Faber v Child Support Registrar

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FEDERAL CIRCUIT COURT OF AUSTRALIA

FABER v CHILD SUPPORT REGISTRAR & ANOR [2018] FCCA 2301

Catchwords:
CHILD SUPPORT – Appeal against Administrative Appeals Tribunal decision on application for a departure from administrative assessment of child support payments – subpoena issued to produce document – application to set aside subpoena – principles in relation to setting aside a subpoena.

PRACTICE AND PROCEDURE – Application to set aside subpoena – principles in relation to setting aside subpoena – whether subpoena issued for an improper purpose or an illegitimate forensic purpose – whether the subpoenaed document relevant to the issues to be determined – whether subpoena an abuse of process – whether subpoena oppressive or vexatious – consideration of effect of prior refusal to release subpoenaed document pursuant to a freedom of information request.

Legislation:

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), s.11
Administrative Appeals Tribunal Act 1975 (Cth), ss.2A, 37, 40, 44, 44AAA, 46

Child Support (Assessment) Act 1989 (Cth), Pt.5 Div.7, ss.4, 25, 98C, 117
Child Support (Registration & Collection) Act 1988 (Cth), Pt.VIIA, s.110X

Federal Circuit Court Rules 2001 (Cth), rr.15A.02, 15A.09, 15A.14

Freedom of Information Act 1982(Cth), ss.37, 47E

Cases cited:

Air Pacific Ltd v Transport Workers Union of Australia (1993) 40 FCR 1; (1993) 46 IR 1; [1993] ATPR 41-217

Ali Tastan (1994) 75 A Crim R 498
ARG15 & Ors v Minister for Immigration & Border Protection & Anor [2016] FCAFC 174; (2016) 250 FCR 109; (2016) 154 ALD 221
Australian Gas Light Company v Australian Competition & Consumer Commission [2003] FCA 1101; [2003] ATPR 41-956

Child Support Registrar & Crabbe & Anor [2014] FamCAFC 10; (2014) 283 FLR 165; (2014) 51 Fam LR 1
Commissioner for Railways v Small (1938) 38 SR (NSW) 564
Commonwealth v Albany Port Authority [2006] WASCA 185
Cosco Holdings Pty Ltd v Commissioner for Taxation & Anor (1997) 37 ATR 432
Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409; (1979) 24 ALR 577; (1979) 2 ALD 60

Eaton v Sell Lease Property Pty Ltd & Ors [2016] FCCA 538

Federal Commissioner of Taxation v Trail Bros Steel & Plastics Pty Ltd [2010] FCAFC 94; (2010) 186 FCR 410; (2010) 79 ATR 780; (2010) 272 ALR 40
Frugtniet v Tax Practitioners Board [2015] FCA 1066; (2015) 67 AAR 336
Haritos v Commission of Taxation [2015] FCAFC 92

Mandic v Phillis [2005] FCA 1279; (2005) 225 ALR 760

Martinez v Minister for Immigration & Citizenship & Anor [2009] FCA 528; (2009) 177 FCR 337; (2009) 256 ALR 32
Mentink v Secretary, Department of Social Services [2015] FCA 473; (2015) 66 AAR 205

Minister for Aboriginal Affair & Anor v Peko-Wallsend Limited & Ors (1986) 162 CLR 24; (1986) 60 ALJR 560; (1986) 66 ALR 299
Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640

Minister for Immigration & Citizenship v SZMDS…

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Details
Case
[2018] FCCA 2301
Decision Date

CaseChat Overview and Summary

In *Faber v Child Support Registrar*, the applicant, Faber, sought to appeal an Administrative Appeals Tribunal decision concerning an application for a departure from an administrative assessment of child support payments. Faber had issued a subpoena to the Child Support Registrar for a specific document, and the Registrar applied to set aside that subpoena. The matter came before Judge Antoni Lucev in the Federal Circuit Court of Australia.

The primary legal issues before the court were whether the subpoena had been issued for an improper or illegitimate forensic purpose, whether the subpoenaed document was relevant to the issues to be determined, and whether the subpoena constituted an abuse of process, was oppressive, or vexatious. The court also considered the effect of a prior refusal to release the document under a freedom of information request.

Judge Lucev reasoned that a subpoena should not be used as a "fishing expedition" to discover if a case exists. The court applied the principles that a subpoena will be set aside if it is sought for an improper purpose, is irrelevant, or is an abuse of process. In this instance, the court found that the subpoenaed document, titled "Calculating financial capacity for business owners," was not relevant to the specific issues before the court in the context of the appeal. The court determined that the applicant had not demonstrated a sufficient forensic purpose for requiring the document, particularly in light of the information already available and the nature of the appeal.

Consequently, the court ordered that the subpoena issued on 20 December 2017 for Document 277-040600 be set aside. The court also made directions regarding the filing and service of submissions concerning any award of costs.

Orders

Orders of the court

1.

The Subpoena issued on 20 December 2017 for Document 277-040600 “Calculating financial capacity for business owners” be set aside.

2.

Any party:

(a) seeking an award of costs must file and serve a written outline of submissions (of no more than five pages), supported, if necessary, by affidavit, by 27 August 2018; and

(b) any party opposing an order for costs sought in accordance with sub-paragraph (a) of this order must file and serve a written outline of submissions (of no more than five pages) in response, supported, if necessary, by affidavit by 3 September 2018,

with the Court to determine the issue of costs on the papers filed by the parties.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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