Daley v Child Support Registrar

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FEDERAL COURT OF AUSTRALIA

Daley v Child Support Registrar [2020] FCAFC 161

Appeal from: Daley v Child Support Registrar [2019] FCA 1097
File number: NSD 1267 of 2019
Judgment of: FLICK, PERRY AND MARKOVIC JJ
Date of judgment: 25 September 2020
Catchwords: ADMINISTRATIVE LAW – appeal from orders refusing an extension of time within which to bring a review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and refusing relief under s 39B of the Judiciary Act 1903 (Cth) – no error in the primary judge’s exercise of discretion – appeal dismissed
Legislation:

Constitution, ss 51, 75

Judiciary Act 1903 (Cth), s 39B, 78B

Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5

Child Support (Assessment) Act 1989 (Cth)

Child Support Act 1991 (NZ)

Child Support (Registration and Collection) Act 1988 (Cth), ss 72AA, 81, 82, 111C, 124A

Federal Court Rules 2011 (Cth), r 31.02

High Court Rules 1952 (Cth), O 60 r 6

Child Support (Registration and Collection) Overseas-related Maintenance Obligations Regulations 2000 (Cth), regs 3, 5, 11, 12  

Family Law Regulations 1984 (Cth), reg 36
Cases cited:

Child Support Registrar v Higgins [2016] FamCAFC 2

Commonwealth v SCI Operations Pty Ltd (1998) 192 CLR 285

Daley v Child Support Registrar [2020] FCA 862

Davis v Insolvency and Trustee Service Australia [2010] FCAFC 141

Gallo v Dawson (1990) 93 ALR 479

House v The King (1936) 55 CLR 499

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Luton v Lessels (2002) 2010 CLR 333

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82

Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238
Division: General Division
Registry: New South Wales
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 54
Date of hearing: 28 August 2020
Counsel for the Appellant: The Appellant appeared in person
Counsel for the Respondent: Mr C Tran
Solicitor for the Respondent: Mills Oakley Lawyers

ORDERS

NSD 1267 of 2019
BETWEEN:

GLENN ERIC DALEY

Appellant
AND:

CHILD SUPPORT REGISTRAR

Respondent

ORDER MADE BY:

FLICK, PERRY AND MARKOVIC JJ

DATE OF ORDER:

25 SEPTEMBER 2020

THE COURT ORDERS THAT:

1.The appeal be dismissed.

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

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


REASONS FOR JUDGMENT

THE COURT:

  1. This is an appeal brought by Glenn Eric Daley from orders made on 12 July 2019 refusing an extension of time within which to bring a review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and refusing an application for remedies under s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act): see Daley v Child Support Registrar [2019] FCA 1097 (Daley).

    BACKGROUND

  2. Mr Daley had resided in New Zealand for some time but departed prior to 1993.  He has a son, Carl, who was born in New Zealand on 27 February 1988.

  3. By letter dated 4 October 2006 the respondent,…

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Details
Case
[2020] FCAFC 161
Decision Date

CaseChat Overview and Summary

The case of Daley v Child Support Registrar involves Glenn Eric Daley, the appellant, challenging the decision of the Child Support Registrar to accept an application from NZIRCS to register a New Zealand child support liability in his name. The dispute centres on the Registrar's refusal to grant Mr Daley an extension of time to object to this registration, and subsequently, the Registrar's decision was affirmed by the Social Security Appeals Tribunal. The matter was further escalated to the Federal Court, where Mr Daley sought judicial review of the Tribunal's decision. The Federal Court was called upon to determine whether the Registrar's decision to deny the extension of time was lawful and if Mr Daley was entitled to relief under s 39B of the Judiciary Act.

The primary legal issues before the court were whether the Registrar's decision to deny an extension of time was an error and if the Registrar had discretion to grant such an extension. Additionally, the court had to consider whether Mr Daley was entitled to relief under s 39B of the Judiciary Act, which allows for discretionary relief in cases of injustice. The court examined the statutory framework governing child support registration and the procedural requirements for objecting to such decisions, including the timelines and the Registrar's authority to grant extensions.

The court found that the Registrar's decision to deny the extension of time was within the scope of the Registrar's discretion and did not constitute an error. It was held that the Registrar had followed the relevant statutory provisions and acted within the bounds of the legislative scheme. The court also determined that there were no grounds for granting relief under s 39B of the Judiciary Act as the decision to refuse the extension of time was not shown to be unjust. Consequently, the appeal was dismissed.

In conclusion, the Federal Court upheld the Registrar's decision and dismissed Mr Daley's appeal. The court ordered that Mr Daley pay the respondent's costs as agreed or taxed, thereby finalising the matter without awarding the relief sought by Mr Daley.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the 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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

By letter dated 13 October 2009 the Registrar refused Mr Daley’s application for an extension of time (EOT Decision). On 16 October 2009 Mr Daley lodged an application for review of the EOT Decision in the Social Security Appeals Tribunal (Tribunal). On 20 November 2009 the Tribunal affirmed the decision under review. On 14 January 2010 Mr Daley commenced judicial review proceedings in the then Federal Magistrates Court challenging the Tribunal’s decision affirming the EOT Decision. On 27 April 2010, upon a joint application by Mr Daley and the Registrar, that proceeding was dismissed. On 8 March 2019 Mr Daley commenced a proceeding in this Court in which, in effect, he sought judicial review of the Registration Decision. More particularly he sought an extension of time under r 31.02 of the Federal Court Rules 2011 (Cth) to bring a proceeding under the ADJR Act and discretionary relief under s 39B of the Judiciary Act:(1)in an originating application for judicial review filed on 16 May 2019, the following was included under the heading “Details of claim”:The Applicant is aggrieved by the decision of the respondent Child Support Registrar, dated 4 October 2006 to accept the application made by NZIRCS to register a New Zealand child support liability in respect to the applicant Glenn Eric Daley, and the conduct engaged in in making that decision because.1.The making of the Child Support Registrar's decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported; and2. The decision was induced or affected by fraud; and3. The decision was otherwise contrary to law.(2)in an originating application for relief under s 39B of the Judiciary Act also filed on 16 May 2019, the following was included under the heading “Details of claim”:On the grounds stated in the originating application for judicial review (statement of claim), accompanying affidavit and application for an extension time prescribed by the Rules, the applicant applies for the following relief under section 39B of the Judiciary Act 1903.1.A declaration that the registered maintenance liability the subject of this application is one to which the provisions of section 30 of the Child Support (Registration & Collection) Act 1988 not apply.2.Alternatively, or in addition, a declaration that the registered maintenance liability the subject of this application is one to which the provisions of sections 66 and 76 of the Child Support (Registration & Collection) Act 1988 not apply.3.A declaration that the registered maintenance liability the subject of this application is one which should never have existed within the meaning of section 69B(2)(b)(i) of the Child Support (Registration & Collection) Act 1988.4.A declaration that it would be proper for the Registrar to repay the applicant the amounts paid by the applicant to the Registrar in respect to the registered maintenance liability in accordance with section 69B(3) of the Child Support (Registration & Collection) Act 1988.THE LEGISLATIVE SCHEME

Ratio Decidendi

Legal Principle Established

By application made on 2 October 2009 Mr Daley sought to object to the Registration Decision. Objections to a decision of the nature of the Registration Decision had to be made within 28 days after a notice of the decision was served. However, an application could be made to the Registrar for an extension of time if the objection was lodged after the 28 day period had ended: see s 81 and s 82 of the Child Support (Registration and Collection) Act 1988 (Cth) (Registration and Collection Act). By letter dated 13 October 2009 the Registrar refused Mr Daley’s application for an extension of time (EOT Decision). On 16 October 2009 Mr Daley lodged an application for review of the EOT Decision in the Social Security Appeals Tribunal (Tribunal). On 20 November 2009 the Tribunal affirmed the decision under review. On 14 January 2010 Mr Daley commenced judicial review proceedings in the then Federal Magistrates Court challenging the Tribunal’s decision affirming the EOT Decision. On 27 April 2010, upon a joint application by Mr Daley and the Registrar, that proceeding was dismissed. On 8 March 2019 Mr Daley commenced a proceeding in this Court in which, in effect, he sought judicial review of the Registration Decision. More particularly he sought an extension of time under r 31.02 of the Federal Court Rules 2011 (Cth) to bring a proceeding under the ADJR Act and discretionary relief under s 39B of the Judiciary Act:(1)in an originating application for judicial review filed on 16 May 2019, the following was included under the heading “Details of claim”:The Applicant is aggrieved by the decision of the respondent Child Support Registrar, dated 4 October 2006 to accept the application made by NZIRCS to register a New Zealand child support liability in respect to the applicant Glenn Eric Daley, and the conduct engaged in in making that decision because.1.The making of the Child Support Registrar's decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported; and2. The decision was induced or affected by fraud; and3. The decision was otherwise contrary to law.(2)in an originating application for relief under s 39B of the Judiciary Act also filed on 16 May 2019, the following was included under the heading “Details of claim”:On the grounds stated in the originating application for judicial review (statement of claim), accompanying affidavit and application for an extension time prescribed by the Rules, the applicant applies for the following relief under section 39B of the Judiciary Act 1903.1.A declaration that the registered maintenance liability the subject of this application is one to which the provisions of section 30 of the Child Support (Registration & Collection) Act 1988 not apply.2.Alternatively, or in addition, a declaration that the registered maintenance liability the subject of this application is one to which the provisions of sections 66 and 76 of the Child Support (Registration & Collection) Act 1988 not apply.3.A declaration that the registered maintenance liability the subject of this application is one which should never have existed within the meaning of section 69B(2)(b)(i) of the Child Support (Registration & Collection) Act 1988.4.A declaration that it would be proper for the Registrar to repay the applicant the amounts paid by the applicant to the Registrar in respect to the registered maintenance liability in accordance with section 69B(3) of the Child Support (Registration & Collection) Act 1988.THE LEGISLATIVE SCHEME