Davis v Davis & Anor

[2007] HCATrans 71

[2007] HCATrans 071

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S477 of 2005

B e t w e e n -

PETER LEWIS DAVIS

Applicant

and

CHRISTINA DAVIS

First Respondent

CHILD SUPPORT REGISTRAR (INTERVENER)

Second Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 13 FEBRUARY 2007, AT 9.34 AM

Copyright in the High Court of Australia

MR A.C. SMITH:   May it please the court, I appear for the applicant.  (instructed by Douglas Knaggs)

MR G.T. JOHNSON:   May it please your Honours, I appear for the second respondent who was the intervener in the Full Court below. (instructed by Australian Government Solicitor)

GUMMOW J:   There is a submitting appearance from the first respondent?

MR JOHNSON:   That is my understanding, your Honour.

GUMMOW J:   Yes, Mr Smith.

MR SMITH:   Thank you, your Honour.  Your Honours have all of the material by way of the submissions that have been furnished.  May I amplify that to a particularly narrow point and that is that Luton v Lessels was wrongly decided, the applicant says.  The applicant says that it was wrongly decided because it assumed that there were broad powers of appeal inherent in section 117 departure orders, that the court, in the applicant’s submission, found that there were those broad powers and that is contained in the legislation in a superficially attractive way but when it comes to the actual nature of the review that is open, the narrowness to the extent almost that the Commonwealth’s will, as far as its imposition of the formula is concerned, almost in every case prevails.  Hence, it is my submission that that leads to a conclusion that the decision should be reviewed.

GUMMOW J:   Where is this indicated in your written outline?

MR SMITH:   Your Honour, there is a number of various paragraphs that address the issue of Luton being wrongly decided.

GUMMOW J:   No, on this particular ground, you say a misunderstanding of the so‑called appellate structure.

MR SMITH:   Your Honour, a combination of all of the grounds that are raised in the outline – you are talking about the application itself, are you, your Honour?

GUMMOW J:   No, your written submissions.

MR SMITH:   Yes.  They are not my submissions, your Honour, but ‑ ‑ ‑

GUMMOW J:   I beg your pardon?

MR SMITH:   They are not my submissions.

GUMMOW J:   I realise that.

MR SMITH:   Yes.

GUMMOW J:   Your side’s submissions.

MR SMITH:   Yes.

GUMMOW J:   Now, where is it?

MR SMITH:   Your Honour, if I can take you to those submissions.  They are – I think, in a sense, your Honour, I am trying to distil out of the submissions a submission that that is the case.

GUMMOW J:   I see.  Yes.

MR SMITH:   Your Honour, in order to develop that submission, it is necessary for me to take your Honours to Luton itself and that appears, obviously, in the authorities book at page 2 and onward.

GUMMOW J:   It is 210 CLR 333.

MR SMITH:   That is so, your Honour, yes.  I refer your Honours to a number of paragraphs in the various judgments.  First of all, the Chief Justice at paragraph 24, with whom Justice McHugh agreed, made the statement in the last sentence having referred to the provisions from section 115:

In both cases, the court exercises original jurisdiction, and the court has broad powers to override decisions of the Registrar.

In Justices Hayne and Gaudron’s joint judgment starting at paragraph 45 their Honours there refer to the opportunity of:

A person aggrieved . . . appeal to a court having jurisdiction under that Act.

At paragraph 46 it continues in that vein in relation to appeal under section 116.  In paragraphs 74 and 76 in similar vein dealing with the jurisdiction of the court and the appeal processes.  Justice Kirby, beginning at paragraph 137 ‑ ‑ ‑

GUMMOW J:   Do you disagree with paragraph 74?

MR SMITH:   Your Honour, I do not disagree with it but the ‑ ‑ ‑

GUMMOW J:   What is the constitutional point you seek to get out of this?

MR SMITH:   The constitutional point, your Honour, is that the reality of this legislation is that in reality, in practice, the Registrar is exercising judicial power in reality because the ambit of the appeal is so limited as to not really be an appeal at all.  That appears, if I can develop the submission, a little bit further as I go, your Honour, paragraphs 127 and 128 of Justice Kirby’s judgment again deals with these avenues of appeal, 129, 130, 131.  His Honour again is referring to the jurisdiction that is afforded to the Court to review decisions of a registrar on appeal or review.

GUMMOW J:   It is not an appeal.  Can we be clear about that.

MR SMITH:   Yes, your Honour.

GUMMOW J:   It is called an appeal.

MR SMITH:   It is called an “appeal”, effectively a review.

GUMMOW J:   No, a proceeding in the original jurisdiction.

MR SMITH:   Yes, that is so, your Honour.  I am sorry, that is correct.  Interestingly, in 131 his Honour refers – and it is the only reference, to my understanding, in the whole of the judgment to any decision of the Family Court.  His Honour refers to the matter of Perryman at footnote (183) to 131 where his Honour says:

In practice, the court hearing such an application engages in a rehearing of the question as to whether the provisions relating to the administrative assessment should be departed from.

I will return to that point in a moment, your Honours, but that is, as far as I can ascertain, the only reference to the discretion that is exercised by reference to a court dealing with those matters such as the Family Court and now, of course, the Federal Magistrates Court and other courts of an inferior nature, if I can put it that way.

I then turn to Justice Callinan’s judgment and in particular, beginning at paragraph 154, his Honour too discusses the avenues that are open or purportedly open for appeal.  That continues into 155, 157, 160 and 161.  At paragraph 188 his Honour speaks about:

the availability and nature of a review by a court are relevant considerations.

With respect, the applicant strongly agrees with that point, his Honour citing there the decision of Harris (1991) 172 CLR 84 and of course the decision in Brandy (1995) 183 CLR 245. At 189 his Honour then goes on:

to state a test by reference to several questions, not all of which will be of equal importance in every case.

One of the questions that he poses, your Honour, is:  what is the nature of the appeal?  This is important, the applicant says, because, as I will demonstrate later, his Honour does not, with respect, answer his own question.  At 194 his Honour goes on to say:

The relevant decisions are appealable and effectively by way of a hearing de novo, even though the Acts refer to a review.

At 201, finally, his Honour then focuses on:

Three matters taken together are . . . especially important and ultimately decisive here.  The first is the availability of resort to a court of competent jurisdiction –

In my submission, having regard to those observations and ‑ ‑ ‑

GUMMOW J:   That is one Judge.

MR SMITH:   That is so, your Honour, but I hope to persuade your Honours that all of the Judges effectively reach a similar conclusion because of the focus that is made on the appellate jurisdiction, if I can call it that.  As I said before, with respect to Justice Callinan, he did not answer his own question ‑ ‑ ‑

HEYDON J:   I would challenge that.  What about paragraph 194? Is that not an answer to questions fifthly and sixthly?

MR SMITH:   I am sorry, your Honour, I just could not hear you.

HEYDON J:   Paragraphs fifthly and sixthly pose two questions.  He answers them - now, I grant you he does no more than answer them - by saying “hearing de novo” and they are appealable.

MR SMITH:   Yes, but, your Honour, it must go beyond that, in my submission.  One has to look at what in practice happens.

GUMMOW J:   No, one does not, I am afraid.  It is a question of what the law requires.  If the practice does not conform to the law, people have got their remedy.  You cannot test constitutional validity by that because the practice could change from day to day.

MR SMITH:   No, I accept that, your Honours, but one still must not just look at the superficially attractive nature of an appellate jurisdiction, if I can call it that here, but see in actual fact whether it is a real jurisdiction because, in other words ‑ ‑ ‑

GUMMOW J:   What is your submission about the so-called appeal?  I do not understand it really.

HEYDON J:   Is your submission this, that the words “special circumstances” that are repeated several times in subsections (1) and (2) mean that it is almost impossible successfully to make an application?

MR SMITH:   That is, your Honour.

HEYDON J:   Do the words “the special circumstances of the case” amount to anything more than a direction to look at the particular facts?

MR SMITH:   Your Honour, that might be right but in practice it means, I think, what the Full Court in Gyselman has said.  In essence the guidance comes from that decision because that decision – it is in the authorities book, and I will take your Honours to it, in particular the passage I was going to cite, Gyselman (1992) FLC 92-279 and in the book it really starts at 166, 167. It is there, your Honours, if I can take you to paragraph 39, their Honours in the Full Court there say that the section:

sets out the grounds for departure from administrative assessment.  Each of those grounds is prefaced by the words –

that your Honour mentioned:

Whilst it is not possible to define with precision the meaning of that term, as a generality it is intended to emphasize that the facts of the case must establish something which is special or out of the ordinary.

And these are the important words:

That is, the intention of the Legislature is that the Court will not interfere with the administrative formula result in the ordinary run of cases.

The Chief Justice, I think, was giving the judgment in that case and went on to refer to Savery’s Case in that same paragraph to say where Justice Kay observed that:

“special circumstances” were “facts peculiar to the particular case which set it apart from other cases”.  The approach to the interpretation and application of the particular grounds in s 117(2) must be guided by that qualification.

GUMMOW J:   We have to get down to basics, I am afraid, Mr Smith.  What is your constitutional point about this necessity for an “appeal”?  Before you answer that, look at Justice Kirby’s reasons in Luton v Lessels at paragraph 129 on page 375 of 210 CLR, the second sentence. It is the “Lack of self‑enforcement” that is critical:

is interposed an “independent exercise of judicial power”-

before there can be recovery.

MR SMITH:   Yes, your Honours, but one, in my submission, needs to go beyond that here.

GUMMOW J:   Why?

MR SMITH:   Because the Court placed so much emphasis ‑ ‑ ‑

GUMMOW J:   Are you saying that before the Parliament can correct this sort of structure it must in addition to the Commonwealth officers being subject to review under section 75(v) for jurisdictional error, there must be some appellate structure under section 76(ii) of the Constitution in the original jurisdiction somehow?

MR SMITH:   May I answer it by rhetorically putting it this way, that if there was not that avenue available in sections 116 and 117, it is my submission that it is doubtful that this Court would have upheld the constitutionality of the particular provisions.

GUMMOW J:   That is why I invite you to Justice Kirby’s paragraph 129, which is reflected in the other judgments, and which is pretty basic law in this area.

MR SMITH:   Your Honour, my submission is that Justice Callinan’s view is also one that cannot be ignored because it refers to Brandy and his Honour takes the observations from Brandy and distils those insofar as his view of the constitutionality of the provision is concerned.  Your Honours, Gyselman, as I have said, has been referred to in a more recent case of W.

GUMMOW J:   What is the significance of all these family law cases?

MR SMITH:   The significance is that the way the legislation works, the way it ‑ ‑ ‑

GUMMOW J:   You are going to say “in practice”, are you not?

MR SMITH:   I will not say “in practice” your Honour.  The way the legislation works, as opposed to how it appears to work or how it should work, is what applicants are seeking to have the Court look at here, your Honour, because if effectively a person is told you have access to the law, but as my old law lecturer used to say, just like you have had access to the writs, the fact of the matter is you do not have a right to do very much at all if your right is so circumscribed by special circumstances and all of these other grounds dressed up to look like you have a right, that the applicant in that case cannot really go anywhere and therefore you get back to what the Registrar has done.  The Registrar has set the formula.  The Registrar has applied the legislation and that really is the end of it in the ordinary or most run of cases. 

Your Honour, the observation – I just mentioned that matter of W v Child Support Registrar also at paragraph 80 at 129 of the appeal book where to similar effect - this is referred to by my learned friend as well in his outline – the Full Court again says ‑ ‑ ‑

GUMMOW J:   If you are right about all of this, the remedy is not to agitate Luton v Lessels, the remedy is an appropriate case for some litigant to seek to agitate the correct construction of the phrase “special circumstances” in 117(1)(a).  That is not a constitutional case.

MR SMITH:   No, that is not, your Honour, and that is perhaps another argument but my submissions are still, though, that the court misconceived ‑ ‑ ‑

GUMMOW J:   And first to invite the Full Court, I suppose, to reconsider some of its decisions on the point as to what is not special.

MR SMITH:   That may well be so except that, as appears from that paragraph I cited, the Full Court seems to think that Luton v Lessels would not assist the agitation even of that point.

GUMMOW J:   It is not a question of Luton v Lessels, it is a question of what the phrase “special circumstances of the case” means.

MR SMITH:   Yes, certainly, your Honour.  In summary, your Honours, my submission is that the Court has not considered what sections 117 and 116 actually achieve in its outcome.  It limits to such an extent the ambit for appeal or review that it effectively takes away the very point that the Court felt, in my submission, overall was so significant, notwithstanding the observations that your Honour referred me to in 129.  Those are my submissions, your Honour.

GUMMOW J:   Thank you, Mr Smith.  Yes, Mr Johnston.

MR JOHNSON:   Your Honours, my friend invites the Court to grant special leave upon the basis that Luton v Lessels was wrongly decided and he puts that the High Court in Luton v Lessels did not appreciate what he describes as the limited right of review or appeal under section 117, in particular, that the Court did not appreciate the limitation, whatever it might be, imposed by the words “special circumstances”.

The first point to be made in answer to that is that there are some clear indications in the High Court judgments that the Court was aware of section 107.  If I could just take your Honours quickly to those.  Firstly, in the judgment of the Chief Justice at paragraph 20 your Honours will see there in the fifth line down a reference to the grounds of “special circumstances” in relation to a Part 6A application.  That is to the Registrar.   About four lines beneath that there is an express reference to section 117.  Also in paragraph 24 the Chief Justice gives as one of his reasons for finding that the Act does not bestow or purport to bestow judicial power on the Commonwealth that:

neither an assessment nor a departure determination is conclusive.

If your Honours read through the balance of that paragraph, your Honours will see about three lines form the bottom there is reference to the right to apply to a court and his Honour notes sections 115 through to 118.

Then in the joint judgment of Justices Gaudron and Hayne in paragraph 71 at the top of page 359, your Honours will notice that they refer to section 117(2).  Also, in paragraph 74 towards the end, in fact in the top line on page 360, there is another bracketed reference to section 117.

GUMMOW J:   And I think paragraph 76 where their Honours sum it all up.

MR JOHNSON:   Yes.

GUMMOW J:  

Secondly, the Registrar’s assessment, whether as an administrative assessment or as a departure determination, is not final.  It is open to the processes of objection and then “appeal” to a court.

MR JOHNSON:   That is so.  Indeed, all of the Judges say something about the breadth of the right of appeal and in that respect all of the references that I give in paragraph 1(b) on page 75 of the application book are pertinent.  At paragraph 127 of Luton v Lessels Justice Kirby makes some reference to provision for an appeal under the heading “Lack of conclusiveness”. I do not think that his Honour expressly refers to section 117. And Justice Callinan refers, as Justice Heydon has noted, at 194:

The relevant decisions are appealable and effectively by way of a hearing de novo –

At paragraph 201 on page 389 he says about three lines down:

Three matters taken together are, in my opinion however, especially important and ultimately decisive here.  The first is the availability of resort to a court of competent jurisdiction to challenge the relevant decisions of the Registrar.  That the challenge is by way of appeal, and an appeal allowing a hearing de novo, and not simply by way of review under, for example, the Administrative Decisions (Judicial Review) Act 1977 (Cth) is very relevant.

So his Honour is pointing to the fact that it is in effect a merits review. 

GUMMOW J:   Justice McHugh agreed with the Chief Justice.

MR JOHNSON:   The Chief Justice, that is right, particularly because of the express mention of section 117 by the Chief Justice, with whom Justice McHugh agreed, and the express mention of section 117 in the joint judgment.  It is highly unlikely that the High Court in Luton v Lessels did not appreciate that “special circumstances” requirement. 

Further in that respect, your Honours, I have noted in the supplementary submission that I provided to the Court two other decisions which might be helpful in relation to this point.  One is simply the refusal of special leave in Whittaker’s Case.  I do not wish to make too much of this, your Honours, but the transcript of the special leave application in Whittaker is in the list of authorities.  Your Honours should have a booklet which on the front has an index, “LIST OF AUTHORITIES OF THE CHILD SUPPORT REGISTRAR”, and the very last item in that which commences at page 194 is a transcript of the special leave application in Whittaker which ended with special leave being denied in that case at page 206, the last page of the book.  About four‑tenths of the way down Justice Kirby said:

We see no prospects that this Court would wish to reconsider or modify or re‑express its finding there that the child support legislation is constitutionally valid.  Nor are we convinced that any changes in the legislation, referred to by the applicant in Court today, affect the application of the Luton principle -

Now, one of the things that was agitated before the High Court in that case, or one of the things that was mentioned was, indeed, section 117.  Now, if your Honours go back to page 199 of the book, your Honours will see in the whole top half of that page there is reference to section 117(2) and about half way down the page it is said that the problem is that the first two of them have very specific circumstances.  I will not read all of what is there, but plainly from that Justice Kirby was being addressed upon what my friend would succinctly describe as the nature of the review under section 117.  That did not lead his Honour to think that Luton v Lessels should be looked at again. 

Also, your Honours, again it is the only decision of the Family Court, but in that same booklet, your Honours, if your Honours go back to page 172, that is the start of a decision of the Full Court of the Family Court in W v Child Support Registrar, and one of the arguments run in that case was that because of the nature of the review under section 117 and the need to show the existence of special circumstances, that Luton could be distinguished or ought not be followed. The Full Family Court dealt with that at pages 185 to 186 of the book in the paragraphs numbered 51 through to 57 saying, in effect, by reference to some of the same paragraphs that I have already taken your Honours to, that the High Court must have been aware of that.

Finally, your Honours, but perhaps most importantly, and it takes up really upon something that your Honour Justice Gummow said to my friend towards the end of his submissions, but the availability of that right of review was but one of multiple factors which led to the conclusion in Luton v Lessels that the Act did not purport to confer judicial power upon the Registrar.  For the sake of brevity, if I could just ask your Honours to go to page 75 of the application book which is a paragraph of my submissions, I have set out there in paragraph 15 the particular considerations which drove the High Court’s determination in that case.  The right of review under section 117 is nothing more than an integer in what is there described as factor (b).

There are still the general findings by the Court that the decision is of an administrative kind and the important findings that it does not involve the determination of any pre‑existing rights or obligations; rather, it creates new rights or operates upon a stratum of fact to create new rights, and also what they say about that lack of direct enforceability.  If your Honours please, those are the second respondent’s submissions.

GUMMOW J:   Thank you, Mr Johnson.  Yes, Mr Smith.

MR SMITH:   Yes, your Honours, the only matter is that my friend made the point that it was one of the factors, but the submission of the applicant is that it is the key factor that runs through all of the judgments, in my submission, the broad power that his Honour the Chief Justice referred to of appeal which - our submission is that it is not a broad power.  Those are my submissions.

GUMMOW J:   We will take a short adjournment.

AT 10.08 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.14 AM:

GUMMOW J:   There is no substance in the primary proposition put by the appellant that when deciding Luton v Lessels (2002) 210 CLR 333 this Court overlooked the presence of section 117 in the legislation under challenge - see in particular in the report paragraphs 20, 24, 71, 74, 76, 79, 161 and 194. There are no prospects of a grant of leave to reopen Luton v Lessels and the application for special leave is refused. 

Do you seek costs, Mr Johnson?

MR JOHNSON:   Yes, your Honour.

GUMMOW J:   Refused with costs.  In that regard provisions respecting costs in the Family Law Act are not restrictive of the position of this Court - see De L v Director-General, New South Wales Department of Community Services [No 2] (1997) 190 CLR 207 at 222 to 223.

MR JOHNSON:   Is it necessary for your Honours to certify for counsel?

GUMMOW J:   No, not any more.  We have changed the rules.  We will now adjourn.

AT 10.15 AM THE MATTER WAS CONCLUDED