Emmett v McCormack

Case [2016] FCAFC 65


FEDERAL COURT OF AUSTRALIA

Emmett v McCormack [2016] FCAFC 65

Appeal from: Emmett v McCormack [2015] FCA 826
File number: NSD 1037 of 2015
Judges: BUCHANAN, FLICK AND PERRY JJ
Date of judgment: 10 May 2016
Catchwords:

PRACTICE AND PROCEDURE – amendment of notice of appeal – absence of opposition to grant of leave – residual discretion in Court to refuse leave

ADMINISTRATIVE LAW – lack of procedural fairness by other than decision-maker – error of law – absence of error in reasons for decision

ADMINISTRATIVE LAW – reasons voluntarily provided – request for reasons to be provided pursuant to s 13 – comparison of reasons provided

Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5, 5(1), 5(1)(a), 5(1)(e), 5(2), 5(2)(a), 5(2)(f), 5(2)(g), 13

Child Support (Assessment) Act1989 (Cth)

Child Support (Registration and Collection) Act 1988 (Cth), s 30AA

Financial Management and Accountability Act 1997 (Cth), ss 34, 34(1), 34(1)(a)

Judiciary Act1903 (Cth), s 39B

Cases cited:

Annetts v McCann (1990) 170 CLR 596

Assistant Treasurer and Minister for Competition Policy and Consumer Affairs v Cathay Pacific Airways Ltd [2009] FCAFC 105, (2009) 179 FCR 323

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

Chief Commissioner of Police v McCann [2015] VSCA 362

Coulton v Holcombe (1986) 162 CLR 1

Coutts v Close [2014] FCA 19

East Melbourne Group Inc v Minister for Planning [2008] VSCA 217, (2008) 23 VR 605

Hot Holdings Pty Limited v Creasy [2002] HCA 51, (2002) 210 CLR 438

Mahon v Air New Zealand [1984] AC 808

McGovern v Ku-Ring-Gai Council [2008] NSWCA 209, (2008) 72 NSWLR 504

Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24

Minister for Immigration and Ethnic Affairs v Arslan (1984) 4 FCR 73

Minister for Immigration and Ethnic Affairs v Taveli (1990) 23 FCR 162

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Citizenship v Li [2013] HCA 18, (2013) 249 CLR 332

Nexus Adhesives Pty Ltd v RLA Polymers Pty Ltd [2012] FCAFC 135, (2012) 97 IPR 160

Qu v Minister for Immigration and Multicultural Affairs [2001] FCA 1299

Sezdirmezoglu v Acting Minister for Immigration and Ethnic Affairs (1983) 74 FLR 348

Sobey v Nicol [2007] FCAFC 136, (2007) 245 ALR 389

Date of hearing: 26 February 2016
Date of last submissions: 8 March 2016 (respondent)
14 March 2016 (appellant)
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 96
Counsel for the Appellant: Mr L Karp
Solicitor for the Appellant: Leon Apostle Solicitors & Barristers
Counsel for the Respondent: Mr S Free
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

NSD 1037 of 2015
BETWEEN:

ANTHONY EMMETT

Appellant

AND:

HON. MICHAEL MCCORMACK IN HIS CAPACITY AS PARLIAMENTARY SECRETARY TO THE MINISTER FOR FINANCE

Respondent

JUDGES:

BUCHANAN, FLICK AND PERRY JJ

DATE OF ORDER:

10 MAY 2016

THE…

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AGLC
Emmett v McCormack [2016] FCAFC 65
Case
[2016] FCAFC 65
Decision Date

CaseChat Overview and Summary

Emmett v McCormack is a case where Mr Anthony Emmett, the appellant, challenges the liability to pay a sum of approximately $125,000 to his former wife, Ms Berry. The dispute revolves around the child support obligations that arose after Mr Emmett’s departure from Australia to the United Kingdom in 2000. The case was heard by the court of appeal, which was required to determine whether the appellant's appeal should be dismissed and whether the respondent's costs should be awarded to Ms Berry.

The legal issues before the court included whether the appellant’s appeal should be dismissed on the basis of the absence of procedural fairness and error of law in the primary judge's decision. Additionally, the court had to consider whether there was an improper exercise of power by taking irrelevant considerations into account or by exercising discretionary power without regard to the merits of the case. The court also needed to assess whether the reasons provided by the respondent were satisfactory and whether the appellant had administrative courses still open to him under the Child Support (Assessment) Act.

The court reasoned that despite its misgivings, it saw no alternative but to dismiss the appeal because the issues raised were not part of the appellant’s case, and the respondent had not had an opportunity to address them. The court further found no error demonstrated in the primary judge's conclusions or orders. Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs.

In summary, the court dismissed the appeal and ordered the appellant to pay the respondent's costs, as per the orders entered in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs, as taxed if not agreed.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The thing that has troubled us about the present case lies elsewhere. It concerns the matters referred to in s 5(1)(e) of the AD(JR) Act (set out above), as informed by s 5(2)(a) and/or (f), as follows: 5Applications for review of decisions… (2)The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to: (a)taking an irrelevant consideration into account in the exercise of a power; … (f)an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case; However, we are sitting on appeal, not at first instance. Moreover, the matters which have concerned us do not arise within the boundaries of the present litigation: they do not form part of the appellant’s case and the respondent has had no opportunity to deal with them. There has certainly been no error demonstrated in the conclusions or orders of the primary judge. Despite our misgivings, therefore, we see no alternative to dismissing the appeal. The appellant may have administrative courses which remain open to him under the CDDA Scheme, as the respondent appeared to intend. There is no reason in principle to deny the respondent’s costs. We would therefore dismiss the appeal with costs. The facts giving rise to the present dispute go back some years. In issue is the liability of the Appellant, Mr Anthony Emmett, to pay a sum of about $125,000 to his former wife, Ms Berry. It is unnecessary for present purposes to retrace the facts in any great detail. The facts start with the separation of Mr Emmett from his former wife in July 1997. The couple subsequently divorced. They had two children who both resided with their mother after the separation. Both children are now over 18 years of age. In 1997 Mr Emmett was ordered to pay child support. This he did until he left Australia and went to the United Kingdom in 2000. At the time, his departure from Australia had the consequence that he ceased having to pay child support. Amendments, however, were made to the Child Support (Assessment) Act1989 (Cth) (the “Child Support (Assessment) Act”). Those amendments provided for a parent to make an application for a child support assessment where the other parent was residing in a reciprocating jurisdiction, such as the United Kingdom. The Child Support Division of the Department of Human Services was responsible for the administration of the Child Support (Assessment) Act and the collection of child support liabilities under the Child Support (Registration and Collection) Act1988 (Cth) (the “Child Support (Registration and Collection) Act”). Ms Berry applied for an assessment of child support by a Magistrate in England in September 2000. The amount of that assessment was less than the amount previously payable in Australia under the Child Support (Assessment) Act. But the assessment made by the Magistrate did not extinguish or vary the assessments made pursuant to the Australian Act. A second, similar order was made in March 2008.

Ratio Decidendi

Legal Principle Established

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