Amalgamation Act does not affect the jurisdiction of the Family Court of Australia to hear and determine applications made under s 107A of the Registration and Collection Act, namely the section under which this appeal is brought. Section 107A(1)(a) provides as follows:
Appeals to Family Court from the Federal Circuit Court and the Magistrates Court of Western Australia
(1) An appeal lies, with the leave of the Family Court, to the Family Court from:
(a)a decree of the Federal Circuit Court of Australia exercising original jurisdiction under this Act;
…
The word “decree” is defined in s 4(1) of the Registration and Collection Act as “ha[ving] the same meaning as in the Family Law Act 1975 (Cth)”. Subsection (4)(1) of the Family Law Act 1975 (Cth) (“the Act”) defines the word “decree” as meaning, relevantly, “decree, judgment or order”.
The FCCA made an “order” dismissing the appellant’s Notice of Appeal, that order was made by that court in the exercise of its original jurisdiction under the Registration and Collection Act, specifically under s 110B of that Act, and it should be treated as though it was made pursuant to s 110F(1).
Thus, this court has jurisdiction to entertain the appellant’s application for leave to appeal, and if leave is granted, his appeal.
In summary, and for the avoidance of doubt:
a)As of 1 July 2015:
·appeals to the FCCA (or to the Family Court of Australia) from the SSAT where the appeal was filed in the FCCA, (or the Family Court of Australia), prior to 1 July 2015, and
·appeals to the Family Court of Australia from the FCCA in relation to appeals made to the FCCA from the SSAT where the appeal was filed in the FCCA prior to 1 July 2015,
will be continued in the court where the appeal has been initiated until finalisation.
Summary of Primary Judge’s Reasons
The primary judge commenced his reasons for judgment by recording that the FCCA had jurisdiction to hear the appeal pursuant to s 110B of the Registration and Collection Act, noting that “[t]he right of appeal … is confined to an appeal only on a question of law” (at [1]). His Honour then set out the appellant’s grounds of appeal, and set out the material received into evidence, and the documents read by way of background.
At [4] and [5] his Honour detailed difficulties with regard to a missing “original court book” which “was not amongst the material provided to this Court”. In the end result, the first respondent provided a copy of the book and the court marked the original book and the index as separate exhibits. The appellant “expressed uncertainty as to what material was contained in that copy court book marked as exhibits”. His Honour directed the appellant to check the book which he refused to do, and “in those circumstances … the Court was satisfied that the copy of the appeal book marked as exhibits [was] a proper copy of what was originally filed by the [appellant]”.
His Honour then commenced to explore the two arguments made orally by the appellant that strayed beyond his grounds of appeal.
First, the appellant argued “that the Tribunal must have erred in law in its approach to the assessment application because it had, in essence, determined an adjustable taxable income over what the [appellant] said was a period that was not permitted by the Act”. Specifically, the alleged error was the Tribunal referring to the appellant’s “adjusted taxable income being $90,000 from 1 November 2013 to 31 December 2015” (at [9]). At [10] his Honour found that this was not an error by the Tribunal, it being clear that that reference was to “taxable income per annum”.
In relation to this argument, the appellant also mounted a claim that because the period was in excess of 12 months the Tribunal “was required to separately consider each of the type of issues identified in Gyselman [and] Gyselman (1992) FLC 92-279” (at [10]).
At [17] his Honour rejected the argument put by the appellant that “the Tribunal failed to comply with the statutory regime or that this is a case where there was some departure from the substance of the principles identified in Gyselman”. His Honour accepted the submission put by the first respondent that “the approach adopted by the Tribunal was consistent with the decision in [Child Support Registrar & Ahern (2014) FLC 98-063] at [72]”, and there was “no error of law by the Tribunal in its approach to the adjustment as alleged by the [appellant]” (at [18]).
The appellant’s second argument advanced was that the Tribunal “had failed to take into account relevant material” (at [19] – [21]).
In relation to this argument, his Honour found that the proposition was “entirely lacking in substance” (at [20]) and there was “no error of law by the Tribunal in failing to have regard to any relevant material as alleged by the [appellant]” (at [21]).
At [22] his Honour found that none of the appellant’s grounds of appeal which had been identified, “properly formulate any question of law” and went on to record that “[i]t [was] because the Court [was] alive to the fact that the [appellant was] self-represented that the Court has endeavoured to deal with the issues that the [appellant] wished to raise”. The fact that the appellant’s written submissions were “detailed, well-researched and [reflected] a high degree of intelligence” did not mean they “establish[ed] any real question of law that arises for determination on the decision of the Tribunal to enliven this court’s jurisdiction”.
At [23] – [42] his Honour specifically addressed the 11 grounds of appeal agitated by the appellant finding that none of the grounds identified any “arguable question of law”.
With regard to an allegation of gender bias raised by the appellant in his submissions, his Honour at [43] records that there is nothing in the appellant’s grounds of appeal which advances this claim. In any event, at [44] his Honour found that “[t]he [appellant’s] allegations of bias are totally lacking in substance and no arguable question of law in relation to bias arises in the present case”.
Leave to appeal
Leave to appeal is required by s 107A(1) of the Registration and Collection Act, although authority suggests that a “less restrictive approach” than might otherwise apply in respect of leave to appeal against interlocutory decrees is appropriate in child support matters (see, for example, Gilmour and Gilmour (1995) FLC 92-591 at 81,843; Hendy v Deputy Child Support Registrar (2001) 164 FLR 236; and Forbes & Bream [2010] FamCAFC 6 at [39]).
In support of his application for leave to appeal, the appellant asserts:
1.Judge Street failed to ensure the Applicant, as a litigant in person, understand [sic] the procedure of the court and the Applicant’s obligations as a litigant in the presentation of his case to enable him to properly and fairly present his case.
2.Judge Street stated that due to the numerous transfers that this matter had undertaken within the Federal Circuit Court the Appeal Book have not been made available to him prior to hearing the matter.
3.Judge Street stated that he was only in possession of a single cover sheet [sic] relation to this matter and was unable to obtain the material from the court staff.
4.A substantial injustice would occur to the Appellant due to the financial impact of the orders and findings of the SSAT if they remain in place and the Applicant’s financial ability and capacity to meet the orders.
5.There were errors of principle and law made by the Judge which lead [sic] to a substantial injustice to the Applicant.
If leave to appeal is granted, the appellant agitates the following grounds of appeal:
1.Judge Street failed to ensure the Applicant, as a litigant in person, understand [sic] the procedure of the court and the Applicant’s obligations as a litigant in the presentation of his case to enable him to properly and fairly present his case.
2.Judge Street erred in finding that no error of law existed when a Judge Scarlett of the Federal Circuit Court had found the appeal had merit. Judge Street stated that “nothing Judge Scarlett court ruled had any bearing in this court”.
3.Judge Street failed to provide procedural fairness by hearing the matter without the material of the Appeal Book being available to his court.
4.Judge Street showed bias by determining the matter without first reading the reasoning of the SSAT.
5.Judge Street failed to give due consideration to the material of the Appeal Book before ruling on the matter.
6.Judge Street erred in finding that no error of law existed for ground 1 of the appeal.
7.Judge Street erred in finding that no error of law existed for ground 2 of the appeal.
8.Judge Street erred in finding that no error of law existed for ground 3 of the appeal.
9.Judge Street erred in finding that no error of law existed for ground 4 of the appeal.
10.Judge Street erred in finding that no error of law existed for ground 5 of the appeal.
11.Judge Street erred in finding that no error of law existed for ground 6 of the appeal.
12.Judge Street erred in finding that no error of law existed for ground 7 of the appeal.
13.Judge Street erred in finding that no error of law existed for ground 8 of the appeal.
14.Judge Street erred in finding that no error of law existed for ground 9 of the appeal.
15.Judge Street erred in finding that no error of law existed for ground 10 of the appeal.
16.Judge Street erred in finding that no error of law existed for ground 11 of the appeal.
Discussion
The appellant filed a brief outline of submissions on 7 April 2016 in which he indicated that he wished to make oral submissions at the hearing of his appeal given that he has a learning disability and suffers from dyslexia. He also sought to rely on his 43 page written outline of submissions provided to the primary judge for the purposes of the appeal before him. We permitted the appellant to do that, and we also permitted the first respondent to rely on their outline of submissions put before his Honour as well.
In relation to the appellant’s request to provide oral submissions, we permitted that, but not so as he could repeat matters in the written outline of submissions referred to above.
We also note that partway through the appellant’s oral submissions he indicated that he could not “proceed any further”. After a brief adjournment the appellant initially failed to appear, but he subsequently returned to the court. Almost immediately though he left again. At that point we proceeded to hear from counsel for the first respondent, but shortly thereafter the appellant again returned to the court. He indicated that he could not represent himself and he made no further submissions except in relation to the issue of costs.
Addressing seriatim the assertions in support of the application for leave to appeal:
1.This appears to be a claim that the trial judge failed to afford the appellant procedural fairness. However, there is no substance to this claim.
As the first respondent submits, there is no doubt that the trial judge was required “to afford the appellant natural justice”, and what that demands has been the subject of many pronouncements including, importantly, by the High Court of Australia. For example, in Allesch v Maunz (2000) 203 CLR 172, Kirby J said this (at [35]):
It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as “an indispensable requirement of justice”. It is a rule of natural justice or “procedural fairness”. It will usually be imputed into statutes creating courts and adjudicative tribunals. Indeed, it long preceded the common and statue law. Even the Almighty reportedly afforded Adam such an opportunity before his banishment from Eden.
(Footnotes omitted)
Here, we have not been taken to anything in the record which demonstrates that the trial judge failed to comply with this requirement.
It was necessary for the primary judge to keep the appellant on track and assist him in focussing on the issues for determination. At [6] – [8] his Honour made these remarks:
6.At the commencement of the hearing, the Court identified that cross-examination would be limited to half an hour without further leave of the Court and that oral submissions would be limited to half an hour without further leave of the Court. There was no cross-examination requested by either party. The applicant commenced his oral address and engaged in an exercise of asking the Court questions about matters of substantive law, seeking to characterise them as procedural questions to interrogate the Court. The Court declined to be interrogated by the applicant and directed the applicant to get on with his submissions.
7.In the course of the applicant’s endeavour to interrogate the Court, the applicant made a remark that was capable of being treated as a contempt of Court. The applicant was warned not to engage in that conduct again, and to the applicant thereafter refrained from any further step of that kind. In the course of the applicant’s submissions, the applicant descended into a speech about justice that was not responsive to, or in development of, the grounds of his notice of appeal. The Court interrupted the applicant to direct him to focus on putting his submissions either in support of his notice of appeal or in answer to the first respondent’s case.
8.The applicant then commenced focusing upon his grounds of appeal, in the course of which he made a remark defamatory of a third party, and again the Court directed the applicant to refrain from using his opportunity to address the Court to defame other persons and indicated that otherwise his right of oral hearing would be curtailed. Again, the applicant then refrained from any further inappropriate remarks in relation to third parties.
It is also instructive to reproduce a portion of the transcript of the hearing before his Honour to highlight how his Honour dealt with this issue:
HIS HONOUR: Mr Applicant, it’s up to you how you use the time I’ve given you to put submissions in support of your notice of appeal. I have made it very clear that now is your opportunity to develop your argument, if you wish to, in expansion of your outline of submissions. You’ve received submissions from the first respondent. What do you want to say, if anything, either in elaboration of your submissions or in answer to the first respondent’s submissions?
[APPELLANT]: I don’t know, given that I don’t understand the proceedings that are going forward at this point in time, your Honour. Might I ask procedural questions, please.
HIS HONOUR: No.
[APPELLANT]: No. So I’m not afforded the procedural assistance to understand what’s going on in this court at this point in time.
HIS HONOUR: Mr Applicant, you’ve been informed on several occasions now the court does not propose to let you interrogate the court. Your propositions that you have put are not procedural questions; they’re asking for advice. The court doesn’t perform a role of giving advice. You are well-aware that this is a hearing. You’re well-capable of developing, if you wish, any oral submission that you want to advance in support of your notice of appeal. If you don’t wish to do so, that’s fine. If you wish to, you can also respond to the submissions that have been put on by the first respondent. It’s a matter for you. It’s your opportunity to do so now if you wish. Do you want to put any submissions?
[APPELLANT]: Yes. I do.
HIS HONOUR: Put them.
(Transcript 23.12.2015, page 16, lines 13 – 40)
We find that the primary judge afforded the appellant a reasonable opportunity to “properly and fairly present his case”.
2 & 3.It is convenient to address these matters together.
The issue here is the availability of the original court book containing all of the documents that were before the SSAT, and whether his Honour had regard to that material.
His Honour addressed this issue in his reasons for judgment, and they bear repeating:
4.At the commencement of the hearing, the original court book was not amongst the material provided to this Court and may have been in the chambers of another judge of the Court or in the registry or otherwise misplaced. Steps were put in train to seek to identify whether the original court book misplaced exhibit in these proceedings could be obtained, and no such document or no such produced to the Court. The first respondent had a copy of the original court book, which was handed up to the Court. The Court marked that copy of the original court book and the index as separate exhibits. The applicant expressed uncertainty as to what material was contained in that copy court book marked as exhibits.
5.The Court handed down the marked exhibits to the applicant, indicating that the Court understood the material to be a copy of the original court book and directed the applicant to look at the exhibits that had been marked to identify whether or not they were a copy of the applicant’s appeal book. Notwithstanding the direction made by the Court, the applicant declined to look at the material. It was in those circumstances that the Court was satisfied that the copy of the appeal book marked as exhibits is a proper copy of what was originally filed by the applicant.
In the absence of evidence to the contrary it was open to his Honour to proceed on the basis that what the first respondent provided comprised copies of all of the documents that were before the SSAT.
It seems that the basis of the appellant’s concern as to the completeness of the documents handed up was that in the reasons for judgment delivered by the SSAT all of the documents that he provided to the SSAT were not referred to, and he felt it was possible that those documents were not amongst the copy documents provided to his Honour. However, his Honour addressed this at length with the appellant during the course of the hearing by clarifying with him the documents he was referring to, and indicating that they were in fact referred to in the reasons for judgment of the SSAT (transcript 23.12.15, pages 141 to 144).
We are satisfied that the documents that were before the SSAT were before the primary judge, and it has not been established that his Honour failed to have regard to them.
4 & 5.Again, these claims can conveniently be dealt with together. They recite the test set out in the Full Court decision of Rutherford and Rutherford (1991) FLC 92-255 for considering whether leave to appeal should be granted. Pursuant to that test there must be an error of principle demonstrated, but it is unclear whether the requirement of there being a substantial injustice is also necessary, or whether that is an alternative requirement. In any event, the alleged substantial injustice arises because of the financial impact of the orders left in place and the financial ability of the appellant to meet the orders. However, apart from the fact that no detail is provided by the appellant in support of this claim, for a litigant to have difficulty financially meeting an order cannot be sufficient by itself to justify the granting of leave. The orders necessarily have a financial impact.
Thus, turning to whether there is an error of principle demonstrated, again no detail is provided by the appellant, but we can look at the proposed grounds of appeal in the event that leave is granted, to ascertain if relevant error is demonstrated therein.
Grounds 1, 3, and 5 effectively mirror the matters already dealt with above, and thus no error of principle arises there.
In relation to Ground 2, that has no merit either. Any view of an appeal expressed by another judge when addressing an application for security for costs cannot bind the judge who subsequently hears and determines the appeal. His Honour correctly made that point during the hearing (transcript 23.12.15, page 13, line 47 – page 14, line 43).
As to Ground 4, that alleges bias on the part of the primary judge. As submitted by the first respondent, this claim fails for two reasons. First, any allegation of bias must be “distinctly made and clearly proved” (Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J) and here that is not the case. Secondly, given [10] – [44] where his Honour traverses the findings and the reasoning of the SSAT, it is not open to the appellant to allege that his Honour determined the matter “without first reading the reasoning of the SSAT”.
That leaves Grounds 6 – 16, but they comprise bare assertions of error by the primary judge, and are devoid of any detail or substance. Further, it does not assist to have regard to the appellant’s written outline of submissions provided to his Honour. Certainly there the appellant argues that his complaints as to the decision of the SSAT raise questions of law, and can thus be the subject of an appeal to the FCCA, but against that there are the submissions otherwise by the first respondent, and of course his Honour in effect accepted those submissions and found that none of the grounds of appeal identified any arguable question of law. What we have to determine is whether his Honour has erred in those findings, and we are not in a position to do that. What we can say though is that having read the written outlines of submissions placed before his Honour, and his Honour’s reasons for judgment, it is not apparent to us that his Honour has erred in his findings in this regard. The grounds of appeal clearly fail to identify any arguable question of law.
In these circumstances we are not persuaded that there is an error or errors of principle established by the appellant.
In these circumstances the test that has long been applied by this court for the granting of leave to appeal is not satisfied. We note though that recently, different tests have been promoted by this court (see Medlow & Medlow (2016) FLC 93-692 at [57] and [109]) including in particular, “whether, in all the circumstances, the decision below is attended by sufficient doubt to warrant it being reconsidered by the Full Court and whether substantial injustice would result if leave were refused, supposing the decision to be wrong” (emphasis omitted). However, even applying that test here, it is not satisfied either, and thus leave to appeal must be refused. As can be seen though, even if leave to appeal was granted, none of the grounds of appeal have merit, and the appeal would be dismissed.
Costs
At the conclusion of the hearing we received submissions from the parties depending on the result of the application for leave to appeal and the appeal.
In the event that leave to appeal was not granted, the first respondent sought an order for costs. That was opposed by the appellant on the basis of his allegedly poor financial circumstances.
For an order for costs to be made there must be justifying circumstances (s 117(2) of the Act) and here that is satisfied by the appellant being wholly unsuccessful (s 117(2A)(e) of the Act).
However, the appellant submits that because of his limited financial means, the discretion to order costs or not should be exercised in his favour.
The financial circumstances of the appellant are plainly relevant in determining whether an order for costs should be made (s 117(2A)(a) of the Act), but in this case we do not consider that they should outweigh or prevent an order being made where there are circumstances otherwise that justify the making of an order for costs. Apart from the appellant being wholly unsuccessful, we agree with the submission of the first respondent that the application for leave and the appeal were doomed to fail; there was no merit in either the factors relied on to obtain leave, or in the proposed grounds of appeal. Further, it has oft been said by the Full Court that impecuniosity is not a bar to an order for costs being made if an order is otherwise justified (e.g., see D & D (Costs) (No. 2) (2010) FLC 93-435).
Thus, there should be an order for costs as sought by the first respondent.
AINSLIE-WALLACE J
I have read and substantially agree with the reasons for judgment of Strickland and Kent JJ and with the orders proposed to be made in the appeal.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 22 December 2016.
Associate:
Date: 22 December 2016
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