FEKETE & CHILD SUPPORT REGISTRAR
[2016] FamCAFC 145
•11 August 2016
FAMILY COURT OF AUSTRALIA
| FEKETE & CHILD SUPPORT REGISTRAR | [2016] FamCAFC 145 |
| FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – LEAVE TO APPEAL – Where the applicant sought to appeal an order setting aside Notices to Produce – Where leave to appeal is required under s 94AA of the Family Law Act 1975 (Cth) and reg 15A of the Family Law Regulations 1984 (Cth) – Application of the test for leave to appeal in Medlow & Medlow (2016) FLC 93-692 – Leave to appeal refused. |
| Acts Interpretation Act 1901 (Cth) ss 2, 6 Child Support (Assessment) Act 1989 (Cth) |
Family Law Regulations 1984 (Cth) reg 15A
Federal Court Rules 2011 (Cth) r 20.31(1)
Federal Circuit Court Rules 2001 (Cth) rr 6.19, 15A.17
| Adam P Brown Male Fashions Pty Limited v Philip Morris Inc (1981) 148 CLR 170 In re the Will of FB Gilbert (deceased) (1946) 46 SR (NSW) 318 Jess & Jess (2014) FLC 93-620 Luton v Lessels (2002) 210 CLR 333 |
Medlow & Medlow (2016) FLC 93-692
| APPLICANT: | Mr Fekete |
| RESPONDENT: | Child Support Registrar |
| FILE NUMBER: | PAC | 3558 | of | 2015 |
| APPEAL NUMBER: | EA | 59 | of | 2016 |
| DATE DELIVERED: | 11 August 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 13 July 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT ORDER MADE: | 24 March 2016 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Kaplan |
| SOLICITOR FOR THE RESPONDENT: | Australian Government Solicitor |
Orders
The Application for leave to appeal against the orders of Judge Harman made on 24 March 2016 is refused.
The Application in an Appeal filed on 28 June 2016 is dismissed with no order as to costs.
The Respondent is to file in the Eastern Appeals Registry and serve the Applicant with any affidavits relating to and submissions as to costs within 28 days.
The Applicant has a further 28 days on which to file with the Eastern Appeals Registry and serve the Respondent with any affidavits and written submissions to be relied upon.
The matter of costs is fixed for hearing at 10:00 am on Thursday 3 November 2016.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fekete & Child Support Registrar has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISIDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 59 of 2016
File Number: PAC 3558 of 2015
| Mr Fekete |
Applicant
and
| Child Support Registrar |
Respondent
REASONS FOR JUDGMENT
Introduction
The Child Support Registrar (“the Respondent”) has instituted proceedings in the Federal Circuit Court of Australia, seeking to recover unpaid child support and penalties from Mr Fekete (“the Applicant”).
On or about 22 October 2015 and 25 November 2015, the Applicant served Notices to Produce on the Respondent.
On 24 March 2016, on the application of the Respondent, Judge Harman set the two notices aside.
The Applicant seeks to appeal from that decision. As the decision is an interlocutory decision not involving child welfare, leave to appeal is required (s 94AA of the Family Law Act 1975 (Cth), reg 15A of the Family Law Regulations 1984 (Cth)).
The application for leave and the appeal, if leave is granted, are being heard by a single judge pursuant to a direction given under s 107A(2) of the Child Support (Registration and Collection) Act 1988 (Cth).
The notices to produce
The Applicant’s Notice to Produce, dated 22 October 2015, used the Federal Court of Australia’s template and was headed “Notice to produce a document in a pleading or affidavit” pursuant to r 20.31(1) of the Federal Court Rules 2011 (Cth) (“the Federal Court Rules”). The Notice sought “[a] Certified Copy of the Proclamation of the Child Support (Registration and Collection) Act 1988”.
The Respondent did not raise any objections with respect to the form of the Notice. Instead, on 4 November 2015 the Respondent forwarded a letter to the Applicant enclosing a copy of the Commonwealth of Australia Gazette for Thursday 26 May 1988, which advised that the Governor-General had fixed 1 June 1988 as the day in which the Child Support Act 1988 (Cth) was to come into operation.
The accompanying letter advised the Applicant that the Act was originally enacted as the Child Support Act 1988 and became the Child Support (Registration and Collection) Act 1988 as a result of an amendment effected by s 166 of the Child Support (Assessment) Act 1989.
The Applicant was not satisfied by this response and on 25 November 2015 served on the Respondent a further Notice to Produce, again using the heading relevant to r 20.31(1) of the Federal Court Rules. The Notice sought production of the following documents:
1.A Certified Copy of the Proclamation certificate of the Child Support (Registration and Collection) Act 1988 as well as certified copies of all Proclamation certificates for any and all amendments made to the Child Support (Registration and Collection) Act 1988. The Respondent requires the certified copies to be certified by the Secretary of the State of New South Wales and the Secretary of the Commonwealth of Australia and requires those documents to be produced within 28 days from the date of this Notice.
2.A Certified Copy of the Referendum results that granted the Parliament of the Commonwealth of Australia the authority to use the “Great seal of Australia” as opposed to the original seal of the Commonwealth of Australia, as was used on the Commonwealth of Australia Constitution Act 1900 (UK). The Respondent requires the certified copies to be certified by the Secretary of the State of New South Wales and the Secretary of the Commonwealth of Australia and requires those documents to be produced within 28 days from the date of this Notice.
3.A Certified Copy of the Proclamation certificate of the Federal Court Act 1976 as well as certified copies of all Proclamation certificates for any and all amendments made to Federal Court Act 1976. The Respondent requires the certified copies to be certified by the Secretary of the State of New South Wales and the Secretary of the Commonwealth of Australia and requires those documents to be produced within 28 days from the date of this Notice.
On 19 January 2016 the Respondent wrote to the Applicant and advised that the positions of “the Secretary of the State of New South Wales” and “the Secretary of the Office of the Commonwealth”, identified by the Applicant in paragraph 1 of the Notice, do not exist. The letter then referred to r 20.31(1) of the Federal Court Rules and noted that that rule was inapt because none of the documents sought was referred to in any of the Respondent’s pleadings or affidavits and that, in any event, the Federal Court Rules did not apply. Finally, the letter referred to “r 15.17” (this should be r 15A.17) of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”) – which enables a party to a proceeding to require another party to produce a specified document that is in the possession, custody or control of that party – and advised that the documents requested by the Applicant were not in the Respondent’s possession, custody or control. He was invited to withdraw the Notice.
By a letter dated 28 January 2016, the Applicant pressed for the production of the documents. The matter was listed before the primary judge on 24 March 2016 for a directions hearing. On the previous day, 23 March 2016, the Respondent filed its application seeking to set aside the Notices as well as an accompanying affidavit. They were provided to the Applicant on the morning of 24 March 2016.
The primary judge did not give specific reasons for setting aside the Notices but his Honour’s reasons emerge from the transcript of the hearing.
His Honour asked the Applicant, “What are the notices to produce about?” The following exchange occurred:
MR [FEKETE]: The notices to produce were for the applicant to prove the validity of the Child Support Act – a certified copy of the proclamation. She was - - -
HIS HONOUR: Sir, it’s been to the High Court. Been dealt with. You’re not engaging me in that circus. The High Court has already authoritatively ruled on the validity of the Child Support legislation.
MR [FEKETE]: Your Honour, I’ve asked for the proof that that Child Support Act is validated.
HIS HONOUR: Go and get it yourself, sir. The High Court has dealt with it. So I will be striking out the notices to produce. I will be fixing it for hearing. How long does it need?
In pointing out that the High Court has upheld the validity of the Child Support legislation, no doubt his Honour was referring to the Court’s decision in Luton v Lessels (2002) 210 CLR 333.
Some discussion then ensued between the bench and the parties as to the date on which the final matter should be fixed for hearing. The Applicant then said:
MR [FEKETE]: Fine. Why is it that I’m not allowed to have proof of the Act they’re relying on?
HIS HONOUR: Sir, go and get it.
MR [FEKETE]: It’s not up to me to provide that proof. It’s up - - -
HIS HONOUR: Sir - - -
MR [FEKETE]: - - - to them. They’re - - -
HIS HONOUR: - - - yes, it is. You want to put it into issue you produce evidence that contra-agitates against its validity, because I can assure you I’ve read the High Court’s decisions about it, I’ve read the relevant government gazettes. The Act is in force and operation. That issue has already been dealt with by the High Court. You should go and find that case and read it.
MR [FEKETE]: There’s no proclamation certificate to show the validity of it.
HIS HONOUR: Sir, I’m not entertaining the issue any further. It’s dealt with by the High Court.…
Application for leave to appeal
Whilst the discretion provided by s 94AA is entirely unfettered, recent decisions (Jess & Jess (2014) FLC 93-620 and Medlow & Medlow (2016) FLC 93-692) indicate that in the ordinary course the approach for leave to appeal is whether, in all of the circumstances, the primary judge’s decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court and whether substantial injustice would result if leave were refused, supposing the decision to be wrong.
In Adam P Brown Male Fashions Pty Limited v Philip Morris Inc (1981) 148 CLR 170 at 177, Gibbs CJ, Aickin, Wilson and Brennan JJ said:
Nor is there any serious dispute between the parties that appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure….
Their Honours then went on to quote with approval the following passage from Sir Frederick Jordon in In re the Will of FB Gilbert (deceased) (1946) 46 SR (NSW) 318 at 323:
I am of opinion that … there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.
The orders made by the primary judge clearly involved matters of practice and procedure.
The Applicant’s grounds of appeal, the matters relied on by him in support of his application for leave to appeal and his submissions are very difficult to follow. For example, in his Notice of Appeal filed 21 April 2016, the Applicant alleged that the solicitor for the Respondent has attempted to “pervert the judicial power of the Commonwealth” (by filing and serving her affidavit) and that the primary judge “aided and abetted in this crime by striking out my Notice to Produce”.
I draw from the Applicant’s submissions two challenges to the primary judge’s decision. The first is that the Notices to Produce properly sought documents that should have been produced and thus should not have been set aside. The second is that the Applicant was not given sufficient time to respond to the Respondent’s application to strike out his Notices to Produce.
Setting aside the Notices to Produce
Essentially, the Applicant argues that the Notices to Produce were served on the Respondent because the Respondent has an obligation to prove that the Child Support (Registration and Collection) Act 1988 (Cth) is valid and was properly proclaimed. In support of that argument the Applicant relied on ss 2 and 6 of the Acts Interpretation Act 1901 (Cth) which provide:
2 Application of the Act
(1) This Act applies to all Acts (including this Act).
Note: This Act also applies to legislative instruments, notifiable instruments and other instruments: see subsection 13(1) of the Legislation Act 2003 and subsection 46(1) of this Act.
(2)However, the application of this Act or a provision of this Act to an Act or a provision of an Act is subject to a contrary intention.
6 Evidence of date of assent
The date appearing on the copy of an Act printed by the Government Printer, and purporting to be the date on which the Governor-General assented thereto, or made known the Sovereign’s assent, shall be evidence that such date was the date on which the Governor-General so assented or made known the Sovereign’s assent, and shall be judicially noticed.
Section 2 is of no relevance.
Section 6 does not require a person relying on an Act to prove its proclamation. Rather, the court is to take judicial notice that the date appearing on a copy of an Act printed on a Government printer is evidence that the date of assent on that copy is the date that the Governor-General so assented. It therefore does not assist the Applicant.
The Applicant also relied upon s 7 of “the Administrative Law Act 1978” (which appears to be a Victorian Act). That Act has no application to the present case and even if the Act did apply, the section does not bear on the present issue and does not assist.
The well-known proposition that the burden of proof falls on the person asserting the claim does not help the Applicant because that relates to the burden of proving the elements of the offence or the cause of action and not the law itself.
Rule 15A.17 of the FCC Rules provides:
Notice to produce
(1)A party may, by notice in writing, require another party to produce, at the hearing of the proceeding, a specified document that is in the possession, custody or control of that other party.
(2)Unless the Court otherwise orders, the party given notice to produce must produce the document at the hearing.
As the Respondent correctly pointed out, there is no evidence that any of the documents were at any time in the possession, custody or control of the Respondent. The obligation to produce is limited to such documents. There is no evidence that the offices of “Secretary of the State of New South Wales” or the “Secretary of the Commonwealth of Australia” exist or that they have power to certify copies of proclamation certificates.
As far as paragraphs 2 and 3 of the 25 November 2015 Notice to Produce are concerned, there is no suggestion that there was a referendum that granted the Commonwealth of Australia the authority to use the Great Seal of Australia or that the Federal Court Act had any relevance.
The Notice to Produce was entirely misconceived on many bases and was incapable of standing. It follows that the decision of the primary judge is not attended by sufficient doubt to warrant reconsideration. Further, no substantial injustice would result if leave to appeal were not granted because the production of a printed copy of the Act bearing the date of royal assent establishes the fact of the assent.
Procedural fairness
I turn then to the second aspect of the challenge which is that the primary judge denied the Applicant procedural fairness in dealing with the Application of the Respondent on 24 March 2016. The Applicant relies upon r 6.19 of the FCC Rules which provides:
Time for service of applications
Unless the Court orders otherwise, an application and any document filed with it may not be served:
(a)less than 3 days before the day fixed for the hearing of an application in a case; or
(b)less than 7 days before the day fixed for the hearing of any other application.
It is quite clear from the terms of the rule that the court can dispense with the three day requirement. It is not clear, however, whether the primary judge read and considered the affidavit. His Honour certainly noted the Application in a Case but then seemed to turn immediately to the Notices to Produce themselves and based his decision upon them.
The affidavit that accompanied the Respondent’s Application simply annexed correspondence that had passed between the parties. The Respondent’s letter of 19 January 2016 clearly set out the basis on which the Respondent sought to have the Notices set aside.
The Applicant did not make any complaint about not being in a position to deal with the Application until after the primary judge had indicated that the Notices would be set aside. The primary judge then turned to fixing the matter for final hearing. When his Honour asked the Applicant whether he wanted to file any material for that final hearing, the Applicant said:
Well, your Honour, the applicant [the CSR] served me with a document this morning. She doesn’t give me much time. It’s the second time she’s done that to me.
It is therefore not at all clear that the Applicant ever asked for an adjournment of the application or objected to it proceeding on that day.
The Applicant submitted to me that he did not have time to deal with the Application because he needed time to look at the Application and affidavit properly, and that if he had had time to prepare for the hearing of the Application he would have obtained information and prepared reasons. He did not identify what that information or those reasons would have been. Presumably, however, the reasons would have been consistent with the terms of his correspondence and his submissions on the application for leave.
The Applicant was well aware of the nature of the Respondent’s objections from the detailed correspondence that he had received and to which he had responded in considerable detail, setting out the basis on which he sought to maintain compliance with the Notices.
I am not satisfied that the Applicant was not afforded procedural fairness.
In any event, no injustice has resulted from any procedural unfairness – the Notices were incapable of standing.
Conclusion
Accordingly I am not satisfied either that the decision of Judge Harman was attended by sufficient doubt to warrant reconsideration or that substantial injustice would result if leave was not granted. It follows therefore that leave to appeal will be refused.
The Respondent filed an Application in an Appeal on 28 June 2016 seeking to have the appeal summarily dismissed. It was adjourned pending the hearing of the application for leave. It is now otiose and will be dismissed with no order as to costs.
Costs
The Respondent wishes to adduce evidence on the issue of costs. The Applicant wishes to address the court in person on the issue of costs and accordingly directions will be made for that to occur.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 11 August 2016.
Associate:
Date: 11 August 2016
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