MASSEY & CHILD SUPPORT REGISTRAR
[2011] FamCAFC 79
•8 April 2011
FAMILY COURT OF AUSTRALIA
| MASSEY & CHILD SUPPORT REGISTRAR | [2011] FamCAFC 79 |
| FAMILY LAW - APPEAL – PRACTICE AND PROCEDURE – Where the trial Judge set enforcement summons down for final hearing – Application for leave to appeal – No merit in appeal – Leave refused. FAMILY LAW - APPEAL – APPLICATION IN AN APPEAL – Application to adduce further evidence – Application refused. FAMILY LAW - COSTS – Appellant ordered to pay the respondent’s costs. |
| Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc. (1981) 148 CLR 170 Allesch v Maunz (2000) 203 CLR 172 CDJ v VAJ (1998) 197 CLR 172 |
| Child Support (Registration and Collection) Act1988 (Cth) Family Law Act 1975 (Cth) |
| APPELLANT: | Mr Massey |
| RESPONDENT: | Child Support Registrar |
| FILE NUMBER: | MLC | 3254 | of | 2010 |
| APPEAL NUMBER: | EA | 112 | of | 2010 |
| DATE DELIVERED: | 8 April 2011 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 24 February 2011 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 3 August 2010 |
| LOWER COURT MNC: | [2010] FMCAfam 1061 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Kaplan |
| SOLICITOR FOR THE RESPONDENT: | DLA Phillips Fox |
Orders
The application to adduce further evidence is dismissed.
The application for leave to appeal against the order of Federal Magistrate Scarlett dated 3 August 2010 is dismissed.
The appellant is to pay the respondent’s costs of and incidental to the appeal.
IT IS NOTED that publication of this judgment under the pseudonym Massey & Child Support Registrar is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 112 of 2010
File Number: MLC 3254 of 2010
| Mr Massey |
Appellant
And
| Child Support Registrar |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Massey (“the appellant”) appeals against an order of Federal Magistrate Scarlett dated 3 August 2010 which listed for hearing an application brought by the Child Support Registrar (“the respondent”) against the appellant.
The matter before the Federal Magistrate appears to have been an application by the respondent to enforce an amount of child support said to be owed by the appellant pursuant to the Child Support (Registration and Collection) Act 1988 (Cth).
On 3 August 2010 the matter came before Federal Magistrate Scarlett who, over the objection of the appellant, fixed the matter for final hearing on 23 November 2010.
It is against this order that the appellant seeks leave to appeal and he also seeks leave to adduce further evidence on the appeal.
The appellant appeared for himself and prepared the grounds of appeal and submissions. They are somewhat discursive and I attempt here to set out, as far as I can, the background to the matter discerned from those documents.
Background
The dispute between the appellant and respondent seems to be long standing. The appellant asserts that the respondent has acted wrongfully in the assessment, calculation and pursuit of child support arrears. The appellant claims that there are errors in the calculation of his child support obligations from time to time and, on a final hearing of the application he will demonstrate the asserted errors. He also proposes to seek damages against the respondent. The appellant makes other assertions that do not appear to me to be particularly germane to the matter at hand.
The thrust of the appellant’s objection to fixing the date for final hearing of the application was that he had insufficient time in which to inspect documents produced under subpoena and inspect certain court files and, as a result, he would be prejudiced in the conduct of the hearing.
On 12 October 2010 the appellant obtained a stay of the Federal Magistrate’s order pending the resolution of the appeal with the result that the date of 23 November 2010 was vacated. No further date has been fixed for hearing of the application. I will return to this issue later.
Before the hearing of the appeal, the appellant made an application for leave to introduce further evidence to be considered on the appeal.
Reasons for decision
The reasons of Federal Magistrate Scarlett are brief. I set them out in full.
1.This is a summons by the Child Support Registrar against the respondent to enforce the payment of an amount of child support said to be outstanding. The summons is opposed by the respondent.
2.The solicitor for the applicant seeks that the matter be set down for final hearing before the Court.
3The respondent told the Court that he was proposing to travel to Perth to stay with friends so that he could prepare, or continue, a class action which he proposes to bring. He informed the Court that he was not asking for this matter to be transferred to Perth.
4.The respondent told the Court that he was seeking to obtain legal representation for the class action and he was seeking to have this matter joined to the class action. When I indicated that I could not see any legal basis for that step, the respondent submitted that this was a matter for another court, being the court that would hear the class action.
5.The respondent told the Court that there was a serious matter of property related to this case. He said that there were five properties, and that there had been no settlement to date in respect of any of them. Further, a part of his argument would be that the funds that were available from the sale of those properties are a monetary contribution.
6.Ms Weston, who appeared for the applicant, estimated that the matter could be heard in a day, and sought a hearing date prior to 3rd December 2010, in order to meet the availability of senior counsel who has been briefed to appear.
7.I indicated that the 23rd November 2010 would be available.
8.The respondent told the Court that he had no other commitment on that date. However, he raised a concern about access to relevant court files. He said that there were three in all, but he had only been able to have access to one of them, as the other two appeared to be missing. I noted that the respondent sought to inspect all previous court files in this matter.
9.The application was listed for final hearing at 10:00 am on Tuesday 23rd November 2010. The time for compliance with any unmet subpoena was extended to 1st October 2010.
It is against this background that I turn to consider the grounds of appeal and the basis on which leave to appeal is sought. It is to be observed that the reference in the grounds to the “respondent” is a reference to the appellant.
Leave to Appeal
The following appears at paragraph 6 of the Notice of Appeal under the heading Part C Leave to Appeal:
1.FM Scarlett has ordered a date for the Final Hearing in this matter without ensuring the process of discovery has been completed. The omissions in the discovery process include:
·The Respondent has not been given access to the relevant Case Files.
·The applicant has failed to produce any documents other than a statement of debt in response to the Respondents subpoena, despite outstanding orders to do so;
·The Respondent hasn’t been given the opportunity to serve subpoenas based on new evidence before him.
2.The date set for the Final Hearing does not take into account the substantial body of evidence and documents to be reviewed by the Respondent and the Respondent’s recent permanent eye injury and blindness which affects his ability to examine the subject material.
Leave to adduce further evidence
On 18 January 2011 the appellant filed an Application in an Appeal in which he sought leave to adduce further evidence on the appeal being an affidavit sworn by him on 14 January 2011. The application was opposed. Counsel for the respondent submitted that the proposed new evidence, while in affidavit form, amounted to further submissions, not evidence.
The appellant was content for the affidavit to be regarded as further submissions.
In any event, had he not made that concession, the authorities concerning further evidence on appeal are clear.
In CDJ v VAJ [1998] 197 CLR 172, the High Court considered this issue. At paragraph 149 McHugh, Gummow and Callinan JJ said in referring to the purpose for the reception of further evidence on appeal:
… the relevant purpose of s93A(2) is to facilitate the correction of an error where that error has probably occurred because the further evidence was not before the primary judge. Because that is so, the proper exercise of the discretion in the circumstances of this case required the Full Court to be affirmatively satisfied of two things. The first was that, given the findings of the trial judge, the further evidence if tendered before him was likely to have produced a different result. It was not enough that the Full Court thought that, upon the whole of the evidence including the further evidence, another judge might make a different order …
The proposed evidence does not fall within the ambit of that described by the High Court and I therefore would not have given leave to the appellant to adduce further evidence on the appeal.
However, given the concession of the appellant, I have taken it into account as a submission to the extent that it does not otherwise repeat submissions already made and is relevant to the issue, namely whether the Federal Magistrate erred in law in setting the matter down for hearing.
It needs to be observed that there was no transcript of what occurred before the Federal Magistrate although the procedural orders for the preparation of the appeal included an order that the appellant provide a copy of the transcript. When the matter came to be heard the appellant indicated that, as he had foreshadowed, he was unable to afford the cost of the transcript. The appellant asserted that the respondent had “frozen” some of his bank accounts and, if I were to make an order requiring the respondent to release the accounts, the appellant may be in a position to provide the transcript. I indicated to the appellant that it was not for me to make orders of that nature. I must therefore deal with this appeal without the benefit of the transcript of 3 August 2010.
Grounds of Appeal
The grounds of appeal as articulated by the appellant in the Notice of Appeal filed on 18 August 2010 are as follows:
1.FM Scarlett has ordered a Final Hearing date of 23rd November 2010 without ensuring the Respondent has access to, or time to review, the Registry Case Files and other discovery evidence on or before that date.
2.The respondent advised FM Scarlett on 3rd August 2010 that the Goulburn St Registry has “lost” files relevant to this case. The respondent sought orders at that hearing that the files should be made available as soon as possible. FM Scarlett failed to make the order requested and to order sufficient time for the files to be located and reviewed by the respondent. This omission will likely lead to a miscarriage of justice.
3.The respondent advised FM Scarlett at the hearing on the 6th July 2010 that the Applicant is continuing to refuse to produce the documents required for discovery as ordered on 19th June 2006 by Magistrate Eve Wynhausen at the Local Court (Family Matters) (Refer to Order 3). FM Scarlett has set the date for the Final Hearing at the request of the Applicant without consideration of the Respondent’s request to him for enforcement of these orders of Magistrate Wynhausen. The Respondent is unable to prepare his case for the Final Hearing without access to the discovery documents. To proceed to a Final Hearing without the Respondent having the opportunity to examine the evidence constitutes an error of judgment by FM Scarlett, potentially leading to a miscarriage of justice.
4.On 6th July 2010 the respondent advised FM Scarlett, in a written statement handed up to the Court, of new evidence before him that links the Applicant’s legal representatives with information concerning this case leaked from the Family Court of Australia. The Respondent sought leave of the Court to serve subpoenas on the Applicant’s lawyers to determine the nature and extent of the leaked information, however, FM Scarlett has failed to acknowledge this application by the Respondent. FM Scarlett’s failure to acknowledge these changed circumstances may likely lead to a miscarriage of justice.
It should be noted, that, although the appellant referred to proceedings on 6 July 2010 before Federal Magistrate Scarlett, there was little in the material filed by him on the appeal that assists in understanding the relevance of what occurred on that day to the substance of the appeal. In the appellant’s documents filed on the appeal was a document entitled ‘Statement by the Respondent concerning the Notice of Objection re Production of documents [S] Australia Pty Ltd’. This document was seemingly produced to the court on 6 July 2010 by way of submissions.
The respondent’s submissions give background to the instant appeal, and from those I have also gleaned some understanding of the history of this matter. However, it is to be noted that my reference to the matters contained in that document is not an acceptance of any contested facts or controversies but is simply an attempt to place in context the orders made by Federal Magistrate Scarlett on 3 August 2010.
In April 2010 the respondent issued two subpoenas requiring two companies, said to be associated with the appellant, to produce documents. No documents were produced. On 7 May 2010 the appellant filed a notice objecting to the subpoena in respect of one of those companies. The Notice of Objection was listed before Federal Magistrate Scarlett on 7 June 2010. The appellant did not appear. On that date orders were made that the appellant file and serve affidavits in support of the objection and the matter was listed for mention on 6 July 2010.
On 6 July 2010 the appellant appeared, the Notice of Objection filed by him was dismissed and other orders were made. It was at this mention, according to the respondent’s submissions, that the appellant raised the failure of the respondent to comply with orders for discovery apparently made by Magistrate Wynhausen on 19 June 2006. According to the respondent’s submissions, the Federal Magistrate observed that there was no record of that order being made and further, that the order, had it been made, was in relation to separate enforcement proceedings against the appellant.
Leave to appeal
The principles relevant to applications for leave to appeal against interlocutory orders are well known. An applicant seeking leave to appeal must demonstrate that there has been an error of principle and/or a substantial injustice to one of the parties: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc. (1981) 148 CLR 170.
The remarks of the High Court in this case are particularly apposite (at p 177):
Nor is there any serious dispute between the parties that appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure. Counsel for Brown urged that specific cumulative bars operate to guide appellate courts in the discharge of that task. Not only must there be error of principle, but the decision appealed from must work a substantial injustice to one of the parties …
In the circumstances of this case the appellant has been unable to demonstrate a substantial injustice would occur if leave were not granted. Nor, as will appear from a consideration of the merits of the appeal, has he been able to demonstrate an error of principle.
Merits of the appeal
It is clear that any prejudice to the appellant because of the decision of the Federal Magistrate to set a final hearing date in the respondent’s application, has now disappeared.
Grounds 1 and 2 of the intended appeal grounds appear to argue that in deciding to list the matter for hearing in November 2010, the Federal Magistrate denied the appellant natural justice. For the purposes of this discussion I accept that the appellant did make the objections to the setting of the date that he outlined in his various submissions, albeit there is no mention of them in his Honour’s reasons.
It is pertinent to outline the principles pertaining to natural justice and procedural fairness as they relate to this appeal. In Allesch v Maunz (2000) 203 CLR 172 Kirby J said:
[35] It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as “an indispensable requirement of justice”. It is a rule of natural justice or “procedural fairness” … [footnotes omitted]
The decision to fix the matter for hearing was not one that required solely the consideration of whether the appellant was ready to proceed. His Honour’s reasons demonstrate a consideration of submissions made to him by the appellant and he noted the appellant’s concern that some court files had not been inspected. His Honour made an order extending the time for compliance with any unmet subpoena to 1 October 2010.
That the appellant did not believe himself to be ready to proceed to the hearing is not the sole determinant of whether he has been denied natural justice.
The appellant has not demonstrated that he was denied procedural fairness in the decision to list the matter for hearing.
These grounds are not made out.
Ground 3 refers to an order for discovery that the appellant asserts was made by another Magistrate in June 2006 and to which he referred Federal Magistrate Scarlett on 6 July 2010. There is nothing in the material before me on the appeal to indicate this matter was agitated before the Federal Magistrate on 3 August 2010 when the matter was to be fixed for hearing, or the nature or relevance of the material sought under such discovery order. The obligation is on the appellant to support the grounds of appeal. He has not done so. This ground of challenge is not made out.
Ground 4 alleges error in the Federal Magistrate not acting on the appellant’s contention and that, in some unspecified way, the respondent’s solicitors had “leaked information” about the proceedings.
The basis for the asserted error is found in the appellant’s submissions to the Federal Magistrate of July 2010 (although there is no transcript of those proceedings before me). In that document (entitled ‘Statement by the Respondent concerning the Notice of Objection re Production of documents [S] Australia Pty Limited’) the appellant says:
31.Further, I have very recently become aware of inappropriate communications concerning this case occurring between a very influential public figure and the firm of solicitors now representing the CSA.
32.I understand the purpose of these communications could be construed as an attempt to pervert the course of justice and the outcome of this case.
33.As such, this information would appear to disqualify the solicitors for the CSA from this case.
34.Should this court rule the CSA’s present legal representatives be allowed [sic] continue representing the plaintiff in this matter, I respectfully request this court to:
a) Facilitate the issue [sic] a subpoena on the CSA’s legal representatives demanding the production of copies and transcripts of all communications between any member of their firm (past and present) and any third party not directly involved in this case.
b) Order the CSA’s legal representatives to not do anything to destroy, archive or otherwise dispose of any communications including personal diary notes, telephone recordings, file notes, letters, e-mails, voice-mails and all other correspondences concerning this case with all third parties not directly concerned with this case, including Members of Parliament, the Australian Federal Police and their agents, members of the Federal Magistrates Court and members of the Family Court of Australia.
If this submission is the basis for the appellant’s assertion that he “sought leave of the Court to serve subpoenas” on the respondent’s legal representatives on 3 August 2010 or indeed even on 6 July 2010, it falls far short. The submission is not couched as a request but as a foreshadowed request. In any event, even if the appellant had made that request to the Federal Magistrate, it was incumbent on him to demonstrate that the Federal Magistrate fell into appealable error in failing to give leave to serve the subpoena. He has not, and accordingly this ground fails.
For all of the reasons I have set out, there is no merit in the appeal and leave should not therefore be granted to the appellant to bring the appeal.
Costs
As is customary, I sought submissions from both parties on the question of costs at the conclusion of the hearing. The appellant argued that should he be unsuccessful each party should pay its own costs. The respondent sought an order for its costs of the appeal hearing and of other appearances.
On 24 February 2011 (at p 8 of the transcript), the following exchange took place after I asked the appellant:
… What is the point of me determining that, whether or not, on 3 August, his Honour erred in law in setting the matter down for hearing on 23 November when time has gone?
The appellant replied:
… Yes, I agree that the date has, in fact, come and gone, but the question now remains as to whether or not in lodging an appeal whether I was doing that just for trivial reasons, just to delay, you know, protract, be difficult, etcetera, or whether, in fact, I was actually seeking genuine additional information.
On further enquiry about the utility of the appeal, the appellant said:
… but there would be a matter of costs as well, I would think. In other words, if I had not moved to serve the additional subpoenas and seek the additional information, taking advantage of the extra time that has now been created, then it could be argued that I was being trivial and, you know, wasting the court’s time protracting, your Honour.
Much of the material filed by the appellant on the appeal related to steps that he had taken to complete his preparation for the hearing of the respondent’s application since the appeal had been filed.
This appeal was brought alleging that the Federal Magistrate denied the appellant procedural fairness in setting the matter down for hearing over his objections. I have found that the appeal was entirely without merit even before the hearing date was stayed. Once that occurred and the hearing date vacated, the appeal was entirely pointless. That the appellant has been able to make some progress in his preparation in the time that has since elapsed is not relevant to the question of costs.
It is appropriate that the appellant be ordered to pay the respondent’s costs of and incidental to the appeal.
I certify that the preceding forty six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 8 April 2011.
Legal Associate:
Date: 8 April 2011
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