Laurie and Child Support Registrar and Anor
[2010] FamCAFC 38
•11 March 2010
FAMILY COURT OF AUSTRALIA
| LAURIE & CHILD SUPPORT REGISTRAR AND ANOR | [2010] FamCAFC 38 |
| FAMILY LAW – APPEAL - COSTS – Appeal against costs order made by Federal Magistrate – Where the orders concerned costs of proceedings relating to child support – Where the Father did not appear at the hearing and did not prosecute his application – Where the hearing proceeded notwithstanding the absence of the Father – Where the Father had every opportunity to participate in the hearing and prosecute his application and chose not do so – Where even if the Father had appeared, and subject to anything further which he might have adduced the application would have been dismissed – Where based on the material available the Father failed to address any of the matters relevant to the exercise of discretion in granting leave to appeal pursuant to Child Support (Registration and Collection) Act 1988 (Cth) – Where the Father failed to address any possible errors by the Federal Magistrate in relation to her exercise of the discretion – In circumstances where the Father is seeking to essentially re-agitate in these costs proceedings the issues already dealt with in the substantive proceedings – Where the proceedings has been long and protracted – Application dismissed |
| CDJ v VAJ (No. 1) (1998) 197 CLR 172 Colgate-Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248 Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 Kohan and Kohan (1993) FLC 92-340 O'Rourke v P & B Corporation Pty Ltd [2008] WASC 36 (S) (unreported, Martin CJ, 14 March 2008) Penfold v Penfold (1980) 144 CLR 311 Yunghanns v Yunghanns (2000) FLC 93-029 |
| Child Support (Assessment) Act 1989 (Cth) Family Law Rules 2004 (Cth) |
| APPELLANT: | Mr LAURIE |
| FIRST RESPONDENT: | CHILD SUPPORT REGISTRAR |
| SECOND RESPONDENT: | Ms FILHO |
| FILE NUMBER: | SYC | 2252 | of | 2008 |
| APPEAL NUMBER: | EA | 119 | of | 2009 |
| DATE DELIVERED: | 11 March 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | O'Ryan J |
| HEARING DATE: | 12 February 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 14 September 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 971 |
REPRESENTATION
| APPELLANT: | No Appearance |
SOLICITOR FOR THE FIRST RESPONDENT: | Nick Gouliaditis, Australian Government Solicitor |
COUNSEL FOR THE SECOND RESPONDENT: | Mentioned by consent of First Respondent |
| SOLICITOR FOR THE SECOND RESPONDENT: | [Filho Lawyers] |
Orders
The application by Mr Laurie by way of Notice of Appeal filed on 12 October 2009 for leave to appeal against orders for costs made on 14 September 2009 by Federal Magistrate Sexton be dismissed.
The Application in an Appeal filed on 3 February 2010 by the Child Support Registrar be granted.
Mr Laurie pay the costs of the Child Support Registrar of and incidental to the applications in orders 1 and 2 hereof and the hearing on 12 February 2010.
The costs in order 3 hereof be assessed in the amount of $3,638.20.
IT IS NOTED that publication of this judgment under the pseudonym Laurie & Child Support Registrar and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
.
| THE APPELLATE DIVISION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 119 of 2009
File Number: SYC 2252 of 2008
| MR LAURIE |
Appellant
And
| CHILD SUPPORT REGISTRAR |
First Respondent
And
| MS FILHO |
Second Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Before me for hearing is an application by Mr Laurie (“the Father”) for leave to appeal against orders made by Federal Magistrate Sexton on 14 September 2009. The orders concerned costs of proceedings relating to child support. The First Respondent is the Child Support Registrar and the Second Respondent is Ms Filho (“the Mother”).
The Child Support Registrar was represented by Mr Gouliaditis of the Australian Government Solicitor (“AGS”). The Father and the Mother did not appear.
The Father did not file any material in relation to his application.
The Child Support Registrar relied upon an affidavit of Paulina Fusitu’a, solicitor at the AGS, affirmed on 12 February 2010, written submissions filed on 3 February 2010, and a bundle of documents from earlier proceedings. A list of the bundle of documents relied upon by the Child Support Registrar was filed on 3 February 2010. I also had the benefit of oral submissions made on 12 February 2010.
The Mother sought leave to adopt the written submissions of the Child Support Registrar filed on 3 February 2010 and also sought to rely on the contents of her affidavit affirmed on 23 March 2009 in the substantive proceedings before Federal Magistrate Sexton.
The Child Support Registrar also seeks to adduce further evidence. The application to adduce further evidence was filed on 3 February 2010. In support of the application the Child Support Registrar relied upon an affidavit of Ms Fusitu’a of 3 February 2010.
On 6 November 2009 the Chief Justice made an order pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”) that it was appropriate for the jurisdiction of the Family Court in relation to the appeal to be exercised by a single Judge.
For reasons I will give shortly, this application can be very briefly disposed of. The Father did not appear at the hearing before me and thus he did not prosecute his application. The Father had sought that the hearing be vacated. However, I resolved that the hearing would proceed notwithstanding the absence of the Father. In the circumstances, I feel constrained to set out some of the unfortunate history of the proceedings.
BACKGROUND
In reasons for judgment delivered on 10 July 2009 Federal Magistrate Sexton from [4] to [23] provided a detailed history of the proceedings which were repeated and elaborated upon by me in reasons for judgment I delivered on 12 October 2009 after hearing an application in an appeal by the Father by which he sought to reinstate an abandoned appeal.
Correspondence between the parties and the Family Court, marked as Exhibit A, also provides a history of the proceedings before me on 12 February 2010.
In addition, the Child Support Registrar put in evidence the affidavit affirmed by Ms Fusitu’a of 3 February 2010, which annexes various correspondence between the parties and the Family Court and various documents filed by the Father in the High Court of Australia, including his application for special leave to appeal a decision made by me on 12 October 2009. Close assessment of this affidavit illustrates that there has been long and protracted litigation between the Father and the Mother, and, due to the filing of a special leave application, that such litigation is not to be concluded anytime soon.
The Father and Mother have two children, born in 1994 and 1997 the subject of a child support assessment registered with the Child Support Agency on 27 January 1997.
On 5 October 2000, the Mother lodged a change of assessment application with the Child Support Registrar under Part 6A of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”) seeking an increase in the child support payable by the Father on the basis of the costs of childcare being greater than five per cent of the payee’s child support income, and on the basis of the Father’s financial position.
On 18 December 2000 the Child Support Registrar made a departure determination under Part 6A of the Assessment Act increasing the Father’s child support liability. The reasons contended for by the Mother were established and the annual rate of child support payable by the Father was increased to $10,534.20. It is this decision which the Father sought to impugn.
On 26 July 2006 the Mother was informed by a solicitor from the AGS that the Father had declared himself bankrupt. The Mother deposed in her affidavit of 23 March 2009 that as a result, proceedings for enforcement of child support obligations of the Father, which were against the Father and a company that was described as the alter ego of the Father, were withdrawn by the Child Support Registrar.
On 15 August 2007 the Father requested an extension of time within which to lodge an objection to the decision made on 18 December 2000. The application was made almost seven years after the decision.
On 5 October 2007 the Child Support Registrar refused the Father’s request. In a letter to the Father dated 5 October 2007, an objections officer stated that “the Child Support Agency must be satisfied that it is in the overall interests of justice to allow an extension of time in all the circumstances of the case.” The officer set out her brief reasons, which have been summarised as follows:
a) The Father did not establish that he was unable to lodge the objection within the required time-frame and the delay was seven years;
b) The Father did not contact the Child Support Agency until June 2002 to advise he was appealing the 1997 and 2000 decisions through the Court. The records of the Child Support Agency revealed the Father was employed in 2001. In regard to the Father’s claim that he had not been contacted by a Senior Case Officer, the decision stated that the Father was not available for his scheduled telephone conference. The Father did not provide evidence to establish a case for review of the decision of 18 December 2000;
c) Allowing an extension of time to object would prejudice the Mother.
On 29 October 2007 the Father lodged an appeal to the Social Security Appeals Tribunal (“SSAT”) seeking a merits review of the Child Support Registrar’s decision of 5 October 2007.
On 18 February 2008 the SSAT heard the appeal. The Father appeared in person assisted by Mr F. The hearing was adjourned until 3 March 2008 to obtain additional information from the Child Support Agency.
On 3 March 2008 the SSAT affirmed the Child Support Registrar’s decision not to grant an extension of time in which to lodge an objection to the Registrar's decision.
In her reasons of 10 July 2009 Federal Magistrate Sexton observed:
30. The SSAT decision recorded that Reasons for the Decision were despatched on 14 March 2008. However, the appellant adduced no evidence as to when he received those reasons. The original notice of appeal was filed on 21 April 2008, and may therefore have been out of time. None of the parties raised an issue as to whether leave was required by the appellant to extend time for the filing of the appeal, but to the extent necessary, I give such leave.
On 21 April 2008 the Father filed a Notice of Appeal (Child Support) in the Federal Magistrates Court in relation to the decision of the SSAT. On 23 May 2008 the Father filed an Amended Notice of Appeal (Child Support).
On 10 June 2008 the proceedings came before Federal Magistrate Lindsay. The Father made an oral application for the appointment of a McKenzie Friend which was dismissed. The Federal Magistrate also made orders that the Father comply with Rule 25A.05 of the Federal Magistrates Court Rules 2001 (Cth); the Father file and serve by 2 September 2008 any affidavit in relation to the appointment of a McKenzie Friend or in relation to any application for assistance from Mr F; each party file and serve by 2 September 2008 any further affidavits on which they intended to rely at the hearing and an outline of argument and list of authorities. The appeal was listed for hearing before Federal Magistrate Sexton on 16 September 2008.
On 4 August 2008 the Father filed an Application in a Case seeking an order that the Federal Magistrates Court provide him with a copy of the transcript of the hearing before the SSAT. On 19 August 2008 the application was dismissed by Federal Magistrate Jarrett.
On 16 September 2008 the Father sought an adjournment of the hearing before Federal Magistrate Sexton because he was awaiting the result of an application for review of a decision to refuse him a grant of legal aid. The Federal Magistrate adjourned the hearing, but noted that the matter would be heard on the adjourned date of 25 November 2008, whether or not the Father’s legal aid review application was successful. The Federal Magistrate also noted that the Father would need to show cause why he had not complied with the orders of 10 June 2008 in relation to an application for a McKenzie Friend before any further application for a McKenzie Friend would be considered.
The Mother contended that on 17 September 2008 the AGS provided her with a copy of the Notice of Appeal, having been informed by email on 16 September 2008 by Mr Gouliaditis of the AGS that “an appeal was on foot”.
On 11 November 2008, Mr George Potkonyak filed an Application in a Case seeking the following orders:
1. That leave be granted to Mr George Potkonyak to appear as the legal representative for the appellant [Mr Laurie] at the hearing of his appeal from the decision of the SSAT of 3 March 2008 and at any other subsequent proceedings in the same matter and in this Court, if such arise.
2. That the above order is made ex parte in chambers and the parties are duly notified of the decision not less than 7 days before the appeal hearing set for 25 November 2008.
On 25 November 2008 Federal Magistrate Sexton heard the Father’s application for the appointment of Mr Potkonyak as his advocate in the appeal proceedings and adjourned the substantive hearing of the appeal until 2 December 2008. The Father did not advise the Federal Magistrate that he would be unavailable on the adjourned date. In her reasons the Federal Magistrate observed at [17]: “On the contrary, the transcript of the proceedings on that date makes clear that the appellant confirmed his availability at either 10 a.m. or 2.15 p.m. on 2 December 2009. The appellant made no reference to his brother’s death in Greece, or of his need to travel overseas”.
In her reasons the Federal Magistrate also said:
24. Mr Maurice of counsel, representing the child support payee, appeared for the first time in these proceedings on 25 November 2008. Mr Maurice advised the court that [the Mother] had not been served with the Notice of Appeal or any other material filed in support of the appeal as required by Rule 25A.07 of the Federal Magistrates Court Rules. Mr Maurice sought leave to appear in the proceedings and to make submissions. There was no objection by the appellant or the Child Support Registrar to this course.
25. Section 110D of the Child Support (Registration and Collection) Act 1988 (“the Registration Act”) provides that the parties to an appeal under Division 3 of Part VIII are the “people who were the parties to the SSAT proceedings when the SSAT made the relevant decision.” In this case, the decision being reviewed was a decision to refuse an extension of time for the lodging of an objection. Therefore, unless [the Mother] applied in writing to the Executive Director of the SSAT to be made a party to the review pursuant to section 101(2) of the Act, then only the appellant and the Child Support Registrar are parties to the review. [The Mother] was not named as a party to the review in the SSAT Reasons for Decision.
In her affidavit affirmed on 23 March 2009 the Mother deposed that she briefed Richard Maurice of counsel to appear for her on 25 and 28 November 2008 and she did not consent to the hearing being adjourned to 25 March 2009 as Mr Maurice was not available and “as he has basically represented me for the last 12 years, he was the most suitable counsel to appear for me”. The Mother contended that the solicitor from the AGS insisted that the first date available being 25 March 2009 was the most suitable date for the further hearing.
On 26 November 2008 a Registrar of the Federal Magistrates Court received by facsimile a letter from the Father advising that he would be overseas for four to five weeks and requested the date for hearing of 2 December 2008 be vacated, and a new date allocated “preferably early in the new year”. The Father said that his brother in Greece had died.
On 28 November 2008 Federal Magistrate Sexton dismissed the application for Mr Potkonyak to appear for the Father and published detailed reasons for judgment. The Federal Magistrate reserved the costs of the Child Support Registrar and the costs of the Mother.
In her affidavit affirmed on 3 February 2010, Ms Fusitu’a deposed that in relation to the proposed adjournment requested by the Father she sent a letter to the Associate to Federal Magistrate Sexton, the Father, the Mother and Mr Maurice of Counsel on 2 December 2008. She annexed to her affidavit a copy of the letter, which stated the following:
This matter was last before the Court on 28 November 2008. On that occasion we did not have instructions from the Registrar about how the Court should proceed in response to [the Father]’s fax to the Court (copied to us) on 26 November 2008 requesting that the hearing on 2 December 2008 be adjourned because of the death of his brother in Greece.
Given that [the Father] has indicated that he will not be able to attend the hearing this afternoon the Registrar requests that the hearing be vacated and that the Court list the matter at the first available opportunity in 2009.
Please find attached short minutes of order which reflect the orders suggested by her Honour on 28 November 2008. The Registrar request the Court make these orders (or orders to their effect) in chambers.
We notified [the Mother] and her representative Mr Maurice by email last night of our intention to approach the Court with this request.
In the short minutes the orders sought were as follows:
1. The hearing on 2 December 2008 at 2pm by vacated.
2. The matter be set down for hearing on 25 March 2009 at 10am.
3. In relation to the applicant’s fax to the Court on 26 November 2008 requesting an urgent adjournment, the applicant file, 14 days before the hearing:
3.1evidence of the death of the applicant’s brother (including when it occurred);
3.2evidence of when the applicant became aware of the death of his brother; and
3.3certified copies of the applicant’s passport and airline tickets (or boarding passes) evidencing his travel to and from Greece.
4. Where the material filed pursuant to order 3 is not in English, that material be accompanied by an authorised English translation.
5. The parties have liberty to apply on 3 days’ notice.
6. Costs are reserved.
THE COURT NOTES THAT:
7. The matter will proceed whether or not the applicant remains self-represented.
In her affidavit, Ms Fusitu’a deposed that on the same day, 2 December 2008, at approximately 12.01pm she received an email from Mr Maurice of Counsel attaching a letter (“[Laurie].G.01.pdf”). She annexed to her affidavit a copy of the email and the attached letter. The letter was addressed to the Associate to Federal Magistrate Sexton from Mr Maurice and dated 2 December 2008. It said the following:
Please advise Her Honour that my client [the Mother] neither opposes nor supports the application to adjourn the hearing today.
However, if Her Honour is of the view that it ought to do so my client respectfully suggests the following additions be made to the draft orders submitted on behalf of he Child Support Registrar:
Add these orders:
3.4evidence of the amount spent on return air tickets to and from Greece and the source of funds used to purchase same.
3.5evidence of the amount spent for incidental travel expenses during the period spent by the Appellant outside of Australia during the said trip to Greece and the source of funds for payment of those expenses.
Add also:
7.These orders are to be served by the Australian Government Solicitor by sending them via pre-paid ordinary the Appellant’s home address at [address A].
In terms of free dates for the adjournment, I regret that I am not available on 25 March 2009. The dated I have available in March are the 18th and 19th and any day in the week commencing 30th March 2009. I would be grateful if the matter could be adjourned to one of those dates.
This letter was also sent to the Associate to Federal Magistrate Sexton via email at approximately 11:57am on 2 December 2008. A copy of the text of this email is included in a copy of an email sent later at 1:11pm which is annexed to the affidavit of Ms Fusitu’a affirmed on 3 February 2010 and was also tendered by Mr Gouliaditis on behalf of the Child Support Registrar at the hearing before me on 8 October 2009.
In her affidavit affirmed on 3 February 2010 Ms Fusitu’a deposed that at approximately 12.07pm on the same day, 2 December 2008, she received an email from the Associate to the Federal Magistrate copied to Mr Gouliaditis and herself. A copy of that email is annexed to her affidavit and was also tendered by Mr Gouliaditis on behalf of the Child Support Registrar at the hearing before me on 8 October 2009. The email stated the following:
Her Honour will make an Order in chambers today adjourning the hearing of the above matter.
In relation to the adjourned date, the only available date her Honour has, apart from 30 March 2009, is 4 May 2009. Please advise whether this date is suitable.
In my reasons for judgment dated 12 October 2009 I noted that the Mother had contended that on 2 December 2008 she had a telephone conversation with Mr Gouliaditis of the AGS about a hearing date on either 25 March 2009 or 4 May 2009 and the Mother said that “4 May 2009 is preferable”.
In her affidavit affirmed on 3 February 2010 Ms Fusitu’a deposed that at approximately 1:11pm on the same day, 2 December 2008, she sent an email to the Associate to Federal Magistrate Sexton and Mr Maurice in response to the 12:07pm email she had received from the Associate. A copy of that email is annexed to her affidavit and was also tendered by Mr Gouliaditis on behalf of the Child Support Registrar at the hearing before me on 8 October 2009. The email stated the following:
We understand that her Honour will be hearing short matters on 25 March 2009. The Child Support Registrar would expect the hearing of this matter to take an hour. The Registrar would like the matter to be heard on 25 March 2009.
We note that the payee’s representative is not available on that date however the principal parties are [Mr Laurie] and the Registrar. The payee was given leave to intervene to make supplementary submissions and this could be achieved by the provision of written submissions.
However, the Registrar would be, if necessary, available on 4 May 2009.
On 2 December 2008, without objection from the respondents, Federal Magistrate Sexton made an order in chambers vacating the hearing date of 2 December 2008 and listed the hearing for 25 March 2009. The Federal Magistrate ordered the Father to file and serve, by no later than 21 days prior to the hearing, evidence of the death of his brother in Greece, evidence as to when the Father became aware of the death of his brother, and certified copies of his passport and airline tickets (or boarding passes) evidencing his travel overseas. On 2 March 2009 the Father filed an affidavit in accordance with the orders of 2 December 2008.
In paragraph 29 of the affidavit affirmed by the Mother on 23 March 2009 she deposed:
The representations made to the Associate for Sexton FM in writing on 2 December 2008 at 1.11pm by email to the effect that ‘we note that the payees representative is not available on that date, however the principal parties are [Mr Laurie] and the Registrar. The payee was given leave to intervene to make supplementary submissions and this could be achieved by the provision of written documentation’
For reasons which are not entirely clear to me, the Father contended before me on 8 October 2009 that there was some sort of conspiracy between Federal Magistrate Sexton and the Mother and this is foundered on alleged communications between the Federal Magistrate and the Mother. I understand that the Father contends that the “representations” referred to by the Mother in paragraph 29 of her affidavit of 23 March 2009 were made by email communication between the Mother and the Federal Magistrate or the Associate to the Federal Magistrate.
In my reasons for judgment on 8 October 2009 I found that there was no evidence of any communications by email or otherwise between Federal Magistrate Sexton and the Mother of the type contended for by the Father. Based on the evidence of Ms Fusitu’a as outlined above I reiterate my earlier views.
On 13 March 2009 the Father, who was represented by Mr Potkonyak, filed a Notice of a Constitutional Matter under s 78B of the Judiciary Act 1903 (Cth). The Federal Magistrate observed at [22] that Mr Potkonyak was by then a practising solicitor. The Notice stated:
Sections 95C(2) and 98C(3) of the [Assessment Act] are repugnant to the Constitution and void ab initio on the grounds that:
(a) The sections purport to grant the judicial power to an administrative person, thus in breach of Ch III of the Constitution; and/or
(b) The sections purport to make law for the acquisition of property other than on just terms, thus, in breach of s 51(xxx) of the Constitution.
Section 29(1) of the [Assessment Act] grants power to an administrative person to make determination without having to conduct any inquiries or investigations.
Section 98H(4) grants power to an administrative person to conduct hearing, inquiry or investigation without regard to the rules of evidence.
Two determinations by the Deputy Registrar of the Child Support Agency, subject to the application for review by the applicant, have been based on the Deputy Registrar's assessment of the applicants earning capacity. Such an assessment could not have been constitutionally made without proper conduct of the hearing, inquiries or investigations with full regard to the rules of evidence.
The Commonwealth Attorney-General did not intervene and nor did the Attorney General for any State or Territory.
In relation to the s 78B Notice in her reasons of 10 July 2009 Federal Magistrate Sexton observed:
31. On 13 March 2009, a Notice of a Constitutional Matter under s.78B of the Judiciary Act 1903 was filed on behalf of the appellant. These issues are not referred to in the Amended Notice of Appeal (Child Support), and relied on by the appellant in his appeal from the SSAT decision. Mr Potkonyak for the appellant says the section 78B Notice is sufficient without amending the Notice of Appeal
…because the purpose of that notice is if the legislation is found to be unconstitutional then the appeal will not proceed at all because it will be appealing something that never existed so I can’t see any point…
32. I agree with the submission on behalf of the Registrar that the mere filing of a section 78B Notice is not sufficient to raise the constitutional issues in the appeal proceedings. These grounds should have been included in a further Amended Notice of Appeal. However, given that the matter dates back to a decision of the Registrar of December 2000, the length of time since the Notice of Appeal was filed and the manner in which the appellant has conducted this litigation, I determined, despite these procedural irregularities, to hear and determine both aspects of the matter, given court time had been allocated.
Compliance with s.78B of the Judiciary Act
…
34. Mr Potkonyak, for the appellant, submits that he gave notice of the constitutional matters referred to in the s.78B Notice to the Attorneys-General of the Commonwealth, the States and the Territories in accordance with the requirements of s.78B of the Judiciary Act 1903, by letter sent to all the Attorneys-General on 16 March 2009, enclosing the Notice. Mr Potkonyak could not provide the Court with a copy of any of the nine letters he had sent, but did tender copies of the responses he had received from the Attorneys-General of the Commonwealth, Tasmania and the Australian Capital Territory declining to intervene in the proceedings.
35. The Registrar’s solicitor submits that the duty under s.78B is twofold: firstly, the Court must be satisfied that the Notices have been sent to the Attorneys-General of the Commonwealth and of the States, and secondly, the Court must be satisfied that a reasonable time has elapsed since the Notices were sent for consideration by the Attorneys-General of the question of intervention in the proceedings or removal of the cause to the High Court. The submission on behalf of the Registrar was that the Court could firstly be satisfied that the notices had been sent on the basis of an undertaking given by Mr Potkonyak, as an officer of the court, and the three responses received and secondly, the Court could be satisfied that, even though only a relatively short time had passed since the Notices were sent, the period of time was reasonable for consideration of the question of intervention.
36. On balance, I accepted Mr Gouliaditis’ submissions that the requirements of s.78B had been complied with by the appellant and that the Attorneys-General of the Commonwealth and of the States were on notice of the proceedings, and had chosen not to participate.
In relation to the issues raised in the s 78B Notice the Federal Magistrate observed:
39. The appellant’s solicitor orally confirmed at the hearing that his constitutional challenge to the provisions of the Child Support(Assessment) Act 1989 (“the Assessment Act”) related to the provisions of that Act as they existed at the time of the Registrar’s decision on 18 December 2000.
40. The Notice did not challenge any provision of the Registration Act. However, in oral submissions, the appellant’s solicitor raised objections to certain sections of Part 7 and 8 of the Registration Act.
On 25 March 2009 Federal Magistrate Sexton heard submissions from Mr Potkonyak for the Father and Mr Gouliaditis representing the Child Support Registrar, in relation to the constitutional matters raised by the Father in the s 78B Notice. The Federal Magistrate then proceeded “to hear the substantive appeal from the decision of the SSAT”. At the conclusion of the hearing the Federal Magistrate reserved judgment.
In her reasons the Federal Magistrate said:
26. On 25 March 2009, Mr Potkonyak, solicitor representing the appellant, opposed [the Mother] being named as a respondent to the proceedings. Mr Potkonyak submitted that [the Mother] “was not a party originally and she just appeared as a party all of a sudden half way through the proceedings with no order by Your Honour, no application by the mother, nothing.” There was no appearance by [the Mother] or her counsel on 25 March 2009. Mr Maurice had advised of his unavailability on that date and [the Mother] noted an objection to the hearing date in an affidavit sworn by her on 23 March 2009 and filed the day before the hearing. [The Mother] did not, however, make an application for an adjournment of the hearing. Although he objected to [the Mother] being named as a respondent, Mr Potkonyak did not object to the affidavit of [the Mother] sworn 23 March 2009 being read in the proceedings.
27. Rule 11.03 of the Federal Magistrates Court Rules 2001 provides that a person may apply to the Court to be included as a party to the proceedings. On 25 November 2008, I gave leave to Mr Maurice to file a Notice of Address for Service in Court as counsel for the payee. Thereafter Ms [the Mother] was named as the second respondent in the proceedings.
In her reasons the Federal Magistrate also said:
73. The appellant filed an Amended Notice of Appeal on 23 May 2008 which lists 10 grounds of appeal. He did not file a further Amended Notice. The appellant signed his own written submissions in support of his appeal in August 2008, though the words “A friend, [Mr F], assisted the Appellant with the preparation of this document” appear type written at the conclusion of the document. There is no certification on the document to the effect that it was necessary for the document to be read to the appellant. As already noted, the appellant signed the document.
74. It seems at the hearing the appellant’s solicitor abandoned the grounds of appeal set out in the Amended Notice of Appeal of May 2008. Mr Potkonyak did not address the matters addressed in the appellant’s written submissions, nor did he address the grounds set out in the Amended Notice of Appeal. I found it difficult to follow the appellant’s case, as it seems did the solicitor for the Registrar. Mr Gouliaditis said.
Your Honour, I am slowly at a loss because I am not sure how any of those arguments [concerning the constitutional issues] relate to any of the appeal points raised in the notice of appeal.
75. I had explained to Mr Potkonyak at the time of hearing that I would hear his submissions in relation to the constitutional issues, and then in relation to further matters raised on the appeal from the SSAT decision.
76. At hearing, the appellant’s solicitor said, after making submissions in relation to the constitutional issues:
I… have nothing to argue there. My argument would be that the decision of the – the determination of the Registrar was invalid and there wouldn’t be even need for the appeal to the Tribunal at all…
…
the error of law would come back to the constitutional issue because the – what has been taken as facts – as evidence was not evidence presented in accordance with the law because accusations by somebody it was not evidence at all.
77. Mr Potkonyak then submitted that the appellant delayed in lodging an objection for this reason:
…because he didn’t know what to object to. I wouldn’t know what to object to.
78. Inexplicably, this reason contradicts the position advanced by the appellant in his written submissions of August 2008 when the appellant says
Ms Benk has incorrectly and erroneously found that the main reason for the Appellant not making the objection was a deliberate plan not to do so.
79. I find a lack of clarity and lack of consistency in the appellant’s position, but endeavour to address the grounds of appeal set out in the Amended Notice of Appeal. These grounds are not always consistent with the written submissions filed in August 2008. (all footnotes omitted)
On 10 July 2009 Federal Magistrate Sexton delivered reasons and made the following orders:
(1) The appellant’s Notice of Appeal (Child Support) filed on 21 April 2008 and Amended Notice of Appeal (Child Support) filed on 23 May 2008 is dismissed.
(2) The First Respondent’s application for costs is listed for hearing at 10.00 am on 7 September 2009.
(3) The First Respondent file and serve any material on which they intend to rely by no later than 4.00 pm 30 July 2009.
(4) The Second Respondent file and serve any application for costs and affidavit in support within 21 days, such application is returnable on 7 September 2009 noting the parties should expect the matter to be heard on that day.
(5) The Appellant file and serve any material in response to the application or applications for costs by no later than 4.00 pm on 21 August 2009.
On 30 July 2009 the Child Support Registrar filed submissions on costs pursuant to order 3 of the orders made 10 July 2009.
On 6 August 2009 the Father filed a Notice of Appeal against the orders made by Federal Magistrate Sexton. The appeal was assigned the number EA85/2009. The Father sought leave to appeal and in that part of the Notice where there is a requirement to state “briefly the facts relied on in support of the application for leave to appeal and which establish an error of principle or a substantial injustice” it is stated:
1. The provision of the Act under which the assessment was made is being challenged on constitutional grounds.
2. The matter is of a significant public interest.
The Grounds of Appeal were as follows:
1. Breach of Chapter III of the Constitution
The learned Magistrate erred in finding the Constitutional challenge to certain provisions of the Child Support (Assessment) Act 1998 that deal with the “earning capacity” of a payer, as advanced by the applicant (now appellant), as being without merit. Her honour quoted and interpreted correctly Gleeson CJ in Luton v Lessels (2002 210 CLR 333 at 21: “The making of decisions by the application of legal criteria to facts as found in characteristic, but not distinctive, of the judicial function.”
However, her Honour failed to grasp the gravamen of the argument, namely that, when it comes to the determinations by the Child Support Registrar based on the “earning capacity” of a payer, the Registrar is not applying law to facts but rather applying law to fiction: unproven allegations, assertions, insinuations, suspicions or even malicious statements. The Registrar is not capable of converting fiction into facts, since the Registrar is not required to make inquiries [s98(1)(b)] and, if an inquiry is made, the Registrar is not bound by the rules of evidence [s98H(4)].
By the provisions of s110 of the Act, as it stood in 2000, the aggrieved person could have appealed directly to the court and be heard de novo. However, every determination by the Registrar based on the “earning capacity” would be subject to a de novo hearing since it was not, and could not be, based on facts because the Registrar is not capable of establishing facts. Yet, the Registrar is given powers by s98C(3) as those given to a judicial officer by s117 of the Act.
The current version of the Act is even more onerous: it does not have a provision for an appeal to a court as of right but only on the grounds of the error of law. In other words, fiction as established by the Registrar gains a status of facts, that is, as bona fides evidence but without having regard to any rules of evidence.
2. Breach of s 51(xxxi) of the Constitution
A determination made in the above manner is a law for the acquisition of property other than on just terms. The word “just”, as used in s51(xxxi), means, inter alia, “according to law”.
3. Joinder of [Ms Filho] to the proceedings below as a second respondent was done without an application and through a private communication between [Ms Filho] and her Honour, Sexton FM or her Honour’s Associate. The applicant (now appellant) was not given an opportunity to object.
The proposed Notice of Appeal sought to have the orders made by Federal Magistrate Sexton on 10 July 2009 set aside. In the written submissions of the Child Support Agency it was pointed out that in so far as the orders sought to set aside the directions made for the filing of material and submissions on costs, the orders sought were defunct given that such proceedings had already concluded. The Father also sought an order that the joinder of the Mother as a party in the proceedings be declared invalid.
I interject and note that in submissions to me on 8 October 2009 it was observed by the Child Support Registrar that the Mother was not named as a respondent in the appeal but as a person who was “directly affected by the orders sought in the Notice of Appeal, or who is likely to be interested in maintaining the order under appeal” and should probably have been made a respondent: see r 22.04 of the Family Law Rules 2004 (Cth) (“the Rules”). It was said that, in any event, by letter dated 2 October 2009 to the Court, the Mother has indicated that she did not propose to seek to be made a party to the appeal for the purposes of that application, but reserved her right to apply to be joined at a later time.
In an affidavit sworn 10 September 2009, Mr Potkonyak contended that on 6 August 2009 the Notice of Appeal was not filed by the Registry staff “but rather it has been filed at a later date and [he had] received sealed copies several days later”. Mr Potkonyak contended that if the Notice of Appeal was filed on 6 August 2009, the draft index for the appeal book would have been due on 3 September 2009. He contended that he prepared the draft index, however, he delayed filing it until the day of the hearing of the costs application, namely, 7 September 2009.
By letter dated 10 August 2009 the assistant to the Appeals Registrar of the Eastern Region wrote to the solicitors for the Father and enclosed “stamped service copies of the Notice of Appeal filed on 6 August 2009”. Thereafter, reference was made to r 22.13(2) and (3) of the Rules. Without repeating all of what was said in the letter, it was stated that “you should therefore, ensure that a draft index to the appeal books is filed with me, and served on all other parties to the appeal, no later than 4.30 pm on 3 September 2009” and “failure to file a draft index by 4.30 pm on 3 September 2009 will result in the appeal being deemed abandoned pursuant to Rule 22.13(3)”. There was included with the letter a draft form of appeal index and a copy of relevant rules being rr 22.13, 22.19, 22.20, 22.21 and 22.22 of the Rules.
On 2 September 2009 the Mother filed an application in a case in relation to the costs proceedings and sought the following:
1. I seek leave of the Court to adopt and/or rely on paragraphs 1 to 14 inclusive of the First Respondent’s Submissions on Costs filed on 30 July 2009.
2. I seek an order for costs incurred for briefing Counsel in this matter to appear on 25 November 2008 and 28 November 2008.
3. I seek an order for costs in the following terms, “The Applicant pay the Second Respondent, within one month after service of a sealed copy of this order on him by ordinary prepaid post to her address for service, $1,804.00 as costs of these proceedings.”
On 4 September 2009 the Appeals Registrar made the following order in relation to EA85/2009:
1. The Notice of Appeal filed by [Mr Laurie] on 6 August 2009 from Orders made by Federal Magistrate Sexton on 10 July 2009 has been deemed abandoned pursuant to Rule 22.13(3) as the appellant failed to file and serve a draft index by 3 September 2009.
On 7 September 2009 Federal Magistrate Sexton heard a costs application by the Child Support Registrar and the Mother. The Child Support Registrar sought costs in the amount of $18,238.56 and the Mother sought an amount of $1,804.00. Her Honour reserved judgment.
Before me on 8 October 2009, Mr Potkonyak contended that on 7 September 2009 he attempted to file a draft appeal book index together with an application for leave to file a draft appeal book index. He contended that he was informed by Registry staff that the appeal was deemed to have been abandoned.
On 10 September 2009 Mr Potkonyak filed a draft appeal book index. There were thirteen documents identified in the index which included orders made by Rowlands J on 30 September 1998 and 2 February 1999 and an “email from [the Mother] (or her representative) to the associate of Sexton FM of 2 December 2008” and “all other correspondence between [the Mother] and the associate of Sexton FM”. As I have already observed, there was no evidence of any email communication between the Mother and the Federal Magistrate.
On the same day, 10 September 2009, the Father filed an application in an appeal seeking the following orders:
1. That the appeal EA85/2009, for which the notice of appeal was filed on 7 August 2009, be re-instituted.
2. That leave be granted for filing of the Draft Index for the Appeal Book out of time to enable the inclusion (or otherwise) of the Cost Orders following the Cost Application hearing set for 7 September 2009.
On 14 September 2009 Federal Magistrate Sexton delivered judgment in relation to the costs applications and made the following orders:
1. The applicant pay the Child Support Registrar’s costs of the appeal from a decision of the Social Security Appeals Tribunal in the sum of $12,463.80, such sum to be paid to the first respondent within 2 months of the date of this order.
2. The applicant pay the Child Support Registrar’s costs of the costs application in the sum of $3,080.00, such sum to be paid to the first respondent within 2 months of this order.
3. The applicant pay [Ms Filho’s] costs of the appeal in the sum of $1330, such sum to be paid to [Ms Filho] within 2 months of the date of this order.
The Father is now seeking leave to appeal against these orders.
On 28 September 2009 the Child Support Registrar filed a Notice of Constitutional Matter in EA85/2009. The s 78B Notice was filed by the Child Support Registrar because the Father failed to file and serve such a notice notwithstanding the issues raised in the proposed grounds of appeal in EA85/2009.
On 8 October 2009, exercising jurisdiction under s 107A(9)(d) of the Child Support (Registration and Collection) Act 1988 (Cth) (the “Collection Act”), I heard the application in an appeal (EA85/2009) by the Father to reinstate his appeal against the orders of Sexton FM on 10 July 2009 or, more accurately, the application for leave to appeal, by seeking an extension of time in which to file a draft index: see r 1.14 of the Rules.
On 12 October 2009 I dismissed that application and gave reasons for judgment and among other reasons said at [114] that:
In relation to the merits of the proposed appeal I accept and adopt the submissions on behalf of the Child Support Registrar. In my opinion, the grounds of appeal are futile.
In the Child Support Registrar’s written submissions filed 3 February 2010 my reasons refusing to reinstate the appeal were summarised as follows:
1. There was no proper reason for the delay in filing the draft index to the appeal book. Instead, the [Father]’s solicitor’s delay was deliberate and not the result of any misunderstanding about when the time limit ran.
2. The proposed grounds of appeal were futile.
3. Given the long history of the proceedings, allowing the reinstatement would be prejudicial to the public interest.
On the same day, 12 October 2009, the Father filed a Notice of Appeal from the costs orders made by Federal Magistrate Sexton on 14 September 2009. The appeal was assigned the number EA119/2009. This is the matter that I am now dealing with.
On 29 October 2009 the Father filed a draft appeal index in matter EA119/2009.
In her affidavit affirmed 3 February 2010, in matter EA119/2009, Ms Fusitu’a deposed that on 11 November 2009 the Father filed a special leave application in the High Court (Appeal Number S302/2009) from my orders made on 12 October 2009 and an affidavit sworn by Mr Potkonyak on the same date. A copy of the special leave application and the affidavit are annexed to her affidavit. The application for special leave to appeal states the following:
APPLICATION FOR SPECIAL LEAVE TO APPEAL
1. The applicant applies for special leave to appeal from the whole of the judgment of the Full Court of the Family Court, of the Honourable Justice O’Ryan, given on 12 October 2009.
Grounds
2. Ground 1: His Honour erred in not taking into account that the ultimate decision in the attempted appeal, which was deemed to be abandoned, involves a matter of public interest, involving Constitution or its interpretation.
Ground 2: His Honour erred in failing to take into account material evidence tendered in the course of proceedings by the respondent in the proposed appeal.
Orders sought
3. [a] That compliance with sub-rule 41.02.1 in Part 41 of the High Court Rules be dispensed with (see Rule 41.02.2).
[b] That the orders subject to this application for special leave to appeal be set aside and that the Full Court of the Family Court be directed to reinstate the Appeal No. EA 85 of 2009 filed in that Court on 6 August 2009.
[c] That the respondent pays the applicant costs of this proceeding and the proceeding leading to the orders subject to this application.
In the affidavit of Mr Potkonyak sworn 11 November 2009 he asserts that he has been representing the Father “in the Federal Magistrate’s Court and the Full Court of the Family Court since 24 February 2009 in a dispute between the applicant and the respondent that dates back to the year 1998”. He then briefly states from paragraph 4 to 8 the history of the case and the reasons for the action in the High Court. He deposes at paragraph 8 that, “[a]n attempt was made to file a notice of appeal of the orders of 12 October 2009 [in the Family Court] … but the filing of that notice was refused by the Appeals Registry of the Family Court”. Annexed to his affidavit was the letter dated 5 November 2009 from the Family Court to Mr Potkonyak stating the following:
I refer to the notice of appeal received in the appeal registry on 2 November 2009 seeking to appeal the decision of the Honourable Justice O’Ryan made on 12 October 2009, and confirm I cannot accept that notice of appeal for filing.
…
Pursuant to section 94(2F) of the Family Law Act, no appeal lies from that discretion.
It is a matter for you, as a legal practitioner, to advise your client whether or not you may have grounds to seek special leave to appeal in the High Court.
You must apply direct to the High Court for special leave to appeal. You should, however, make your own enquiries at the High Court regarding any applicable time limits …
Mr Potkonyak further deposed at paragraph 3 of his affidavit that he had filed his special leave application late due to the late receipt of the letter from the Family Court. He deposed that “the reason for the two days delay in filing this application” was because “the letter from the Appeal Registry (East) of the Family Court, refusing to accept the filing of the Notice of Appeal by the [Father had] been received only on Friday, 6 November 2009. We note that the application should have been filed on 9 November 2009, which was 28 days after judgment was pronounced in the Family Court. Mr Potkonyak also deposed at paragraph 10 that “[c]onsidering the fact that, in my opinion, the matter involves the Constitution or its interpretation … the [Father] has been advised, and he has instructed me, to file in this Court a section 78B notice, which will be filed shortly”.
In her affidavit affirmed 3 February 2010, Ms Fusitu’a deposed that on
18 November 2009 the Father filed a notice of a constitutional matter. The Father gave notice that the proceeding involves a matter arising under the Constitution or involving its interpretation within the meaning of Section 78B of the Judiciary Act 1903 (Cth).It then states the following at paragraph 2 and 3:
2. Combination of the provisions of sections 98C(2), 98C(3), 117(4)(da), 98H(1)(b) and 98H(4) of the Child Support (Assessment) Act 1989 are repugnant to the Constitution and void ab initio on the grounds that:
(a) The provisions purport to grant to an administrative person a power exceeding the power given to a judicial officer, thus offending Chapter III of the Constitution.
(b) A departure from the administrative assessment of child support determinations, based on “earning capacity” of a liable parent or carer, purportedly authorised by the said provisions, has an effect of a law for acquisition of property other than on just terms, thus offending section 51 (xxxi) of the Constitution.
3. On 18 December 2000 the Child Support Registrar made an assessment decision based on the alleged earning capacity of the applicant [Mr Laurie]. All subsequent proceedings in the Social Security Appeals Tribunal, Federal Magistrate’s Court and the Full Court of the Family Court were the consequence of that assessment decision.
In her affidavit affirmed 3 February 2010, Ms Fusitu’a deposed that on 10 December 2009 the Father filed a draft notice of appeal and a summary of argument. Ms Fusitu’a annexed the documents to her affidavit. In the draft notice of appeal the grounds relied upon are identical to the grounds as relied upon in the special leave application. However, in the draft notice of appeal the Father seeks the following orders:
Order(s) sought
[a] That the orders subject to this application for special leave to appeal be set aside and that the Full Court of the Family Court.
[b] That the question of the constitutional issue raised in the notice of constitutional matter filed 18 November in the High Court be resolved before any further hearing in the matter
[c] That the respondent pays the applicant costs of this proceeding and the proceeding leading to the orders subject to this application.
In her affidavit affirmed on 3 February 2010 Ms Fusitu’a deposed that on 6 January 2010 that the Father filed an amended summary of argument and an amended reply to the respondent’s summary of argument.
On 10 December 2009 appeal matter EA119/2009 came before me for directions and I made the following orders:
1. The appeal be listed before me at 10.00 am on Tuesday 9 February 2010.
2. On or before 4:00 pm on Friday 22 January 2010 the Appellant file and serve an amended Notice of Appeal.
3. On or before 4:00 pm on Friday 22 January 2010 the Appellant file and serve a list of the documents that were before the Federal Magistrate upon which the Appellant seeks to rely.
4. In relation to the obligation in the preceding order the Appellant identify the date of filing of any Application and Response, the date of filing of any affidavits and also identify any exhibits which the Appellant seeks to rely upon.
5. On or before 4:00 pm on Friday 22 January 2010 the Appellant file and serve a written summary of argument and list of authorities (if any).
6. On or before 4:00 pm on Friday 22 January 2010 the Appellant file and serve any application to lead further evidence and any material in support thereof.
7. On or before 4:00 pm on Wednesday 3 February 2010 the Respondent file and serve a list of any further documents that were before the Federal Magistrate, not included in the Appellant’s list, upon which she seeks to rely, together with a written summary of argument and a list of authorities (if any).
8. In relation to the obligation in the preceding order the Respondent identify the date of filing of any Application and Response, the date of filing of any affidavits and also identify any exhibits which the Respondent seeks to rely upon.
9. On or before 4:00 pm on Wednesday 3 February 2010 the Respondent file and serve a written summary of argument and list of authorities (if any).
10. On or before 4:00 pm on Wednesday 3 February 2010 the Respondent file and serve any application to lead further evidence and any material in support.
11. The costs of today’s proceedings be reserved.
12. The parties have liberty to list the matter for mention before me on arrangement with my Associate.
On 10 December 2009 the court received a draft appeal index as prepared by the Child Support Registrar. It included documents from the Federal Magistrate’s Court in proceedings SYC 2252 of 2008, documents from the Family Court in proceedings EA85/2009 and two exhibits. The draft appeal index was not filed.
By letter dated 14 December 2009 the solicitor for the Child Support Registrar sent a letter to Mr Potkonyak, notifying him that his client needed to seek leave to appeal from the costs judgment of Sexton FM delivered 14 September 2009. He was advised by the solicitor for the Child Support Registrar that:
4. In our view the notice of appeal constitutes an abuse of process …
…
5. Given that the appeal is an abuse of process, we are instructed to seek indemnity costs should your client not discontinue these proceedings as soon as practicable.
6. Further, should the proceedings not be discontinued, our client will also consider making an application that any costs order in the proceedings be made against you personally (pursuant to r 19.10(1)(c) and (2)(d) of the Family Court Rules 2004).
By letter dated 21 December 2009 Mr Potkonyak wrote to the Eastern Appeals Registrar and stated the following:
Due to the threat conveyed to me by the Australian Government Solicitor, purportedly on the instruction of the Child Support Registrar (refer attached), I have been requested by my supervising solicitor, Mr Rocco Ardino of Morgan Ardino & Co., to file a notice of ceasing to act (enclosed) …
I kindly ask that the appeal process in the appeal No. EA 119/2009 be placed on hold until I received a reply from the Honourable Chief Justice of the Family Court and/or other authorities whom I intend to contact regarding this matter.
Enclosed with the letter was a Notice of Ceasing to Act. It was filed in the Court on 21 December 2009.
By 4.00pm on 22 January 2010, the Father had not complied with Orders 2, 3, 5 and 6 of the orders I made on 10 December 2009 in appeal matter EA119/2009.
On 27 January 2010 the Father sent a letter by facsimile to the Eastern Appeal Registry of the Family Court. In his letter the Father stated the following:
I hereby request a substantial extension of time to this hearing date – somewhere in the order of several months.
I am currently in the South of France. I have been visiting my daughter, my son-in-law and their family since early December 2009. I was planning to be back in Australia on 20 January 2010. Unfortunately, due to inclement weather conditions, my flight has been postponed. I now anticipate arriving back in Australia on 10 February 2010.
This is one day later than the scheduled hearing date of 9 February 2010.
Since I have left Australia in early December, I have not been in direct contact with my solicitor, Mr George Potkonyak.
However, I understand that my solicitor, Mr George Potkonyak from Morgan Ardino & Co, has recently withdrawn his services. I understand that this was as a result of a letter dated 14 December 2009 from the Australian Government Solicitor and in particular, paragraph 6 of that letter.
Paragraph 6 states that the Child Support Registrar would consider “making an application that any cost order in the proceedings be made against you personally” (ie my solicitor, Mr George Potkonyak).
A copy of the AGS letter dated 14 December is attached.
Mr George Potkonyak was representing me on a pro bono basis. As such, I understand that he has now found that these new circumstances to be quite untenable.
I believe that once back in Australia I also would need some time to consider my position. I now do not have a solicitor to represent me and I believe that I am not capable of representing myself. Therefore I have requested a substantial extension of time of several months duration to the proposed 9 February 2010 hearing date.
Trusting that this does not cause you too much inconvenience.
On 1 February 2010 the Eastern Appeals Registry responded to the Father’s facsimile dated 27 January 2010 by email. The email advised the Father that the Court required the written consent of the other party in order to change the listing date and advised that if he was unable to acquire the written consent of the other party that he would have to file an application in an appeal and affidavit in support seeking that the listing date be changed. A blank copy of an application in an appeal and affidavit was attached to the email. I note that no application in an appeal has been received from the appellant seeking an adjournment.
Pursuant to orders 7, 8, 9 and 10 made by me on 10 December 2009, the Child Support Registrar filed on 3 February 2010 a summary of argument; an index of documents that would be sought to rely on at the hearing; an application to adduce further evidence and an affidavit by Ms Fusitu’a in support.
In the application in an appeal the Child Support Registrar seeks the following orders:
1. Leave be granted to the Child Support Registrar to adduce further evidence at the hearing before O’Ryan J on 9 February 2010, constituting the annexures to the affidavit of Paulina Fusitu’a affirmed on 3 February 2010 and filed in support of this application.
The annexures to the affidavit of Ms Fusitu’a affirmed on 3 February 2010 comprise of various correspondence between the parties and the Family Court and various documents filed by the Father in the High Court including his application for special leave to appeal the decision made by me on 12 October 2009 in matter EA85/2009. Ms Fusitu’a deposed in her affidavit that: “The Child Support Registrar seeks leave to tender [these] annexures … to demonstrate that the proceedings brought in the High Court seek to re-agitate issues which are currently before the Court in these [current] proceedings (EA119 of 2009)”.
On 4 February 2010 the Eastern Appeal Registry had a telephone conversation with the solicitor of the Child Support Registrar and asked whether the solicitor had been in contact with the Father regarding his request to change the listing date. The solicitor for the Child Support Registrar replied that the solicitor had not been in contact with the Father and was not aware of such a request. The solicitor advised that it would be necessary to see a copy of the email from the Father requesting a change in the listing date and would then need to seek instructions.
On the same day, 4 February 2010, the Eastern Appeal Registry forwarded to the solicitor for the Child Support Registrar by facsimile the letter from the Father to the court dated 27 January 2010. The solicitor for the Child Support Registrar, in return, sent a letter by facsimile dated 4 February 2010 to the Eastern Appeal Registry which stated:
2. … We note that the facsimile to the Court purports to have been copied to Nick Gouliaditis of our office but that the facsimile was never received by our office.
3. We do not consent to any adjournment of the hearing listed on 9 February 2010 and oppose any application in a case for an adjournment by [Mr Laurie] for the following reasons:
a.It has been eight weeks since the Court listed this matter for a 9 February 2010 hearing.
b.it has been five weeks since Mr Potkonyak filed a notice of ceasing to act for [Mr Laurie]. There is no evidence that [Mr Laurie] has made attempts to retain alternative legal representation and, in our, view, he has had ample time to do so.
c.[Mr Laurie] says he seeks ‘a substantial extension of several months’ because he ‘need[s] some time to consider his position. In our view, [Mr Laurie] has ample time to consider his position, notwithstanding his overseas trip.
d.The proceedings below have been the subject of a number of adjournments instigated by [Mr Laurie]. Our client’s position is that the current proceedings constitute an abuse of process and should be dismissed. Adjourning the matter further will simply increase costs to our client. These proceedings were brought by [Mr Laurie] and there is an onus on him to prosecute them diligently.
e.[Mr Laurie] has failed to comply with O’Ryan J’s directions made on 10 December 2009 and we have not received any communication from [Mr Laurie], or on his behalf, since we were served with Mr Potkonyak’s notice of ceasing to act.
f.The Child Support Registrar has prepared for the hearing next week and has filed and served submissions and other relevant documents. The Child Support Registrar is ready to proceed to defend the hearing.
4. If [Mr Laurie] had been prepared to proceed with the hearing as soon as he returned from overseas, later in the week beginning 8 February 2010, our client would have considered such an adjournment. However, for the reasons above, we do not consent to the substantial adjournment sought and we would oppose any such application.
On 5 February 2010 at approximately 9.00am I was notified by the Eastern Appeal Registry of this correspondence. At approximately 9.26am I requested that the Eastern Appeal Registry enquire with the solicitor for the Child Support Registrar and the Father as to whether the parties would consent to an adjournment until Friday, 12 February 2010. This would allow the Father to appear in person as he stated in his letter that he would be returning on Wednesday, 10 February 2010. This request was made because of what was said in paragraph 4 of the letter dated 4 February 2010 from the solicitor for the Child Support Registrar.
On 5 February 2010 at approximately 11.13am the Eastern Appeals Registry emailed my Associate and stated that the solicitor for the Child Support Registrar had advised that the Registrar would consent to the matter being stood over to Friday, 12 February 2010.
On 5 February 2010 at approximately 12.21pm the Eastern Appeals Registry sent an email to the Father attaching the letter from the solicitor for the Child Support Registrar dated 4 February 2010 and notified him that:
His Honour Justice O’Ryan has reviewed your correspondence dated 27 January 2010 and the correspondence of the Australian Government Solicitor of 4 February 2010. Although he expresses no view as to the correspondence received, he does note that you anticipate arriving back in Australian [sic] on 10 February 2010 and that the AGS states that they would consider an adjournment to later in the week beginning 8 February 2010.
What are your thoughts on the matter being stood over until Friday 12th February at 10am so that both parties can attend? I note that the Australian Government Solicitor has consented to this.If you do not agree with this course of action, then the matter will proceed on Tuesday 9 February 2010. If you do agree with this course of action, then the listing of 9 February 2010 will be vacated.
Please advise us of your position by no later than 10am on Monday, 8 February 2010. (emphasis in original)
On 5 February 2010 the Mother sent to the Appeal Registry a Notice of Address for Service and a covering letter which stated the following:
… I have read the submissions for the current appeal filed by the [Child Support Registrar] and seek leave to adopt those submissions.
In relation to [the Father’s] application for an adjournment I oppose any such application and rely on the contents of my Affidavit filed with the Federal Magistrates Court on 24 March 2009 for the substantive proceedings before Federal Magistrate Sexton. This affidavit provides an overview of [the Father’s] vexatious conduct in proceedings before this Court to date and also deals with the ground of appeal that I have not been named as a Second Respondent.
I also wish it noted that [the Father] has not served me with any material as ordered in Orders 2, 3, 4, 5 & 6 by His Honour Justice O’Ryan on 10 December 2009.
On 8 February 2010 at approximately 10:44am the Eastern Appeals Registry sent an email to my Associate notifying him that the solicitor for the Child Support Registrar called to find out whether the matter would proceed on 9 February 2010. The Eastern Appeals Registry confirmed that the Registry had not heard from the Father. At approximately 10:48am my Associate advised the Eastern Appeals Registry that the matter would proceed at 10.30am on 9 February 2010 and that the Child Support Registrar and the Father should be notified. At approximately 11.31am, the Eastern Appeals Registry sent an email to my Associate advising that the solicitor for the Child Support Registrar was notified that “the matter will remain listed on 9.02.10”. At approximately 11.40am, the Eastern Appeals Registry sent an email to the Father advising that: “As we have not received a reply to our email [on 5 February 2010], please note that the matter remains listed on Tuesday, 9 February 2010 at 10am”.
On the same day, 8 February 2010, an email was sent at approximately 4.41pm to the Associate to Federal Magistrate Sexton and the Enquiry Centre at the Family Court from Ms M, which stated:
Please be advised that [Mr Laurie] will not be in attendance tomorrow. [Mr Laurie], my Father is on a flight home and with the time delay will not be arriving until 10.02.2010.
I believe he has advised the Court of this situation already however, I picked up his mail on the weekend and there are three lots of communication from the AGS all relating to proceedings to be heard on 09.02.2010.
I didn’t know who to inform as I just found out that my Father finds himself, once again, unrepresented.
The email received by the Father’s daughter was then forwarded to my Associate by the Associate to Federal Magistrate Sexton at approximately 4.43pm on
8 February 2010. The Enquiry Centre at the Family Court also forwarded the email received by the Father’s daughter to my Associate at approximately 10.05am on 9 February 2010.
On 9 February 2010 when the matter came before me there was no appearance by or on behalf of the Father. The Child Support Registrar sought that the hearing proceed. However, after providing some very brief reasons I made the following orders:
1.The hearing today be vacated.
2. The hearing of the appeal be listed before me on Friday 12 February 2010 at 11.00 am.
3. The Appellant Father pay the costs of the Child Support Registrar of and incidental to the appearance before me today.
4. It be noted that the Appellant Father will be forthwith advised of the orders made today and in particular the hearing on 12 February 2010 by communication to the telephone numbers and email address described in the facsimile transmission of 27 January 2010 received from the Father, and also by communication to [Ms M] at the email address identified in the email of 8 February 2010 received from her.
5. The Appellant Father produce to the Court at the hearing on 12 February 2010 referred to in the preceding orders certified copies of his passport and/or airline tickets and/or boarding passes evidencing his overseas travel described in his facsimile transmission of 27 January 2010.
On 11 February 2010 a letter was sent by the Father by facsimile to the Eastern Appeals Registry. It was forwarded to my Associate on the same day. In his letter the Father stated the following:
My name is [Mr Laurie]. I am the applicant/appellant in proceedings no EA119/2009.
I thank you for your email of 9 February 2010 and your phone call on 10 February 2010 (the day of my arrival back in Australia).
I note that you have provided an extension of time only to 12 February 2010.
I advise that this is completely unsatisfactory.
As stated previously, my solicitor, Mr George Potkonyak from Morgan Ardino & Co, has recently withdrawn his services. I also reiterate that this was as a result of a letter dated 14 December 2009 from the Australian Government Solicitor and in particular, Paragraph 6 of that letter.
I now need to obtain the documents from my then solicitor and then arrange to prepare the case for the hearing.
I also note that the substantive matter, that is EA85/2009, was previously heard by Justice O’Ryan on 8 October 2009. As such, it is considered that his Honour could now very well have pre-determined views. This is on the issues that are yet to be presented in this present matter viz. [sic] in EA119/2009.
Therefore I hereby request the following:
1.The hearing in EA119/2009 be adjourned by at least two (2) months.
2. Due to my lack of legal representation, that the matter in EA119/2009 be determined by written submissions only, that are yet to be presented
3. That Justice O’Ryan would exclude himself from being one of the presiding justices in matter EA119/2009.
I note that the Father’s email address, as well as his home address and fax number, were included on the coversheet of the letter.
On the same day, 11 February 2009, at approximately 12:11pm the Eastern Appeal Registry replied to the Father via email. It said the following:
I refer to your facsimile to us dated 11 February 2010 – a copy of which is attached.
As previously advised, any application for adjournment needs to be made either with the written consent of the other parties or by way of an application in an appeal and supporting affidavit.
Similarly, an application for the presiding judge to disqualify himself from hearing the matter should be made by way of an application in an appeal and supporting affidavit.
On 12 February 2009, my Associate made enquiries from chambers with the court officer regarding the appearances of the parties in court. My Associate was advised by the court officer that the Father had not arrived. Upon my request, my Associate then telephoned the Father from chambers and asked whether or not he was on his way to court. The Father replied that he was not attending court and that he had faxed a letter to the court, on the previous day, which included the orders he sought. My Associate notified the Father that the court had replied and the Father responded that he had not checked his email since sending the letter to the Appeals Registry by fax. My Associate then advised the Father that the court officer would shortly be calling the matter in court and that the court officer would telephone the Father from court in approximately five minutes. When the matter was called I was advised that both my Associate and the court officer had tried to telephone the Father by calling his mobile telephone number on two occasions but the Father did not answer.
The hearing commenced and when the matter was called there was no appearance by or on behalf of the Father. I then proceeded to hear the application by the Father for leave to appeal against the orders made by Federal Magistrate Sexton regarding costs.
At the hearing the Child Support Registrar handed up an affidavit of Ms Fusitu’a, solicitor at the AGS, affirmed 12 February 2010. Ms Fusitu’a deposed in her affidavit that:
Costs up to 9 February 2010
2. I have reviewed the time entered against this matter. The total value for disbursements and legal work done on this matter up to and including 9 February 2010 is $11,353.95.
Estimate of costs up to and including 12 February 2010
3. Based on an estimate that the hearing will go for 1 hour today, the total value for disbursements and legal work done on this matter up to and including the hearing on 12 February 2010 is estimated at $11,727.95.
The Child Support Registrar also tendered a detailed schedule of costs in relation to the appeal heard by me on 12 February 2010. The schedule was prepared “in accordance with Schedule 3 of the Family Court Rules 2004”.
GROUNDS OF APPEAL
On 12 October 2009, the Father filed a Notice of Appeal. His ‘grounds’ appear as follows:
1. Breach of Chapter III of the Constitution
The learned Magistrate erred in finding the Constitutional challenge to certain provisions of the Child Support (Assessment) Act 1998 that deal with the “earning capacity” of a payer, as advanced by the applicant (now appellant), as being without merit. Her honour quoted and interpreted correctly Gleeson CJ in Luton v Lessels (2002 210 CLR 333 at 21: “The making of decisions by the application of legal criteria to facts as found in characteristic, but not distinctive, of the judicial function.”
However, her Honour failed to grasp the gravamen of the argument, namely that, when it comes to the determinations by the Child Support Registrar based on the “earning capacity” of a payer, the Registrar is not applying law to facts but rather applying law to fiction: unproven allegations, assertions, insinuations, suspicions or even malicious statements. The Registrar is not capable of converting fiction into facts, since the Registrar is not required to make inquiries [s98(1)(b)] and, if an inquiry is made, the Registrar is not bound by the rules of evidence [s98H(4)].
By the provisions of s110 of the Act, as it stood in 2000, the aggrieved person could have appealed directly to the court and be heard de novo. However, every determination by the Registrar based on the “earning capacity” would be subject to a de novo hearing since it was not, and could not be, based on facts because the Registrar is not capable of establishing facts. Yet, the Registrar is given powers by s98C(3) as those given to a judicial officer by s117 of the Act. In exercising his or her judicial power a judicial officer is bound by the rules of evidence, while the Child Support Registrar (or his or her delegate), an administrative person, is purportedly authorised to make equally binding orders but without a regard to the rules of evidence. Every single decision by the Child Support Registrar is thus an error of law and amenable to a judicial review.The current version of the Act is even more onerous: it does not have a provision for an appeal to a court as of right but only on the grounds of the error of law. In other words, fiction as established by the Registrar gains a status of facts, that is, as bona fides evidence but without having regard to any rules of evidence.
2. Breach of s 51(xxxi) of the Constitution
A determination made in the above manner is a law for the acquisition of property other than on just terms. The word “just”, as used in s51(xxxi), means, inter alia, “according to law”. It not only alters the existing rights and obligations between the parties but also creates new rights and obligations through: (a) unlawful departure assessment of child support level; (b) legal costs to the aggrieved party; and (c) possible legal costs of the other party awarded against the aggrieved party (as is the case subject to this application).
3. Joinder of [Ms Filho] to the proceedings below as a second respondent was done without an application and through a private communication between [Ms Filho] and her counsel on one hand and her Honour Sexton FM or her Honour’s Associate on the other.
The Father seeks the following orders:
1. That the cost orders of Sexton FM, delivered 14 September 2009, be set aside.
2. That the joinder of [Ms Filho] as the ‘second respondent’ to the proceedings below be declared invalid.
3. That the issues raised by the grounds 1 and 2 above are determined in accordance with the provisions of section 78B of the Judiciary Act 1903.
4. That this appeal be joined to the appeal EA85/2009, if leave to appeal will be granted to both.
REASONS OF THE FEDERAL MAGISTRATE
The Federal Magistrate from [1] to [6] provided a brief introduction to her reasons. Her Honour noted at [3] that the Child Support Registrar relied on written and oral submissions and the Mother relied on an application in a case supported by affidavit filed on 4 September 2009 and on paragraphs 1 to 24 of the submissions of the Child Support Registrar. Her Honour also noted that the Father did not file any material in response to either costs application, however, the solicitor for the Father made oral submissions. Her Honour briefly recounted what was sought by the Child Support Registrar at [4] being “costs of the appeal and costs of the costs application calculated in accordance with Schedule 1 of the Federal Magistrate’s Court Rules 2001 in the amount of $18,238.56”; by the Mother at [5] being “costs in the amount of $1,804.00”; and notes at [6] that the Father “opposes both applications”.
The Federal Magistrate then at [7] to [9] discussed the “legal principles”. At the outset, her Honour states that, “[p]ursuant to s 100 of the Child Support (Assessment) Act 1989, the question of costs in child support proceedings is governed by the provisions of the Family Law Act 1975”. Her Honour refers to the “usual rule in family law proceedings” in accordance with s 117(1) of the Act and notes the exception at s 117(2), subject to s 117(2A). Her Honour then notes at [8] that the court must have regard to the matters identified at s 117(2A)(a) to (g) and recorded at [9] that the Child Support Registrar “relies on sub-sections (a), (c), (e) and (g) of s 117(2A) of the Act as reasons for the Court to exercise its discretion to make a costs order against the applicant and agrees that “these are the relevant subparagraphs to which the Court must have regard to in the circumstances of this case”.
The Federal Magistrate from [10] to [13] discusses the financial circumstances of the parties pursuant to s 117(2A)(a) of the Act. Her Honour notes at [10] that the Child Support Registrar is a federal government agency funded by the taxpayers of Australia, at [11] that the Mother adduced no evidence as to her financial circumstances and at [12] that the Father also adduced no evidence as to his financial circumstances. Her Honour said that the solicitor for the Father “asserts from the Bar Table that [the Father] ‘has no assets’ [but] does not refer to any affidavit evidence or any other material in support of this assertion.” Her Honour concludes at [13] that: “I am unable to make findings as to either [the Father’s] financial position or as to [the Mother’s] financial position. I have therefore no regard to either party’s financial position in determining these costs applications”.
From [14] to [16] the Federal Magistrate discussed the conduct of the parties pursuant to s 117(2A)(c) of the Act. Her Honour noted at [14] the submissions by the Child Support Registrar that there are a number of factors to which the Court should have regard in relation to the Father’s conduct, namely, the Father’s delay in the proceedings being finalised; his failure to comply with court orders and rules; and the Father’s improper conduct in prosecuting the appeals. Her Honour said at [15] that the Father’s solicitor “made no submissions in relation to conduct issues” and concluded at [16] that she agreed wholly with the submissions of the Child Support Registrar under this factor. Regarding the question of delay her Honour further added that she had taken into account the Father’s “decision to apply for a lay advocate to appear for him, shortly prior to the date set down for hearing, in circumstances when [Mr Laurie] had abandoned his opportunity to apply for a Mackenzie friend to assist him”.
At [17] the Federal Magistrate briefly discussed whether the applicant was wholly unsuccessful pursuant to s 117(2A)(e) of the Act. Her Honour noted that “the Court had found no merit in the constitutional issues raised by [Mr Laurie] and [that Mr Laurie’s] appeal against the decision of the SSAT was dismissed”. Her Honour, thus, concluded that the Father was wholly unsuccessful in the proceedings.
The Federal Magistrate then turned to discuss from [18] to [21] “any other relevant matter” pursuant to s 117(2A)(g) of the Act. Her Honour accepted the further submissions of the Child Support Registrar that at [18] the Father had raised constitutional issues that had already been “addressed and determined” by the High Court and at [19] the Father had “effectively abandoned” his grounds of appeal as set out in his notice of appeal. The Federal Magistrate at [20] also had regard to the fact that the solicitor for the Father made no submissions on the factors outlined in s 117(2A) in relation to either the Child Support Registrar or the Mother’s application for costs, and, at [21] that the submissions made on behalf of the Father were “confused”.
At [22] the Federal Magistrate then set out her “Decision”. Her Honour, having regard to the matters under subparagraphs (c), (e) and (g) of s 117(2A) of the Act, found it “appropriate in the circumstances of this case to make an order for costs in favour of the Child Support Registrar [and the Mother]”. Her Honour also found it appropriate to make an order for costs of the costs application in favour of the Child Support Registrar since the solicitor for the Father “did not challenge the submissions made by the Registrar in relation to the s 117(2A) factors”.
The Federal Magistrate then sets out from [23] to [29] the quantum of costs to be awarded to the Child Support Registrar. At [23] the Federal Magistrate notes that in accordance with Schedule 1 of the Federal Magistrate Court Rules the Child Support Registrar sought costs in the sum of $18,238.56 in costs for the substantive proceedings and costs of the costs proceedings, which includes $128.56 for disbursements. Her Honour then set out Rule 21.10 of the Federal Magistrate Court Rules which states that unless a court otherwise orders, a party entitled to costs in a proceeding is entitled to costs in accordance with Part 1 of Schedule 1 and disbursements properly incurred.
Her Honour then said at [25] that the Child Support Registrar applied the Schedule in relation to costs being sought, as amended by the Federal Magistrate’s Court Amendment Rules 2001 but did not have regard to the fact that the changes made to the schedule took effect from the day after registration, being 7 April 2009. Her Honour noted at [26] that the Child Support Registrar submitted that the “latest change to Schedule 1 should be applied retrospectively” but rejected the submission since the amending rules do not make “specific provision for retrospective application.” Her Honour then set out at [27] a table of the Child Support Registrar’s costs in accordance with Schedule 1. Her Honour then noted at [28] that the “question of quantum of costs is discretionary” and said that she excluded costs listed for the event of 10 July 2009, for taking judgment and travel costs. Her Honour then concluded at [29] that having regard to her findings regarding the Father’s conduct in the proceedings and the reasonable total of costs set out at [27] she proposed to make an order for a sum in favour of the Child Support Registrar.
From [30] to [31] the Federal Magistrate discussed the quantum of costs to be awarded to the Mother. At [30] her Honour further notes that the Mother claims an amount of $1,804.00. Her Honour notes that in her affidavit in support of her application, affirmed 3 September 2009, the Mother deposes to having incurred fees for Counsel to appear on her behalf on 25 and 28 November 2008, however, does not provide a copy of any invoice to verify this figure as her counsel’s fees. Her Honour concludes by awarding the Mother the sum of $1,330.00 in accordance to Schedule 1 of the Federal Magistrate Court Rules 2001.
At [31] the Federal Magistrate considered the order sought by the Child Support Registrar and the Mother that any costs be paid by the Father within one month. However, her Honour concluded by allowing the Father two calendar months to pay the costs from the date of the orders.
APPLICATION TO ADDUCE FURTHER EVIDENCE
General
On 3 February 2010 the Child Support Registrar filed an application to adduce further evidence. An affidavit was affirmed in support by Ms Fusitu’a.
The affidavit of Ms Fusitu’a gives an account of emails sent on 2 December 2008 between the Child Support Registrar; Mr Maurice, counsel for the Mother in proceedings before Federal Magistrate Sexton; and the Associate to Federal Magistrate Sexton, regarding the addition of the Mother as a second respondent to proceedings before Federal Magistrate Sexton. The Child Support Registrar seeks leave to tender copies of such emails for the sake of “completeness”.
Ms Fusitu’a also includes in her affidavit a copy of the Father’s High Court special leave application; his Notice of a Constitutional Matter; and draft and amended summary’s of argument before the High Court and amended reply to the Child Support Registrar’s summary of argument. As noted before, the Child Support Registrar seeks leave to tender these documents to demonstrate that the proceedings brought in the High Court seek to re-agitate issues which are currently before the Court in these proceedings.
In my reasons for judgment of 12 October 2009, I dealt with an issue raised by the solicitor for the Father that there had been a “conspiracy” between the Mother and Sexton FM regarding email communications: see [24] to [35] and [112]. In the Father’s third ground of appeal for this appeal he seeks to re-agitate this issue of a “conspiracy” between the Mother and Sexton FM that I have already dealt with in my reasons for judgment dated 12 October 2009.
Conclusion
In the circumstances, so far as they are relevant given that it is an application for leave to appeal, I am not going to set out the settled relevant principles to be applied in determining the application. However, I will have regard to
s 93A(2) of the Act, r 22.39 of the Rules and the reasons of McHugh, Gummow and Callinan JJ in CDJ v VAJ (No. 1) (1998) 197 CLR 172 particularly at [104] to [116].
I am going to admit the further evidence.
RELEVANT LEGAL PRINCIPLES
Leave to appeal
Section 107A(1) of the Collection Act relevantly states that leave to appeal is required in appeals which relate to child support matters. Section 107A(1) provides:
(1) An appeal lies, with the leave of the Family Court, to the Family Court from:
(a) a decree of the Federal Magistrates Court exercising original jurisdiction under this Act; or
….
(5) On an appeal under subsection (1) or (1A), the Family Court may affirm, reverse or vary the decree or decision the subject of the appeal and may make such decree or decision as, in the opinion of the court, ought to have been made in the first instance, or may, if it considers appropriate, order a re‑hearing, on such terms and conditions (if any) as it considers appropriate.
Costs
Section 117(1) of the Act provides that “[s]ubject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.”
Section 117(2) of the Act provides that if, in proceedings under the Act the court is of opinion that there are circumstances that justify it in doing so, it may, subject to sub secs (2A), (4) and (5) and the applicable rules, make such order as to costs whether by way of interlocutory order or otherwise, as it considers just.
Section 117(2A) of the Act provides that in considering what order (if any) should be made under s 117(2), the court shall have regard to the matters set out in paragraphs (a) to (g).
I also have regard to what was said by the Full Court Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 per Kay, Warnick and Boland JJ at 130 and Penfold v Penfold (1980) 144 CLR 311 per Stephen, Mason, Aicken and Wilson JJ at 315-16.
Notwithstanding the very detailed background I have given above, I have regard to what was said by Martin CJ in O'Rourke v P & B Corporation Pty Ltd [2008] WASC 36 (S) (unreported, Martin CJ, 14 March 2008).
[6] I think it is important that a robust approach be taken to the resolution of costs issues of this kind and that the practice of making elaborate and detailed submissions with respect to costs, supported by elaborate and detailed evidence and oral argument, should be actively discouraged by the court. With that in mind, the reasons that I will give in relation to these applications will be brief.
As to the amount of costs I have regard to Part 19 of the Rules and in particular r 19.08 and r 19.18. As to indemnity costs, I have regard to Colgate-Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248 per Sheppard J at 256-257 and various other authorities such as Kohan and Kohan (1993) FLC 92-340 (per Strauss, Lindenmayer and Bulley JJ) and Yunghanns v Yunghanns (2000) FLC 93-029 (per Lindenmayer and Holden JJ with Mullane J dissenting).
CONCLUSION
The Father had every opportunity to participate in the hearing before me on 12 February 2010 and prosecute his application and he chose not do so. Thus, the application will be dismissed.
However, I am of the view that even if the Father had appeared, and subject to anything further which he might have adduced, I would dismiss his application. So also if leave had been granted I would have dismissed the appeal.
Federal Magistrate Sexton observed that the Father made no submissions in relation to the factors in s 117(2A) of the Act in relation to either the Child Support Registrar or Mother’s application for costs, and, at [21] that the submissions made on behalf of the Father were “confused”.
So also it is the situation with the present proceedings before me. It is apparent from the material that the Father has failed to address any of the matters relevant to the exercise of discretion in granting leave to appeal. It is also apparent from the proposed notice of appeal that the Father failed to address any of the matters relevant to the exercise of discretion pursuant to s 117 to make an order for costs. The Father failed to address any possible errors by the Federal Magistrate in relation to her exercise of the discretion.
I also accept the submission that what the Father is seeking to do is re-agitate in these costs proceedings the alleged constitutional issues that were previously dealt with by the Federal Magistrate in the substantive proceedings, and, are currently a foundation for the application for special leave to appeal against my refusal to reinstate the Father’s appeal. It was described as a “collateral challenge to the principal judgement” of the Federal Magistrate. I agree with the submissions made on behalf of the Child Support Registrar that the current proceedings are an abuse of process for the reasons submitted.
COSTS
The Child Support Registrar seeks an order that the Father pay the costs of the current proceedings. The amount sought is $3,638.20. I was provided with a schedule showing how that amount is made up.
I refer to the written submissions made on behalf of the Child Support Registrar in relation to costs of the current proceedings and agree with and adopt what was submitted. The Child Support Registrar has established a justifying circumstance.
As to the amount of costs sought, again, I refer to the written submissions made on behalf of the Child Support Registrar in relation to indemnity costs and agree with and adopt what was submitted.
I certify that the preceding one-hundred and thirty-six (136) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Ryan.
Associate:
Date: 11 March 2010
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