Oxgrove and Principal Member Social Security Appeals Tribunal and Anor
[2015] FCCA 1755
•16 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| OXGROVE & PRINCIPAL MEMBER SOCIAL SECURITY APPEALS TRIBUNAL & ANOR | [2015] FCCA 1755 |
| Catchwords: CHILD SUPPORT – Social Security Appeals Tribunal – application for stay – application for stay of operation of Direction to Produce Documents under Child Support (Registration and Collection) Act 1988 (Cth) s.103K. |
| Legislation: Child Support (Registration and Collection) Act 1988 (Cth), ss.103K, 111C |
| Cases cited: Manchester & Maher & Ors [2011] FMCA 877 Manchester & Manchester and Ors (SSAT Appeal) [2011] FMCAfam 1215 |
| 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: | 16 June 2015 |
| Date of Last Submission: | 16 June 2015 |
| Delivered at: | Sydney |
| Delivered on: | 16 June 2015 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Wahhab |
| Solicitors for the Applicant: | York Law |
| Solicitor for the First Respondent: | Ms Taah |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| Counsel for the Second Respondent: | Mr Dennis |
| Solicitors for the Second Respondent: | Department of Human Services |
ORDERS
The Social Security Appeals Tribunal is removed as a party and is replaced by the Principal Member Social Security Appeals Tribunal.
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.
The Applicant is to file and serve an Application under the provisions of section 5 of the Administrative Decisions (Judicial Review) Act 1977 for Review of the decision by the First Respondent to issue a Direction to Produce Documents to the Applicant on 19 May 2015 by Friday 3 July 2015, such Application to be returnable at 10:00 am on 7 July 2015.
This Application is adjourned to 7 July 2015 at 10:00 am for hearing before Judge Scarlett in (omitted), Sydney NSW 2000.
The Applicant and the Second Respondent are to file and serve written submissions by 3 July 2015.
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
The Application before the Court is somewhat unusual. The Applicant seeks an interim order 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 on 19 May 2015. A second interim order was not pressed, being one more properly to be decided at a final hearing. That order sought is “that the directions to produce documents issued by the Social Security Appeals Tribunal on 19 May 2015 be set aside”.
Background
The circumstances are that the Applicant received a document entitled Directions to Produce Documents, which called upon him, under the provisions of section 103K of the Child Support (Registration and Collection) Act 1988 (Cth), to provide in his capacity as director of (omitted) Pty Ltd, trustee to the Oxgrove Family Trust, documents including financial statements and statements from financial institutions for all accounts held in the name of the trust of (omitted) Pty Ltd.
The Applicant deposed in his affidavit of 12 June 2015 that he is the father of MR OXGROVE, and his son with his former wife, separated some time ago. The son and the former daughter-in-law are involved in family law proceedings which were initially commenced in this Court but were transferred on 21 May 2015 to the Family Court of Australia at Sydney. Those proceedings relate to parenting and financial matters. The financial matter between the applicant and former daughter-in-law involves the Court first determining whether or not the financial agreement was entered into between them in 2007 and prior to their marriage is upheld or set aside. Until that issue is determined, the applicants have been informed that the Family Court will not have jurisdiction in respect of the financial matter.
The Applicant goes on to depose that he has been joined by his former daughter-in-law to the family law proceedings. However, until the Court determines the aspect of jurisdiction, he says he cannot have any involvement in those proceedings.
The Applicant goes on to depose that his son and former daughter-in-law are also involved in a child support matter referable to their children. He deposes that his son is a discretionary beneficiary in the Oxgrove Family Trust, of which he is the sole appointer, and the son has been so at all times since it was established. The trustee of the Oxgrove Family Trust is (omitted) Pty Ltd, a company which the Applicant has at all times since its inception been the sole director and shareholder. His son Mr Oxgrove has never been a director or shareholder of (omitted) Pty Ltd.
As part of the family law proceedings between his son and former daughter-in-law, he was requested to provide a list of the trust distributions made by the Oxgrove Family Trust to his son, which he duly provided by way of correspondence from his accountant.
The Applicant goes on to depose that his son has informed him that during a telephone hearing at the Social Security Appeals Tribunal in the last month or so, his former daughter-in-law asserted that the Applicant’s son is or was a director and/or a shareholder of seven companies. This assertion was made in the context of her attempting to assert that the son is or was a director of companies associated with the Applicant. The Applicant denies that assertion. He goes on to speculate, paragraph 12 of his affidavit, that he believed that the notice issued by the Social Securities Appeal Tribunal was issued in circumstances where there was some suggestion made by his former daughter-in-law or her representatives in respect of (omitted) Pty Ltd or the Oxgrove Family Trust. He is the controller of the Oxgrove Family Trust and makes and has made at times all decisions in relation to that trust. Any trust distributions that are made each year remain at the discretion of the trustee, being the company (omitted) Pty Ltd, of whom he is the sole shareholder and director. At all times he has made all the decisions in relation to all trust distributions.
The thrust of the Applicant’s case is that in circumstances where his son has never been a director or shareholder of (omitted) Pty Ltd and his son has never had any control of any sort in respect of the Oxgrove Family Trust, the Applicant opposes the production of documents in the directions to produce documents which he received from the Social Security Appeals Tribunal. It goes on to say that all of the documents sought in the notice are about his personal affairs and his financial affairs and not those of his son.
The Applicant deposed that on 9 June 2015, his solicitor sent a letter to the Social Security Appeals Tribunal asking to make submissions about the directions to produce and outlined what those submissions were. That application was not successful. An email was forwarded from the Social Security Appeals Tribunal to the applicant’s solicitors.
On 10 June, his solicitors wrote to the SSAT seeking an extension of time to produce the documents on the basis that the Applicant intended to lodge an appeal against the decision and the direction to produce documents. The Applicant deposes that at the time of swearing his affidavit, which was on 12 June, his solicitors had been advised that their letter of 10 June had been directed to the case manager for urgent attention, and that the Tribunal would respond as soon as possible as to the outcome of his application.
The Applicant says that significant prejudice would flow to him if he were to be compelled to produce any documents, and he sought and received an urgent listing of the application, which came on before me.
At the hearing, the Applicant was represented by his solicitor, Mr Wahhab. Ms Taah from Australian Government Solicitor appeared for the Social Security Appeals Tribunal. Mr Dennis of Counsel appeared for the Child Support Registrar, instructed by Ms S of the Department of Human Services.
First of all, it was made clear that the Social Security Appeals Tribunal itself was not an appropriate party and that the First Respondent should be the Principal Member of the Social Security Appeals Tribunal. The other parties agreed that that substitution should be made.
The Respondent Principal Member did not wish to put a position through her solicitor, who entered, in effect, a submitting appearance in all aspects except costs.
Submissions
I heard submissions from Mr Wahhab and Mr Dennis about the question of jurisdiction. Mr Wahhab was of the view that the Court can make an order for a stay pending a decision on whether or not the Court has a power to make the decision to set aside the direction to produce documents. If there were not, he submitted there would be no check or review of the powers of the Social Security Appeals Tribunal. He submitted that his client had an arguable case. Mr Dennis for the Child Support Registrar conceded that the big issue was going to be whether or not the Court had jurisdiction to set aside a direction made by the Tribunal which was made under the provisions of section 103K. Mr Dennis said the Tribunal has an obligation to inform itself as it sees fit, and raised the question of jurisdiction.
It is a fact that the Applicant is not a party to the proceedings before the Social Security Appeals Tribunal. The Applicant has been joined as a party to the financial proceedings being heard in the Family Court. To my mind, the instant question is for the Court to decide whether it has the jurisdiction to make an order for a stay, and, if so, whether it should do so. It is envisaged by the parties that the Application to set aside the direction under section 103K is a matter for a final hearing, and again the question of jurisdiction would be argued.
Conclusions
I have taken the opportunity of looking at section 111C of the Child Support (Registration and Collection) Act 1989. It appears to me that the Court does not have a jurisdiction under that Act to make a stay order in that the Applicant is not a party to the proceedings before the Social Security Appeals Tribunal. It is only the Applicant’s son and his former wife and the Child Support Registrar who are the parties to that proceeding. Consequently, I am satisfied that the Court does not have a jurisdiction under section 111C of the Child Support (Registration and Collection) Act to stay the operation of the direction to produce documents.
It was raised in argument before me, however, that jurisdiction may come from section 15A of the Administrative Decisions (Judicial Review) Act (1977). I was referred to two decisions by Federal Magistrate Halligan, as His Honour then was, the first being Manchester & Manchester and others (SSAT Appeal)[1], and second Manchester & Marr and Ors[2]. In Manchester & Marr, the Applicant applied for an order of review under section 5 of the Administrative Decisions (Judicial Review) Act. In the course of the decision, it emerged that the Court proceeded on the basis that it did have jurisdiction under that Act.
[1] [2011] FMCAfam 1215
[2] [2011] FMCA 877
I am of the view that the Court does have jurisdiction under section 15A of the Administrative Decisions (Judicial Review) Act to grant a stay. Whether the Court has jurisdiction to set aside the direction is a matter for a final hearing.
It is clear, however, that what the Applicant needs to do under section 5 of the Administrative Decisions (Judicial Review) Act is to in fact file an application under the provisions of section 5 that Act for review of the decision by the first Respondent to issue the direction to produce documents. That will need to be done by Friday 3 July, and the application should be returnable 10 am on 7 July 2015, which is when I propose to deal with the matter.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 25 June 2015
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