Commonwealth of Australia v Crothall Hospital Services (Aust) Ltd

[1981] FCA 117

City Mutual Bulldlng, PRINCIPAL REPORTER,

Hobart Place,	AUSTRALIAN CAPITALTERRITORY
CANBERRA CITY, A C.T. 2601
PO Box476

Telephone. (062) 49 7322

CORRECTION TO TRANSCRIPT

In the matter of Lym GRAHAM and COMMISSIONER FOR

SUPERANNUATION, heard in the Federal Court of Australia before Fox ACJ, at Canberra on Tuesday, 23 June 1981,

please substitute pages	63 - 68 for transcrxpt previously
Issued.

Thls transclpt has been re-issued at the request

of the court, to incorporate the Judgment delivered by

the Court.

W. J . MILLS Princlpal Reporter

per:

courts: I do not know of any uthorities In

relation to inferlor courts.

HIS HONOUR: The presumptlon 1s the other way as a rule In

relatlon to courts of summary jurlsdlction. But been carried forward from them. But whether they

there are exceptlons under Lord Jarvis's acts

apply to thls I doubt: I am not sure of it at the

moment but In general there 1s no presumptlon In

favour of the validity of the order: not the

sort of presumptlon you are trying to get to.

we all know that there are arrears and the

greatest distance you can get 1s to say, If you

had asked for a different order you mlght have

got one and it would have been valld and that

mlght then put you In the position of a person to

whom section 119 applles. That is what you are

saylng.

MR PURNELL: Yes, your Honour.

HIS HONOUR: All I can say 1s that at the moment, quite apart

from anythlng else, It 1s hypothetlcal and that you

dld not obtaln such an order and if you obtalned an

order for garnlshment which also acknowledges the

failure to pay that order was made contrary to

sectlon 118 of the Superannuation Act. I do not

know where we get to then. We come back to where

we were I would have thought.

MR PURNELL: Can I put it another way, your Honour. If one

asks the question: can one have Judgment creditor

under the Family Law Act and In submitting, yes,

one puts It thls way: that to be a judgment credltor

one must have available to be able to enforce the

judgment made in one's favour. Now, In relatlon to

a malntenance order the submlssion	1 s that the
regulations - - -

HIS HONOUR: No, that 1s not a sound proposxtlon: it does not

prove what you want to prove. I mean, to say that

an Incident of belng a judgment credltor is such

and such does not show that because you have a

simllar incident you are	a judgment credltor, does
it?

MR PURNELL: No, your Honour, but you have available under

the Family Law Act and the regulatlons enforcement

provlsions, and when one reads those and when one

reads sub-section 5(a) of the Bankruptcy Act, that

1 s of sectlon 58 that I took your Honour to thrs

morning, It 1s our submlssion that one can see that

the beneflclary of a malntenance order can be a

judgment credltor -

HIS HONOUR: Yes.

grasup 23.6.81	63	MR PURNELL
fc5-14 3 jl

r

M R PURNELL: Because, your Honour, it is submltted that

the applicant has a Judgment and that 1s a Judgment

for a sum of money and that sum of money - - -

HIS HONOUR: We do not have a Judgment In any ordinary sense.

One has to construe the whole thlng together. It

may be that you could say he dld have a judgment

for the purposes of some such provlsions but to

assert that he has Judgment 1s really wrong

in the ordinary understandlng of legal language,

is It not?

MR PURNELL: Yes, your Honour, but it IS a judgment sufficient

for the purposes of sectlon 119 because the crlterla

that one has to satasfy under 119 1s that you have

a Judgment, that there is a um of money involved

which is ascertainable, which has not been

satisfled, and that is done by way of statutory

declaratlon; and that flows from the Judgment glven

in favour of the person who is the recipient of

the maintenance order. And those criteria	n thls
lnstance have been satisfied.

HIS HONOUR: You could say If you turned to the words of

the sectlon and talk about somethlng being fully

satisfied - what would you mean? Fully satlsfled

to a point of time?

MR PURNELL: Or fully satisfied to the amount of a lump sum

if It was a lump sum or fully satlsfled as to - - -

HIS HONOUR: If it were a lump sum you would have different

conslderations but it 1s a periodlcal payment whlch is what we are dealing wlth. You have got

to say: well, it has been fully satisfled or It

has not. It was fully satisfied I suppose untll

last Thursday week which was the due day for payment, or somethlng. That is the way it would read, is it not, any statement about It.

M R PURNELL: Yes, your Honour, but the reciplent of the

malntenance order would be in the same situatlon

as the recipient of a judgment concernlng compensation.

That 1s all I have to put, your Honour.

grasup 23.6.81	64
fc5-14 4 ~1

HIS HONOUR: Thls IS an application under the Admlnlstratlve

Decislons (Judlclal Review) Act 1977. The

appllcant relies upon sectlon 5 of that act. There

has been a challenge to the competency of the

appllcatlon flled on behalf of the respondent to competency relles upon three matters, namely

that there was not a declslon, that it was not of

an admmistratlve character, and that it was not

made under an enactment. Counsel for the

Commissioner has told me that he does not rely upon

the jast two of these grounds, so that the objectlon

to competency only goes to the question whether there

was a declsion.

The applicant obtalned a decree nisi for

dlssolution of her marriage on 8 April 1980. On

8 October of that year judge sitting in the Family

Court at Canberra ordered inter alia that her former husband pay malntenance for the support of two

children of the marrlage in the sum of $20 per week

each. It was ordered that the payments were to be

made to the collector of mamtenance at Canberra

for payment out to the applicant wlfe.

The appllcant has deposed that she has not

received malntenance from her former husband. She

asked the collector of malntenance for the

Australian Capltal Territory to take enforcement

action. Thls was apparently not posslble, or at

least if posslble, was not successful. The

collector of malntenance Issued a certiflcate of

arrears dated 12 January 1981 whlch showed that

nothing had been pald by the former husband by

way of maintenance on or before 7 January 1981, and

that on that date an amount of	$520 was due under
the order and was unpaid.

The applicant became aware that her husband was

proposmg to resign from the publlc servlce and

she took action to garnlshee superannuation moneys

falling due to hlm. An order was made by a

magistrate purporting to be pursuant to regulation

134(4)(b) of the regulations under the Family Law

Act 1975. He ordered that the commlssioner for

superannuation pay any moneys held by hlm to whlch

the respondent husband was entitled by way of

penslon, or refunds of payments In relation thereto,

to the collector of malntenance at Canberra.

It is conceded by counsel for the applicant

that there was no Jurlsdlctlon in the maglstrate

to make thls order because under sectlon 118 of

the Superannuatlon Act 1976, a garnlshee order

could not be made agalnst superannuatlon moneys.

grasup 23.6.81	65
fc5-15 1 dm

On 6 January 1981, the applicant made

statutory declaratlon whlch annexed thereto a copy

of the malntenance order to whlch I have referred,

and the certlflcate of arrears and they were s rved

on the commissloner for superannuatlon wlth a view

to the arrears belng recovered pursuant to

sectlon 119 of the Superannuatlon Act. By

letter dated 27 February 1981, the sollcitors for

the appllcant were Informed that earller telephone

communlcation was confirmed and that, and I quote:

The judgment has to be for a sum certaln

in order to satisfy the requirements of

sectlon 119 of the Superannuation Act 1976 and;

the certlflcate of arrears Issued by the

collector of maintenance cannot be

regarded as a court judgment.

The letter In a separate paragraph then went on to say, and I quote:

Therefore the balance of Mr Graham's refund previously withheld wlll be pald to hlm shortly.

The reference to the refund previously wlthheld was to the fact that part of the superannuation moneys to whlch the former husband was entitled had already been paid to him.

The appllcatlon for an order for revlew filed

on behalf of the applicant 1s not dated but the amended

application bears date 6 May of thls year. As I have

earlier Indicated, the grounds relled upon are

some of those set out In sectlon 5. The commlssioner

has argued that there was not in this case any

decision within the meanlng of the deflnitlon

In sectlon 3(1) of the Admlnistratlve Declslons

(Judlclal Renew) Act. In my view, It is reasonably

clear that what the commissloner Intimated in his

letter to which I have referred was that in his

view there was no power to apply sectlon 119 in

the clrcumstances of the case and that he would

therefore take no further action on the request

made to hlm on behalf of the appllcant. He had, in

effect, taken a declsion, as he was entltled to do,

on a threshold matter concerning the appllcatlon

of the section and he had decided that questlon against

the appllcant and lntimated that as a re ult he

would take no further course except to pay the balance

of Mr Graham's money to him. Thls, m my view,

was a declsion wlthm the meanmg of the sub-sectlon

and wlthln the meanlng of the opening words of

sectlon 5 of the act.

It was further urged on behalf of the commissioner

that the applicant had another avenue of redress whlch

grasup 23.6.81	66
fc5-15 2 dm

was provided by the terms of the Superannuatlon Act

and by recourse thereafter, if necessary, to the

Admrnistrative Appeals Trlbunal.

In these clrcumstances, and havlng In mlnd

the terms of sectlon l O ( 2 ) of the act, It was

argued that thls court should decllne Jurisdiction.

I think this is always a matter the court has to

consider or should I say It is frequently a matter

the court wlll have to consider. The m a m conslderatlon,

I lmaglne, is what 1 s best to be done in the

mterests of the partles and in the publlc interest

and with a view to saving cost and time and

reachlng as soon as posslble a finality of decislon.

The jurisdlctlon of thls court, except in

respect of the matter to which I have already

referred was not disputed. What the applicant has

done is sought to have the question of law resolved

by thls court and if resolved in her favour, to

have the commissloner exerclse his dlscretlon

under sectlon 119. If that dxscretlon were

exerclsed unfavourably to her, she could then pursue further remedles under the act or those under the Administratlve Appeals Trlbunal Act to which counsel has referred.

If the matter were not dealt with by thls court

she could seek reconslderatlon by the commlssioner

and then go to the Admlnlstratlve Appeals Trlbunal

and If the questlon of law was stlll decided

adversely to her, she mlght then have to come

back to a full bench of thls court. In the

clrcumstances, It seems plain enough to me that It 1 s In

the best Interests of everyone that this court deal

wlth the question of law. In other words, that

it accepts the Jurlsdiction granted to it. I

therefore proceed to conslder the appllcatlon of

sectlon 5.

The core of the matter relates to the proper

constructlon of sectlon 119 of the Superannuatlon

Act 1976. It 1 s contended by counsel for the

appllcant that the amount of the arrears as at a past

date havmg been determlned and the necessary

statutory declaratlon havlng been furnished to the

commissioner, the terms of sub-sectlon 1 have been

satlsfled. On behalf of the commlssloner, on the

other hand, It 1s contended that there was no

judgment or alternatlvely there was no Judgment for

the payment of a sum of money; that the appllcant

was not put In the posltlon of a Judgment creditor,

nor was the husband or anyone else In the positlon

of a Judgment debtor wlthln the meanlng of the

sub-sectlon. It 1s further urged that the language

of the sub-sectlon, partlcularly when It refers to

a judgment being fully satisfied, 1s lnconslstent wlth

grasup 23.6.81	67
fc5-15 3 dm

any notxon that arrears of maintenance, even

although certlfled by the proper authorlty, can

be dealt wlth under that sectlon. Wlth these

last-mentioned submlsslons I agree. It seems to

me that when one takes the sub-sectlon as whole,

It 1 s referring to a judgment in the more accepted

sense of the word, where there 1 s a decision by way

of judgment that a flxed and ascertalned sum of

money be pald so that there 1 s a judgment credltor

and a judgment debtor and so that one can see

whether or not the Judgment has been fully satlsfled.

An order for malntenance. it has long been acknowledged, 1s In a speclal posltlon. An order for perlodlcal payments, such as the present, creates an obllgation for the payment-of amounts In the future.

The amount involved is lndeflnlte because the

obligation may be varied at any tlme and in any event

wlll termlnate with the death of the person liable

to make the payments. Even if one were therefore to

regard the order as a Judgment - and In my vlew t h x

would be incorrect so far as the use of that term

in section 119 1 s concerned - there would not be a

judgment for any ascertalned or ascertalnable amount

and it would not be possible properly to apply

the terms of the sub-sectlon. It is therefore my

opinion that a case does not arlse for the applicatlon

of sectlon 119 (1). This accords wlth the n e w

taken by the commlssloner.

I thlnk the whole chaln of events has been

a sorry one and the court canqot help but be

sympathetlc wlth a person in the posltion of

Mrs Graham. I do not, however, know all the facts

of that case, and should not go further in expresslng

a view about her posltlon.

For the reasons I have glven, the notice of

obJectlon to competency and the appllcation should

both be dlsmlssed. In the clrcumstances, I thlnk

there should be no order as to costs.	I do not thlnk
any of you can ask for costs.

AT 3.23 PM THE MATTER	WAS ADJOURNED
INDEFINITELY

grasup 23.6.81	68
fc5-15 4 dm