Emmett v McCormack

Case [2015] FCA 826


FEDERAL COURT OF AUSTRALIA

Emmett v McCormack [2015] FCA 826

Citation: Emmett v McCormack [2015] FCA 826
Parties: ANTHONY EMMETT v HON. MICHAEL MCCORMACK IN HIS CAPACITY AS PARLIAMENTARY SECRETARY TO THE MINISTER FOR FINANCE
File number(s): NSD 1250 of 2014
Judge(s): YATES J
Date of judgment: 12 August 2015
Catchwords: ADMINISTRATIVE LAW – application for judicial review of decision to decline to waive child support debt – whether procedural unfairness or legal unreasonableness demonstrated
Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 13
Child Support (Assessment) Act 1989 (Cth) s 34
Child Support (Registration and Collection) Act 1988 (Cth) s 30AA
Child Support (Registration and Collection) (Overseas Maintenance Obligations) Regulations 2000 (Cth) reg 31
Convention on the Recovery Abroad of Maintenance, opened for signature 20 June 1956, 268 UNTS 32 (entered into force 25 May 1957)
Explanatory Memorandum, Families, Community Services and Indigenous Affairs Legislation Amendment (Child Support Reform Consolidation and Other Measures) Bill 2007 (Cth)
Families, Community Services and Indigenous Affairs Legislation Amendment (Child Support Reform Consolidation and Other Measures) Act 2007 (Cth)
Financial Management and Accountability Act 1997 (Cth)
s 34
Judiciary Act 1903 (Cth) s 39B
Maintenance Orders (Reciprocal Enforcement) Act 1972 (UK)
Cases cited: Annetts v McCann (1990) 170 CLR 596
Hot Holdings Pty Limited v Creasy (2002) 210 CLR 438
House v The King (1936) 55 CLR 499
Kioa v West (1985) 159 CLR 550
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24
Minister for Immigration and Border Protection v Singh (2014) 139 ALD 50
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365
O’Sullivan v Repatriation Commission (2003) 128 FCR 590
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2000) 214 CLR 1
SZSSC v Minister for Immigration and Border Protection (2014) 142 ALD 150
Date of hearing: 27 July 2015
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 78
Counsel for the Applicant: Mr LJ Karp
Solicitor for the Applicant: Leon Apostle Solicitors & Barristers
Counsel for the Respondent: Mr S Free
Solicitor for the Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1250 of 2014

BETWEEN:

ANTHONY EMMETT
Applicant

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

JUDGE:

YATES J

DATE OF ORDER:

12 AUGUST 2015

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.Leave be granted to the applicant to file a further amended Originating Application for Judicial Review and a further amended Originating Application for Relief under


Section 39B Judiciary Act 1903 in the form attached to the applicant’s written submissions dated 14 July 2015.

2.Time be extended to enable the applicant to bring his claims for judicial review under the

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AGLC
Emmett v McCormack [2015] FCA 826
Case
[2015] FCA 826
Decision Date

CaseChat Overview and Summary

Emmett v McCormack is an administrative law case concerning a challenge to a decision made by the Family Court of Australia to decline to waive a child support debt. The applicant, Emmett, sought judicial review of the decision made by the respondent, McCormack, under section 34 of the Family Law (Miscellaneous) Act 1995. Emmett argued that the decision was procedurally unfair or legally unreasonable. The case involved complex issues around the administrative conduct of the respondent and the role of Child Support in the matter.

The court was required to determine whether the decision to decline the waiver of the child support debt was procedurally unfair or legally unreasonable. Emmett contended that the decision was flawed due to procedural unfairness, primarily arising from the conduct of Child Support, which he claimed was unfair. The court had to consider whether the decision-maker had complied with the rules of natural justice and whether the decision was legally reasonable in light of the evidence and statutory provisions.

The court found that Emmett had not demonstrated procedural unfairness or legal unreasonableness in the decision-making process. The court accepted that the respondent had considered the applicant’s submissions and complaints regarding the conduct of Child Support. The court concluded that the respondent had properly exercised his discretion under the relevant statutory provisions and that the decision was not legally unreasonable. The court held that the applicant's claims for relief required an extension of time, which was granted, and the application for judicial review was dismissed. The applicant was ordered to pay the respondent's costs.

The court made several orders, including granting leave for the applicant to file further amended applications, extending the time to bring claims for judicial review, dismissing the proceeding, and ordering the applicant to pay the respondent’s costs. These orders reflect the court's findings and the procedural requirements of the case.

Orders

Orders of the court

1. Leave be granted to the applicant to file a further amended Originating Application for Judicial Review and a further amended Originating Application for Relief under

Section 39B Judiciary Act 1903 in the form attached to the applicant’s written submissions dated 14 July 2015.

2. Time be extended to enable the applicant to bring his claims for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth).

3. The proceeding be dismissed.

4. The applicant pay the respondent’s costs, as taxed or agreed.

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

For these reasons, I am not satisfied that the applicant has established this ground of review. CONCLUSION AND DISPOSITION It follows that the application for judicial review should be dismissed. The applicant should pay the respondent’s costs. For completeness, I note that the applicant’s claims for relief under the AD(JR) Act require an extension of time in which to bring them. The respondent did not oppose an extension of time being granted. The applicant also sought leave to file a further amended Originating Application for Judicial Review and a further amended Originating Application for Relief under Section 39B Judiciary Act 1903. Leave was not opposed by the respondent. Orders will be made accordingly.

Ratio Decidendi

Legal Principle Established

In advancing this submission the applicant referred to various statements made in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [72] and [105]. CONSIDERATIONProcedural unfairness The applicant’s case that a breach of the rules of natural justice arises from conduct of Child Support which the applicant says was procedurally unfair (see [29]-[34]), faces an obvious difficulty. The decision under review is the respondent’s decision under s 34(1) of the FMA Act, not Child Support’s conduct, although the latter’s conduct is relevant to the exercise of the respondent’s discretion under s 34(1). The applicant’s contention is tantamount to arguing that, because Child Support’s conduct was “procedurally unfair”, so too must be the respondent’s decision. If that be so, it would mean that the imputed unfairness attending the respondent’s decision could never be remedied by the relief sought by the applicant, and would always attach to the decision. In this connection, it is important to note that, save for one matter to which I will return (see [45]-[57]), the applicant does not contend that the respondent failed to comply with the rules of natural justice when making his decision. As the respondent puts the matter, the applicant was given an opportunity to be heard, and was heard. The applicant accepts that the requirements of procedural fairness in an individual case are to be considered in light of the statutory regime governing the conduct complained of and the exercise of the relevant power: Kioa v West (1985) 159 CLR 550 at 614; Annetts v McCann (1990) 170 CLR 596 at 604; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57. That being so, the focus of this part of the applicant’s case must be the process by which the respondent made his decision, not the antecedent conduct of Child Support which forms the factual background against which the respondent’s decision was made. In any event, as the respondent points out, in making his decision, he appreciated that the applicant was seeking a waiver of the debt on the basis that Child Support had been at fault and was responsible for the applicant’s unawareness, at least until about late March 2008, of his accumulating liability, and his unawareness, until 20 November 2012, of the facility provided by s 30AA of the CS(RC) Act to limit his liability. In that connection, I note findings (ii), (iii), (v), (vi) and (xii) quoted in [25]. In particular, I also note finding (vii) quoted in [25] that the allegations of defective administration made by the applicant had not been denied by the DHS. Further, the respondent had regard to the Ombudsman’s conclusions and recommendations, as signified by findings (vi), (ix) and (xii). I accept, therefore, that the respondent appreciated the elements of the applicant’s complaints of defective administration by Child Support and thus the “procedural unfairness” identified by the applicant in this part of his case.