Flanagan, Ex Parte - Re Williamson & Anor S100/2000

[2000] HCATrans 602

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S40 of 2000

B e t w e e n -

JOHN EDWARD FLANAGAN

Applicant

and

NARELLE IRENE HANDCOCK

First Respondent

DEPUTY CHILD SUPPORT REGISTRAR

Second Respondent

Application for special leave to
appeal

Office of the Registry  
  Sydney  No S100 of 2000

In the matter of -

An application for Writs of Certiorari and Mandamus and against KEITH WILLIAMSON in his capacity as a Review Officer for the Child Support Review Office (also known as the Change of Assessment Team of the Child Support Agency)

First Respondent

CATHY ARGALL in her capacity as the Deputy Child Support Registrar of the Child Support Agency

Ex parte –

JOHN EDWARD FLANAGAN

Prosecutor/Applicant

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 OCTOBER 2000, AT 12.13 PM

Copyright in the High Court of Australia

MR J.E. FLANAGAN appeared in person.

MRS N.I. HANDCOCK appeared in person.

MR A. ROBERTSON, SC:  Appeared with MR S.B. LLOYD.  (instructed by the Australian Government Solicitor)

McHUGH J:   You are Mr Flanagan, are you?

MR FLANAGAN:   That is correct, your Honour.

McHUGH J:   I have called matter S40 of 2000.  As you appreciate, Mr Flanagan, each side has 20 minutes in support of the application and argument against the application and there is a right of reply of a few minutes for an applicant.  We will commence with No S40 of 2000 and I think when you finish your submissions on that, you should also deal with the application for prerogative relief.

MR FLANAGAN: Yes, your Honour. I apply for special leave to appeal from the judgment of their Honours Baker, Finn and Chisholm in the Full Court of the Family Court, given on 11 June 1998. There are two fundamental issues to this case. The first issue is whether the Family Court has jurisdiction under section 110 of the Child Support (Assessment) Act to hear and determine complaints of denial of natural justice regarding the review process.  The review process is held before the Child Support Review Office.  The second fundamental issue is whether the Family Court of Australia has an implied power to review the decisions of the Child Support Review Office with respect to complaints regarding denial of natural justice, and I refer to Taylor v Taylor (1979)  ‑ ‑ ‑

McHUGH J:   Now, before you deal with those, there are two matters that you should deal with.  First of all, this special leave application was not filed until 30 March 2000, over 20 months after the judgment and over three years since the assessment under the Child Support (Assessment) Act was made. You will have to persuade us why you should be granted special leave to appeal in those circumstances, particularly having regard to the fact that the assessment, which was the basis of the section 110 application, is now spent, has been superseded by other assessments.

MR FLANAGAN: Yes, your Honour. I appealed under section 110. It went before a judicial registrar, a judge and the Full Court. I received the decision of the Full Court. I then applied under section 117 of the same Act against that same assessment, and that assessment has been continually appealed since it has been first issued, up until the present time.

McHUGH J:   Yes, I know, but you did not seek relief here and you did not seek relief in this Court for over 20 months after the judgment of the Full Court.  In your written submissions, you rely on decisions in the Administrative Appeals Tribunal, but those decisions provide no guidance at all as to how this Court discharges its functions in extending time in special leave applications.  When a party has a judgment in an intermediate Court of Appeal or a Full Court, that party has a vested right to have the benefit of that judgment and an extension of time will only be granted when the interests of justice definitely require it.  To seek special leave 20 months after the judgment really provides no ground at all and particularly when the order is no longer of any utility.  It has been superseded by other orders.

MR FLANAGAN:   Yes, but the administrative assessment issued under Part 5 is the original assessment.  Under Part 6A is the assessment that was before the Child Support Review Office and the assessment under Part 7 was made by the Family Court of Australia, but they are basically the same administrative assessment.

McHUGH J:   No, they are not.  You brought a departure application.  But, anyway, I have identified what the two points are.  The first thing is you have to get over the fact that it is three years since the assessment was made and it is over 20 months since the Full Court gave its judgment.

MR FLANAGAN:   Yes, well, I can only rely on the submissions that I have already made, your Honour.

McHUGH J:   Right.  Well, do you want to put anything further?

MR FLANAGAN:   No, your Honour.

McHUGH J:   Thank you.  Now, you also seek certiorari and mandamus by way of prerogative relief.  Again, it seems to me, Mr Flanagan, that the problem that you have is that, first of all, certiorari is not a constitutional writ.  According to the jurisprudence of this Court, it can only be granted as ancillary to, or in aid of, one of the other constitutional writs.  Now, you rely on mandamus in this particular case.  But mandamus is a discretionary remedy and, ordinarily, will not be granted when there are other avenues of relief, and there were other avenues of relief open to you, including the section 117 application and, again, there is this enormous delay.  So, you have those problems in respect of that again.

MR FLANAGAN:   I believe that the application for the writ of certiorari and mandamus is actually an adjunct to my application for special leave to appeal.

McHUGH J:   No, it cannot be.  The special leave application is an application to commence proceedings in this Court, and that is to commence proceedings in the appellate jurisdiction of this Court.  The section 75 writs are exercises of the original jurisdiction of this Court.  They are two very different jurisdictions and you cannot rely on certiorari as an adjunct to your special leave application.  They are completely independent proceedings.

MR FLANAGAN:   Are we hearing the S100 of 2000 now or ‑ ‑ ‑

McHUGH J:   Yes, I would like you to put your arguments in respect of that, but what I have just put to you is, it seems to me, in respect of that relief, that you face, not the same, but fairly similar problems to the S40 special leave application.

MR FLANAGAN:   Basically, your Honour, I can only rely on what I have already given you.

McHUGH J:   Well, I understand that.  Well, if you have nothing further in respect of that, Mr Flanagan, I will deal – we will discuss this amongst ourselves for the moment because I have spent many hours reading these books and the matters are fairly complicated and it is better, from my point of view, at least, that we deal with them one at a time.  Thank you, Mr Flanagan.

MR FLANAGAN:   Yes, your Honour.

McHUGH J:   Just resume your seat.  Is it Mrs or Ms Handcock?

MRS HANDCOCK:   Mrs.

McHUGH J:   Mrs Handcock, we do not need to hear you on this and,  Mr Robertson, we do not need to hear you.

In matter S40 of 2000, the applicant seeks special leave to appeal against the decision of the Full Court of the Family Court given on 11 June 1998. He contends that that court erred in holding that the grounds that he wished to raise in an appeal under section 110 of the Child Support (Assessment) Act 1989 could not be brought under that section.

There are a number of grounds which this application for special leave to appeal must fail, but for present purposes it is sufficient to mention two.  First, Mr Flanagan’s special leave application was not filed until 30 March 2000, over 20 months after the judgment of the Full Court and over three years since the assessment under the Child Support (Assessment) Act was made.  It would only be in the most extraordinary circumstances, if ever, that this Court would extend the time for filing a special leave application against an assessment after such a delay and the applicant has, in our view, shown no grounds that would justify an extension of time in this particular case.

Mr Flanagan, in his written submissions, has referred us to decisions of the Administrative Appeals Tribunal where extensions of time were granted I other types of applications, in one case, where the delay was as long as four years.  However, those decisions provide no guidance as to how this Court discharges its functions in extending time in special leave applications either generally or in a case such as the present. 

An application for special leave to appeal is an application to commence proceedings in the appellate jurisdiction of this Court against judgments and orders which fix the rights and liabilities of parties.  Upon the expiration of the time for making the application, the successful party, in a civil matter, has a vested right to retain the judgment and that right should not be put at risk unless the interests of justice require it.    In our view, the interests of justice do not require putting at risk the setting aside of orders for the support of children, nearly 20 months after the expiration of the time for seeking leave to appeal against the assessment.

The second ground upon which it would not be proper to extend the time for a special leave application is that the assessment that was the subject of the appeal to the Full Court is no longer operative.  It would be an exercise of futility for this Court to grant leave to appeal against that order.  The application in matter No S40 of 2000 must be dismissed with costs.

It is convenient also at this stage to deal with matter No S100 of 2000. 

In this matter the applicant seeks the issue of writs of certiorari and mandamus against the respondents on the ground that the child support assessment made on 7 January 1997 constituted a denial of natural justice, was an improper exercise of power, was wrong in law and that the first respondent was biased towards the applicant.  The assessment is no longer operative and it would be a futile exercise for this Court to quash the assessment.  That, in itself, is a sufficient ground for refusing the applications for the issue of writs of certiorari and mandamus.

In addition, certiorari is not one of the writs specified in section 75(v) of the Constitution and could only be issued if the applicant obtained a writ of mandamus. Mandamus is not a writ as of right and it will not be issued as of course. Delay in applying for that writ is a ground for refusing to issue it, as is the existence of alternative remedies. Here, the delay in seeking mandamus is over three years and the applicant appears to have had other remedies open to him apart from applying to this Court under section 75(v) of the Constitution.

It is unnecessary to decide the point but without having heard Mr Flanagan’s oral arguments on the merits of the matter, I am bound to say that having studied the documents I am by no means convinced that there were grounds which had reasonable prospects of successfully obtaining either writ.

Accordingly, the application in No S100 of 2000 is dismissed with costs.

AT 12.29 PM THE MATTERS WERE CONCLUDED