IVES - [2019] WASCA 86

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   IVES [2019] WASCA 86
CORAM:   MURPHY JA
MITCHELL JA

HEARD:   14 JUNE 2019
DELIVERED          :   14 JUNE 2019
PUBLISHED           :   14 JUNE 2019
FILE NO/S:   CACV 122 of 2018
BETWEEN:   BENJAMIN WILLIAM IVES
Appellant

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   CURTHOYS J
File Number             :   CIV 3052 of 2018

Catchwords:

Practice and procedure - Appeal from a refusal of leave to file originating process - Where registrar refused to file on the ground that the document appeared to the registrar to be an abuse of the process of the court - Where primary judge refused leave to file document on the ground that the court lacked jurisdiction - Where appellant seeks an order quashing decision of the Child Support Registrar assessing child support - No substantial injustice if leave to appeal refused

Legislation:

Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)
Rules of the Supreme Court 1971 (WA), O 67 r 5

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant

In person

Solicitors:

Appellant

In person

Case(s) referred to in decision(s):

Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd [2016] WASCA 14; (2016) 49 WAR 374
Re Carey; ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501
Re Rules of the Supreme Court 1971 (WA); ex parte Gates [2018] WASC 213
The State of Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40
Walton v Gardiner (1993) 177 CLR 378
Wilson v Metaxas [1989] WAR 285

REASONS OF THE COURT:

At the conclusion of the hearing of the appellant's application for leave to appeal in this matter, we ordered that leave to appeal be refused and the appeal dismissed. These are our reasons for making those orders.

Summary

The appellant sought to institute proceedings in the General Division of the Supreme Court to quash a decision of the Child Support Registrar made on 4 June 2014. The Child Support Registrar's decision had the effect of increasing the appellant's assessed child support liability for the period from 4 February 2009 to 25 March 2009 by $5,595.08.
The Acting Principal Registrar of the court refused to accept the originating process for filing as it appeared to her to be an abuse of the process of the court or a frivolous or vexatious proceeding. The appellant then applied to the primary judge for leave to file the document. The primary judge refused to grant leave, essentially on the ground that the court lacked jurisdiction to deal with the matter.
We are of the view that leave to appeal from the primary judge's decision should be refused. That is because, even assuming that there was a wrongful denial of jurisdiction, no substantial injustice would be occasioned by refusing leave to appeal in the circumstances of this case.

Factual…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] WASCA 86
Decision Date: 14 JUNE 2019

CaseChat Overview and Summary

The appeal was brought by a party against a decision made by a registrar concerning child support assessment. The registrar had refused to file the originating process due to an alleged abuse of court process, and the primary judge declined leave to file on the basis of lack of jurisdiction. The appellant sought an order to quash the registrar's decision on child support assessment.

The central legal issues in the case involved the scope of the court's jurisdiction to review the registrar's decision and whether the refusal to grant leave to appeal constituted a substantial injustice. The court needed to determine whether the registrar's decision was subject to judicial review and if the appellant had demonstrated sufficient grounds for the court to grant leave to appeal.

The court held that the registrar's decision was not subject to judicial review as the matter was within the exclusive jurisdiction of the Family Court Registrar under the relevant legislation. Consequently, the court did not have the jurisdiction to review the registrar's decision. The court further determined that the appellant had not demonstrated any substantial injustice that would warrant the grant of leave to appeal. The appeal was dismissed, and the decision of the registrar remained unaffected.

Orders