Oxgrove and Principal Member Social Security Appeals Tribunal and Anor
[2016] FCCA 1161
•17 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| OXGROVE & PRINCIPAL MEMBER SOCIAL SECURITY APPEALS TRIBUNAL & ANOR | [2016] FCCA 1161 |
| Catchwords: CHILD SUPPORT – ADMINISTRATIVE LAW – Social Security Appeals Tribunal – Direction to Produce Documents – whether Direction should be set aside – procedural fairness - jurisdictional error – denial of procedural fairness – whether failure to take relevant consideration into account – unreasonable – whether “Wednesbury unreasonableness” – jurisdiction – whether decision made without jurisdiction. |
| Legislation: Administrative Decisions (Judicial Review) Act 1977, ss.3, 5, 8, 16 Child Support (Registration and Collection) Act 1988 (Cth), ss.103K, 110B Tribunals Amalgamation Act 2015 (Cth) |
| Cases cited: Abebe v The Commonwealth (1999) 197 CLR 510; [1999] HCA 14 |
| Applicant: | MR OXGROVE |
| First Respondent: | PRINCIPAL MEMBER SOCIAL SECURITY APPEALS TRIBUNAL |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | SYC 3804 of 2015 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 7 July 2015 |
| Date of Last Submission: | 7 July 2015 |
| Delivered at: | Sydney |
| Delivered on: | 17 May 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Schonell SC |
| Solicitors for the Applicant: | York Law |
| First Respondent: | No appearance |
| Solicitor for the Second Respondent: | Mr Dennis |
| Solicitors for the Second Respondent: | Sparke Helmore |
ORDERS
The Direction to Produce Documents made by the First Respondent to the Applicant under section 103K of the Child Support (Registration and Collection) Act 1988 on 19 May 2015 is set aside.
Any Application for an Order for Costs must be made within 28 days from the date of this Order, supported by an affidavit setting out the amount of costs sought and the basis upon which those costs are claimed.
Any Response to an Application for Costs must be filed and any supporting affidavit must be filed and served within a further period of 14 days.
IT IS NOTED that publication of this judgment under the pseudonym Oxgrove & Principal Member Social Security Appeals Tribunal & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 3804 of 2015
| MR OXGROVE |
Applicant
And
| PRINCIPAL MEMBER SOCIAL SECURITY APPEALS TRIBUNAL |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an Application for judicial review of a decision of a delegate of the Principal Member of the Social Security Appeals Tribunal (SSAT) as it then was, now the Administrative Appeals Tribunal, to issue a Direction to Produce Documents to him. On 16th June 2015 I granted a stay in relation to compliance with the Direction.
The Order that the Applicant seeks now is that the Direction should be set aside.
Orders Sought
The Applicant filed an Initiating Application on 15th June 2015 seeking an urgent listing of the Application and interim Orders:
2. That there be a stay in respect of Mr Oxgrove having to comply with the Directions to Produce Documents issued by the Social Security Appeals Tribunal (“SSAT”) on 19 May 2015.
3. That the Directions to Produce Documents issued by the Social Security Appeals Tribunal (“SSAT”) on 19 May 2015 be set aside.
4. Costs
The Application seeks a final order setting aside the Direction in the same terms as the above interim Order.
On 16th June 2015 I made certain Orders, most relevantly:
(2)The operation of a direction to Produce Documents made on 19 May 2015 by the First Respondent to the Applicant under section 103K of the Child Support (Registration and Collection) Act 1988 is stayed until Further Order.[1]
[1] Oxgrove & Principal Member Social Security Appeals Tribunal & Anor [2015] FCCA 1755
Evidence and Submissions
The Applicant relied on his affidavit of 12th June 2015 in which he deposed that:
a)the Direction to Produce Documents was issued to him for the purpose of a review before the SSAT in which the parties were his son, his former daughter in law, and the Child Support Registrar;
b)his son and former daughter in law are involved in Family Law proceedings in the Family Court as well as a child support matter;
c)his son is a discretionary beneficiary in the Oxgrove Family Trust, the Trustee of which is a company called (omitted) Pty Ltd;
d)he is the sole director and shareholder of (omitted) Pty Ltd;
e)he was informed that his former daughter in law had asserted that his son was a director or shareholder of several companies associated with him;
f)he denies that his son has ever been a director or shareholder in any of these companies;
g)all of the documents sought in the Direction to Produce are about his personal and financial affairs and not those of his son; and
h)he asserts that significant prejudice would flow to him if he were compelled to produce any documents.
Both the Applicant and the Second Respondent Child Support Registrar relied on written submissions. Mr Schonell of Senior Counsel for the Applicant and Mr Dennis, solicitor, for the Second Respondent, spoke briefly to their written submissions.
It was submitted that the Application is brought under section 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth).
Mr Schonell submitted that for an applicant to succeed in judicial review under the Act:
a)the Court must have jurisdiction;
b)the issue must be justiciable;
c)the applicant must have standing;
d)there must be a ground of review available;
e)the Court must have power to grant an appropriate remedy; and
f)legislation must not have precluded judicial review.
In respect of those requirements, it was submitted that:
a)The Court has jurisdiction under section 8 of the Act;
b)The issue is justiciable in that it relates to a decision of an administrative character made under an enactment (see s. 3(1));
c)The Applicant has standing as he is a “person aggrieved” whose “interests are adversely affected” by the decision (s.3(4));
d)The Court has power to grant an appropriate remedy under s.16 of the Act; and
e)There is no legislation that precludes judicial review of a decision made by the Principal Member of the SSAT.
It was further submitted that the following grounds of judicial review are available:
a)In refusing to allow the Applicant to be heard and to hear submissions and/or receive submissions in relation to the DPD issued on 19 May 2015, the Applicant was denied procedural fairness (Kioa v West[2]);
b)The making of the decision was an improper exercise of the power conferred by the enactment, namely s. 103K of the Child Support (Registration and Collection) Act 1988 (Cth);
c)In relation to the improper exercise of power the Principal Member of the SSAT failed to take into account relevant considerations, in particular that the documents are prima facie not relevant to the proceedings;
d)Again, the decision of the Principal Member was so unreasonable that no reasonable person could have so exercised the power (Associated Provincial Picture Houses Ltd v Wednesbury Corporation[3]; Prasad v Minister for Immigration and Ethnic Affairs[4] ); and
e)The Principal Member of the SSAT did not have jurisdiction to make the decision under s. 5(1)(c) of the Act.
[2] (1985) 159 CLR 550
[3] [1948] 1 KB 223
[4] (1985) 6 FCR 155
In support of the first ground, denial of procedural fairness, it was submitted that the Applicant, by being denied the opportunity to present submissions on why the documents should not be produced, was denied procedural fairness by the Principal Member. In Kioa v West, Mason J stated that the extent to which natural justice applies depends on the nature of the inquiry, the circumstances of the case and the rules under which the decision maker is acting. The privacy rights of the Applicant in relation to the documents, which are prima facie of limited probative value as they bear no relevance to the proceedings to which the Applicant is not a party, are sufficiently significant to enliven the doctrine of procedural fairness and therefore invite review under s. 5(1)(c) of the Act.
Further, it was submitted that whilst a breach of procedural fairness does not automatically invalidate a decision, it was held by the High Court in Re Refugee Review Tribunal; Ex parte Aala[5] that once a breach is proved a court should grant relief if it is confident that it would have affected the decision maker. In that case, the High Court also declared that it would exercise its discretion to grant relief if procedural unfairness deprived the person of the possibility of a successful outcome.
[5] (2000) 204 CLR 82; [2000] HCA 57
As to the second ground, it was submitted that the making of the decision was an improper exercise of the power conferred by the enactment as the Direction to Produce Documents can only establish the income or wealth of the Applicant and not the income or wealth of a party to the proceedings before the SSAT, as per s.5(1)(e) of the Administrative Decisions (Judicial Review) Act 1977. It was clear from the evidence that the parties involved in the SSAT proceedings do not have any interest in the Oxgrove Family Trust save and except that Mr Oxgrove is a discretionary beneficiary.
In respect of the third ground, the claimed failure to take into account relevant considerations, it was submitted that the Principal Member failed to take into account relevant considerations in that the documents are prima facie not relevant to the SSAT proceedings.
On the subject of the fourth ground, the “Wednesbury unreasonableness” ground, Senior Counsel for the Applicant submitted that, while at common law this ground of review generally only applies in exceptional circumstances, there is authority for the proposition that it cannot be relied upon when a decision maker unreasonably fails to make inquiries. It was further submitted that:
In Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, it was held that there may be a duty on an administrative decision maker to initiate an inquiry to obtain additional information before making a decision when it is obvious that material is readily available which is centrally relevant to the decision to be made or where there are clear conflicts in the evidence which can easily be resolved.[6]
[6] Submissions on behalf of Applicant 3 July 2015 page 5
In respect of the fifth ground, that the Principal Member did not have jurisdiction to make the decision, Senior Counsel for the Applicant submitted that:
In Craig v The State of South Australia (1995) 184 CLR 163 it was held that jurisdictional error occurs when decision makers make a decision that is outside the limits of the functions or powers conferred on them. In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323[7], it was stated that ‘an error of law which causes it (a decision maker) to identify a wrong issue, to ask itself a wrong question , to ignore relevant material, or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion’ can also constitute jurisdictional error.[8]
[7] [2001] HCA 30
[8] Ibid
The submission is that the issue of the Direction to Produce Documents constituted jurisdictional error as it was based on an error of law that led the Principal Member to ignore relevant material and rely on irrelevant material. The power to issue a Direction to Produce Documents can only be exercised if it is reasonably necessary for the purposes of a review (s.103K, Child Support (Registration and Collection) Act 1988 and that, given the availability of evidence that the documents required to be produced are prima facie irrelevant to the review, the Principal Member exceeded the limits of jurisdiction by issuing the Direction to Produce Documents.
It was submitted on behalf of the Second Respondent, the Child Support Registrar, that the Direction complied with the requirements of s.103K of the Registration and Collection Act[9]. The basis of the submission is that by a letter dated 9th June 2015 the Applicant’s representative had written to the SSAT to indicate that the Applicant wished to object to the Direction and sought an opportunity to appear or to provide submissions in that regard. The correspondence provided further background and contended that sufficient information had already been provided and the documents requested were not relevant to the SSAT proceedings. The SSAT replied that the Delegate had considered the proposals and decided that no supplementary submissions were required but that the Direction would not be amended.
[9] i.e. the Child Support (Registration and Collection) Act 1988
The Registrar submitted that the Court does not have the jurisdiction to hear the matter under s.110B of the Registration and Collection Act because the Applicant is not a party in the SSAT proceedings. The Court cannot review decisions of the Principal Member under that Act (see Manchester & Manchester and Ors[10]). It is conceded, however, that the Court does have jurisdiction under the Administrative Decisions (Judicial Review) Act 1977.
[10] [2011] FMCAfam 1215
It was submitted by Mr Dennis for the Child Support Registrar that the Direction was issued according to law and there is no evidence that the Delegate made an error of the kind identified in Craig v South Australia[11] and the decision of the Delegate is not affected by any of the legal errors in the grounds set out under s. 5 of the ADJR Act.[12]
[11] supra
[12] i.e. Administrative Decisions (Judicial Review) Act 1977
As to the Applicant’s third ground, the failure to take relevant considerations into account, Mr Dennis submitted that s.103K of the Registration and Collection Act confers a broad discretion on the Principal Member to require a person to give the SSAT information or produce documents that are “reasonably necessary” for the purposes of a review.
Further, there is nothing in the subject matter, scope and purpose of s.103K of the Act (either express or implied) that would limit the matters that may be taken into account in exercising the discretion to obtain information. The SSAT may inform itself as it sees fit. Based on the evidence before it, the Delegate formed the view that the SSAT had only part of the picture and further documents were reasonably necessary. In those circumstances it was reasonably open to the Delegate to exercise its power to obtain further information.
As to the natural justice ground, the Applicant’s first ground, it was submitted that:
Section 103K confers a discretion to obtain information on the basis that it is “reasonably necessary” for the purposes of the review. Where that requirement is met, and effective notice is given, the person commits an offence if they do not comply. While that discretion must be exercised in a way that is procedurally fair…it is clear from the text and structure of section 103K, and the nature of the power, that there is no requirement that the Delegate allow Mr Oxgrove to have a hearing, or to make submissions, in relation to the questions of whether the documents were “reasonably necessary” for the review, or whether the power will be exercised.[13]
[13] Second Respondent’s Outline of Submissions 3 July 2015 pages 5 and 6 at [21]-[22]
As to the Applicant’s fourth ground, the unreasonableness ground, the Registrar submitted that the Delegate of the Principal Member exercised the discretion to obtain information under s.103K of the Act reasonably, noting that the High Court held in Kruger v The Commonwealth[14] at 36:
[W]hen a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised.[15]
[14] (1997) 190 CLR 1
[15] See also Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 650 [126]; Abebe v The Commonwealth (1999) 197 CLR 510 at 554 [116]
The submission is that the Delegate formed the view that the documents sought were reasonably necessary for the review. The direction provided the Applicant with a reasonable amount of time to provide the documents, being four weeks, which was more than the statutory minimum of seven days. Thus, it is submitted, the exercise of the discretion to obtain information under s. 103K was plainly open to the Delegate and the notice was issued in accordance with that provision.
In summary, it was submitted that:
a)The Delegate formed the view that further information about the Trust was necessary and the Delegate exercised the discretion to obtain information and issued the Direction in good faith; and
b)As there is no error in the Delegate’s decision, the application should be dismissed with costs.
Conclusions
Section 103K of the Child support (Registration and Collection) Act was repealed by the Tribunals Amalgamation Act 2015 (Cth), which came into force on 1st July 2015. It was in force at the time that the Direction was issued.
Essentially, the section provided that the SSAT Principal Member may, if it is reasonably necessary for the purposes of a review, require a person to give to the SSAT within a reasonable period of time, being not less than seven days, such information as the SSAT Principal Member requires. Subsection (2) made it an offence not to comply with the notice, punishable by imprisonment for 6 months. However, subsection (2) did not apply if complying with the notice might tend to incriminate the person.
It does not appear that making the decision was an improper exercise of the power conferred under s. 103K, as there was no requirement that the person required to provide the information was a party to a review before the SSAT.
I am also of the view that it could not be said that the making of the decision to issue the direction was so unreasonable that no reasonable person could have so exercised the power.
It does not appear that the Delegate of the Principal Member did not have jurisdiction to make the decision under s.5(1)(c) of the ADJR Act.
Thus, the Applicant’s second, fourth and fifth grounds of review have not been made out.
It does appear, however, that the Delegate fell into jurisdictional error not in the issuing of the Direction, but in refusing the Applicant to be heard and to hear or receive submissions in relation to the Direction once it had been issued. It is the Applicant’s case that he sought to make submissions as to why the documents should not be produced as:
a)they were not relevant to the review; and
b)prejudice would flow to him if he were required to produce those documents.
It is certainly the case that the Applicant’s representatives had written to the SSAT advising that the Applicant wished to object to producing the documents and wished to make submissions as to why the documents should not be produced. True it is that the representatives had provided some information, but the Delegate formed the view that no supplementary submissions were required and refused the request.
In my view the Delegate fell into jurisdictional error in denying the Applicant procedural fairness. The Delegate was aware that the Applicant wished to make submissions but decided to reject the request without knowing what the Applicant may have wished to submit.
This point is important because a failure to comply was an offence under s.103K(2), punishable by a prison sentence. There was certainly no requirement to allow the Applicant to appear personally to make submissions, but in those circumstances there was certainly a requirement of procedural fairness to allow written submissions to be made.
In addition, it will not do to submit, as the Registrar submitted, that the Applicant had not demonstrated or identified any legal error or that he would suffer any practical injustice if made to comply with the direction. He was not given an opportunity to make submissions to show what prejudice he would suffer if required to do so.
In my view, it was open to the Delegate to give the Applicant a reasonable opportunity to make submissions as to why he should not have been required to produce the documents. Had he been given that opportunity, it would then have been open to the Delegate to decide whether or not his submissions should be accepted.
By failing to allow the Applicant the opportunity to make submissions as to why he should not be required to comply with the Direction, knowing that the Applicant wished to do so, the Delegate of the Principal Member fell into jurisdictional error by denying the Applicant procedural fairness.
In my view the Applicant is entitled to relief and I propose to grant the Application.
The Child Support Registrar submitted that the Applicant should be required to pay the Registrar’s costs if the Application were to be dismissed. I propose to allow the Applicant 28 days to make an application for costs and I will allow the Registrar a further 14 days to respond.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 17 May 2016
0
12
4