Patrick and Patterson and Anor (SSAT Appeal)

[2013] FCCA 785

FEDERAL CIRCUIT COURT OF AUSTRALIA

PATRICK & PATTERSON & ANOR (SSAT APPEAL) [2013] FCCA 785

Catchwords:
CHILD SUPPORT – Social Security Appeals Tribunal – Appeal from decision of SSAT – where appellant did not attend court – default of appearance of a party.

COSTS – Application for costs – party and party basis.

Legislation:
Child Support (Registration and Collection) Act 1988(Cth), ss.105, 110B, 110F

Family Law Act 1975 (Cth) s.117
Federal Circuit Court Rules 2001 rr.13.03C, 16.05

Cases cited:
Colgate Palmolive Pty Ltd v Cussons Limited (1993) 46 FCR 225
Kohan & Kohan (1993) FLC 92-340
Prantage & Prantage [2013] FamCAFC 105
SZDMD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 126

Appellant: MR PATRICK

First Respondent: MS PATTERSON

Second Respondent: CHILD SUPPORT REGISTRAR

File Number: SYC 1484 of 2013

Judgment of: Judge Scarlett

Hearing date: 9 July 2013

Date of Last Submission: 9 July 2013

Delivered at: Sydney

Delivered on: 9 July 2013

REPRESENTATION

The Appellant: No appearance

The First Respondent: No appearance

Solicitor for the Second Respondent: Mr Gouliaditis

Solicitors for the Second Respondent: Australian Government Solicitor

ORDERS

1. The Appeal is dismissed.

2. The decision of the Social Security Appeals Tribunal made on 6 February 2013 and posted on 18 February 2013 is affirmed.

3. The Appellant is to pay the Second Respondent’s costs fixed in the sum of $6,408.00.

4. I allow six (6) months to pay.  

IT IS NOTED that publication of this judgment under the pseudonym Patrick & Patterson & Anor (SSAT Appeal) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT LAUNCESTON

SYC 1484 of 2013

MR PATRICK

Appellant

And

MS PATTERSON

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

Appeal

1. This is an Appeal against a decision of the Social Security Appeals Tribunal made on 6^th February and posted on 18^th February 2013. The Tribunal set aside the decision under review and sent the matter back to the Child Support Registrar for reconsideration in accordance with the direction that the Registrar is to use the exchange rate that applied on 30^th January 2012 to determine the liability arising under the Court order registered on that day.

2. The Appellant has not attended court for the hearing of the Appeal. He has this day sent a Statutory Declaration to the Court in which he stated that he is suffering from extreme pain when walking, standing and sitting and agrees to the case proceeding in his absence.

Litigation History

1. The Appellant filed a Notice of Appeal against the decision of the Social Security Appeals Tribunal on 20^th March 2013. The Notice was returnable on 14^th May 2013.

2. On the return date, the Court made the following Orders:

   1.The Social Security Appeals Tribunal is removed as a party to the proceedings.

   2.The First Respondent is MS PATTERSON.

   3.The Second Respondent is CHILD SUPPORT REGISTRAR.

   4.The Appellant is to file and serve an Amended Notice of Appeal on the First Respondent and the Child Support Registrar within twenty-one (21) days.

   5.All documents may be served on the First Respondent by ordinary prepaid post.

   6.The Appellant is to file an affidavit and written submissions and serve them on the First Respondent and the Child Support Registrar by 4 June 2013.

   7.The First Respondent is to file and serve all affidavits and written submissio9ns on the Appellant and the Child Support Registrar by 21 June 2013.

   8.The Child Support Registrar is to file and serve any affidavit and written submissions by 2 July 2013.

   9.The Appeal is listed for Final Hearing on Tuesday 9 July at 12 noon.

   10.The Court requires the services of an Interpreter in the Polish language for the purpose of the Appeal.

3. On 28^th May 2013 the Appellant filed an Amended Notice of Appeal, along with an affidavit.

4. He filed a further affidavit on 11^th June 2013.

5. The Child Support Registrar filed written submissions on 2^nd July 2013.

6. The Appellant filed a further affidavit on 5^th July 2013.

7. The First Respondent has not filed any documents.    

The Hearing

1. The Appellant did not attend Court, nor did the First Respondent, who resides in Poland. Mr Gouliaditis, solicitor, appeared for the Child Support Registrar.  

2. The Appellant sent a statutory declaration to the Court which was filed at 10:51 am. The Statutory Declaration says:

   I am on the workers compensation benefits over 8 years. Today, on 9 of July 2013 I have extremely pain when walking, standing and sitting.

   This medical problem may occur in the future again. I have not more evidence to support my claim, excerpt the Registrar’s Calculation, Submission, page 1/4 CS docs, folios 472-473, letter of 27 November 2006.

   The Registrar was clearly aware that the amount with his calculation of $13,368.05 has doubled my maintenance because it has been paying up to 16 December 2004 under the Australian Federal Court’s Order ZP 3933/01 dated 14 January 2002. The payments under the order has been disputed ever. I do agree to proceed the Court’s Case 54C1484/13[1] without my presence.

   [1] sic

   My recent medical certification with this Statutory Declaration inc.

3. In the absence of the Appellant, it was open to the Child Support Registrar to seek to have the matter determined under the provisions of Rule 13.03C. Subrule 13.03C(1) provides for a number of options:

   (1) If a party to a proceeding is absent from a hearing (including a first court date), the Court may do 1 or more of the following:

   (a)     adjourn the hearing to a specific date or generally;

   (b)     order that there is not to be any hearing, unless:

   (i) the proceeding is again set down for hearing; or

   (ii)    any other steps that the Court directs are taken;

   (c)if the absent party is an applicant – dismiss the application;

   (d)if the absent party is a party who has made an interlocutory application or a cross-claim – dismiss the interlocutory application or cross-claim;

   (e)proceed with the hearing generally or in relation to any claim for relief in the proceeding.

4. The solicitor for the Registrar sought an order dismissing the Appeal under r.13.03C(c). I acceded to that application and the Appeal will be dismissed.

Where a Proceeding has been dismissed

1. Where a proceeding has been dismissed under Rule 13.03C(c), a party who wishes to vary or set aside the Court’s decision may make an application to do so under Rule 16.05. The procedure has been described by Hely J in SZDMD v Minister for Immigration & Multicultural & Indigenous Affairs[2] at [8]-[9]:

   8. Rule 16.05(2)(a) of the Federal Magistrates Court Rules[3] provides that the Federal Magistrates Court[4] may vary or set aside any order after it has been entered if the order was made in the absence of a party. It may therefore be open to the applicant to apply to the Federal Magistrates Court to re-open the proceedings in that court.

   9. For such an application to be successful the applicant would have to furnish both a reasonable excuse for his original non-attendance and demonstrate that there would be some purpose in re-opening the case and, of course, there would be no such purpose unless he had an arguable case.[5]

   [2] [2005] FCA 126

   [3] Now the Federal Circuit Court Rules 2001

   [4] Now the Federal Circuit Court

   [5] [2005] FCA 126 at [8]-[9]

Costs

1. The Respondent seeks an order for costs in the amount of $6,408.00. It is hardly surprising that where an Appellant has failed to appear for a hearing of which he has had plenty of notice, the other party should seek a costs order.

2. Section 105 of the Child Support (Registration and Collection) Act 1988 (Cth) provides that the Family Law Act 1975 (Cth) and the Federal Circuit Court Rules apply as if these proceedings were proceedings under the Family Law Act. Section 117 of that Act applies in respect of costs. I am of the opinion that there are circumstances that justify the Court in making an order for costs, as I have described in paragraph [15] above. I have considered the relevant matters set out in s.117(2A).

3. There is little in the way of information about the parties’ financial circumstances, but the Appellant is apparently off work on Workers Compensation. Neither party is in receipt of a grant of legal aid. The Appellant has been wholly unsuccessful in the proceedings. It is relevant that he has failed to appear for the hearing without providing prior notice.

4. There should be an order for costs in favour of the Child Support Registrar. The amount sought is $6,408.00, which is the amount provided by the scale set out in Division 2 of Part 2 of Schedule 1 to the Rules. This appears to be an appropriate figure. It is the usual rule that costs are payable on a party/party basis (Prantage & Prantage[6]) unless there is a special or unusual feature in the case that would justify a departure from the usual practice (Colgate Palmolive Pty Ltd v Cussons Limited[7]; see also Kohan & Kohan[8]).

   [6] [2013] FamCAFC 105

   [7] (1993) 46 FCR 225

   [8] (1993) FLC 92-340

5. The Appeal will be dismissed and the decision of the Social Security Appeals Tribunal will be affirmed. The Appellant will be ordered to pay the Child Support Registrar’s costs, fixed in the amount of $6,408.00. In the circumstances, I will allow six months to pay.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  11 July 2013