LEIGH & WATSON and CHILD SUPPORT REGISTRAR - [2012] FMCAfam 693

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LEIGH & WATSON and CHILD SUPPORT REGISTRAR

[2012] FMCAfam 693

CHILD SUPPORT – Issue estoppel.

Federal Magistrates Court Rules 2001 (Cth), r.21.02(1)(b)

Henderson v. Henderson (1843) 3 Hare 100; 67 ER 313
Steen v Black (2000) FLC 93-005

Applicant:

MR LEIGH

First Respondent:

MS WATSON

Second Respondent:

CHILD SUPPORT REGISTRAR

File Number:

HBC 431 of 2007

Judgment of:

Roberts FM

Hearing date:

21 May 2012

Date of Last Submission:

21 May 2012

Delivered at:

Launceston

Delivered on:

21 May 2012

REPRESENTATION

Counsel for the Applicant:

In person

Solicitors for the Applicant:

Not applicable

Counsel for the First Respondent:

No appearance

Solicitors for the First Respondent:

No appearance

Counsel for the Second Respondent:

Mr D Wilson

Solicitors for the Second Respondent:

Australian Government Solicitor

ORDERS

That the Application filed 23 January 2012 and the Application in a Case filed 26 April 2012 are dismissed.
That the Application for costs made on behalf of the Child Support Registrar in relation to the Applications dismissed today is adjourned for mention in Launceston on 25 July 2012 at 9.30 a.m. with leave granted to all parties to appear by telephone.

IT IS NOTED that publication of this judgment under the pseudonym Leigh & Watson and Child Support Registrar is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT LAUNCESTON

HBC 431 of 2007

MR LEIGH

Applicant

And

MS WATSON

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

I have two applications before me.
The first is an application filed by Mr Leigh on 23 January 2012. In that application he seeks either departure orders or the Court’s leave for the Registrar to vary assessments for periods which start on 1 July 2005 and conclude on 30 June 2009. He relates it to the financial years in that period. He also seeks an order setting costs aside.
Mr Leigh then filed an Application in a Case on 26 April 2012. The orders sought were:
(1) Remit previous orders for costs – to be set aside.
(2) CSA pay all costs from December 2008.
(3) Review previous orders.
He supported that Application in a Case with an affidavit. His earlier application was also supported with a lengthy affidavit.
I propose to deal firstly with the costs orders sought by Mr Leigh. I think he has accepted that I cannot deal with the order for costs that I made back in 2008 because those orders were appealed. The appeal was unsuccessful and indeed an order was made for costs against him. The details of it are set out in Mr Wilson’s submissions on behalf of the Child Support Registrar at paragraph 12 and I do not think I need deal with that. I do not need to say anymore about that because, as I understand it, Mr Leigh accepted that. As I have put it to him, Mr Leigh’s next step is to make an application to the High Court to appeal out of time, and I wished him luck with that.
Mr Leigh then seeks an order in relation to costs, as I understand it, being costs of the proceedings that were commenced in 2010. I made a decision on 10 February 2011 in those proceedings, and my settled reasons were issued on 21 March 2011. That was an occasion when Mr Leigh did not appear. He then applied for leave to appeal and, although he did not succeed, that was on the basis that he would come back to me on the primary issue of a denial of natural justice, to set aside the orders. He did that. At that time he was not represented by a lawyer and I gave a decision on 5 November 2011.
As I have pointed out to Mr Leigh, neither the application that he filed, nor the amended application that was filed on his behalf by his then solicitor, David Walker, sought any order for costs. On the date that I handed down my decision he sought no order for costs. The usual rule in relation to costs is that if there is to be an application for costs arising out of an order it must be made within 28 days of the decision.[1] Mr Leigh did not seek any such order within 28 days of the decision.
[1] Rule 21.02(1)(b) of the Federal Magistrates Court Rules 2001
In any event, he is seeking costs against the Child Support Registrar, and Mr Wilson is quite correct that there is no facility for me to make orders against somebody who was not a party to the proceedings. If Mr Leigh had thought that there was some just cause for seeking orders for costs against the Child Support Registrar in relation to those proceedings, he should have joined the Child Support Registrar as a party to those proceedings and allowed the Child Support Registrar to deal with that at that time. Indeed, almost the opposite was done. The Child Support Registrar was wrongly named as a party to the proceedings in the initiating application and that was changed in the amended application.
There are just no grounds for me to order costs against the Child Support Registrar in relation to the decision that I handed down in November 2011.
Mr Leigh seeks what seems to me to be a vague order that the Child Support Registrar should generally meet his costs up to the end of 2011, and I think I have dealt with the fact that no such applications were made at that time.
I will deal with any applications for costs in relation to Mr Leigh’s recent applications in due course.
So I now turn to the application which is essentially an application to vary the rate of child support payable by Mr Leigh for the periods to which I have already referred.
It was pointed out, and appeared to be accepted by Mr Leigh, that from 1 September 2007 onwards Mr Leigh had been assessed at the minimum rate so any variation of his child support income would not affect it in any event. So what Mr Leigh is really seeking are orders with respect to the period 1 July 2005 through to 31 August 2007; a period of two years and two months.
In essence, Mr Leigh says those assessments are wrong. He has a number of reasons why he says those assessments are wrong. Primarily, he says they are wrong because they are based on the wrong income. However, he also seeks to include another child for whom he says he is paying maintenance, and therefore that should affect the percentage calculation.
I do not propose to go into Mr Leigh’s arguments to any great extent, because what is important is that Mr Leigh could have made his application in relation to those periods when he filed his application on 23 July 2010 and subsequently amended. The point is that Mr Leigh could have made his application in 2010 to deal with the periods that he refers to in the application filed in this court on 23 January 2012.
Although Mr Leigh has said on a number of occasions that he did not know or did not realise that the Child Support Agency worked on what he says are the wrong figures, it is my view that that is not relevant. The point is that Mr Leigh was given notice of the figures that were being used. He was given notice in the affidavit of Ms H of 4 November 2008 that was referred to. When he made his application in 2010, he confined it to periods that pre-dated the periods in relation to which he now seeks orders. However, it does not mean that he was prevented from seeking such orders in 2010; he and his lawyers confined his application in 2010 to only those earlier periods.
Mr Wilson says that Mr Leigh is therefore now estopped from proceeding with that application, and I agree.
Mr Wilson referred me to a number of decisions in his well thought out submissions and I thank him for that. I propose to refer to a few others. For example, there is the decision of O’Ryan J in Steen v Black,[2] where his Honour said:
[2] (2000) FLC 93-005
In Halsbury’s Laws of Australia the learned editors said at p 359,104, pa [190-165]:
“The doctrines of res judicata and issue estoppel have been extended to apply to matters which were not raised in the prior proceedings but which could and should have been raised. There will be an estoppel where the matter relied upon in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it there. The test of unreasonableness is to be preferred to one that considers whether it would be an abuse of process to raise the matter in the second action. It is insufficient that the matter could have been raised in the earlier proceedings; it must have been unreasonable not to have done so.”
In Steen v Black, O’Ryan J also referred to the 1843 English decision of Henderson v. Henderson.[3] In that decision Sir James Wigram VC had said:
… where a given matter becomes the subject of litigation in, and adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case.
[3] (1843) 3 Hare 100; 67 ER 313
Now, that seems to me to apply to this case completely. Mr Leigh could and should have brought his application in relation to those periods from 1 July 2005 right through to 2009 in his earlier proceedings, essentially because the assessments were available. He knew about them. He was informed of them and, if he says he was not informed of them, he was informed of them by the affidavits of Ms H that were provided in the previous proceedings. It may well be negligence, inadvertence or accident that resulted in him or his lawyers leaving them out. In my view, that is not now something he can rely upon to run his case a second time, so I am of the view that his application fails.
Mr Wilson sets out a number of other matters in his submissions. I am of the view that, because Mr Leigh is estopped from proceeding, I do not really need to consider those submissions. Further, because it is 5.45 p.m., I do not propose to go through those submissions other than to say that I accept those submissions to be correct.
I am therefore of the view that Mr Leigh’s applications filed on 23 January 2012 and 26 April 2012 should be dismissed.

(At approximately 5.45 p.m. the application for costs made on behalf of the Child Support Registrar was adjourned to 9.30 a.m. on 25 July 2012.)

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Roberts FM

Date: 13 July 2012