Phelps & Child Support Registrar & Anor (SSAT Appeal)
[2015] FCCA 1599
•3 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PHELPS & CHILD SUPPORT REGISTRAR & ANOR (SSAT APPEAL) | [2015] FCCA 1599 |
| Catchwords: CHILD SUPPORT – Appeal – Social Security Appeals Tribunal – Appeal from decision of the Social Security Appeals Tribunal – procedural fairness – where denial of procedural fairness argued but not pleaded – where alternative grounds submitted but not pleaded – whether there was no evidence to support Tribunal’s findings – merits review – whether merits review – whether challenge to the Tribunal’s factual findings – investigation – whether Tribunal had a duty to investigate – whether Tribunal failed to investigate relevant matters – a question of law should be stated with precision because it is the question that enlivens the Court’s jurisdiction – an assertion that the Tribunal erred at law in making a finding does not raise a question of law – Wednesbury unreasonableness not established – no question of law raised – appeal dismissed. |
| Legislation: Child Support (Assessment) Act 1989 (Cth), ss.98B, 98C, 117 Child Support (Registration and Collection) Act 1988 (Cth), ss.103K, 103N, 103S, 103T, 110B, 110F, 120 |
| Cases cited: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Attorney General NT v Hand (1988) 15 ALD 186 Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Barton & Gibb & Anor (SSAT Appeal) [2013] FCCA 644 Gyselman & Gyselman (1991) 15 Fam LR 219; (1992) FLC 92-279 Minister for immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41; 31 ALR 666 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Penman & Child Support Registrar (SSAT Appeal) [2013] FCCA 492 PJ & Child Support Registrar (SSAT Appeal) [2007] FMCAfam 829; (2007) 38 Fam LR 31 RL & D Investments Pty Ltd v Bisley [2002] NSWSC 1082 R v Corporation of the Town of Glenelg: Ex parte Pier House Pty Ltd (1968) SASR 246 Walters & Phelps & Anor [2013] FCCA 1878 |
| Appellant: | MS PHELPS |
| First Respondent: | CHILD SUPPORT REGISTRAR |
| Second Respondent: | MR WALTERS |
| File Number: | SYC 2097 of 2013 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 10 December 2013 |
| Date of Last Submission: | 10 December 2013 |
| Delivered at: | Sydney |
| Delivered on: | 3 June 2015 |
REPRESENTATION
| Solicitor for the Appellant: | Ms Scanlan |
| Solicitors for the Appellant: | Scanlan's |
| Solicitor for the First Respondent: | Ms Schuster |
| Solicitors for the First Respondent: | Department of Human Services |
| Solicitor for the Second Respondent: | Mr Bowrey |
| Solicitors for the Second Respondent: | Wilson Ryan & Grose |
ORDERS
The Amended Notice of Appeal filed on 2 October 2013 is dismissed.
The decision of the Social Security Appeals Tribunal made on 22 March 2013 and posted on 2 April 2013 is affirmed.
Order 2 made on 12 November 2013 staying the operation of the said decision of the Social Security Appeals Tribunal is discharged.
Written submissions in support of any application for costs and any affidavits setting out the way in which the costs sought are quantified are to be filed and served within 28 days from the date of these Orders.
Any written submissions in opposition to any application for costs are to be filed and served within a further period of 14 days.
IT IS NOTED that publication of this judgment under the pseudonym Phelps & Child Support Registrar & Anor (SSAT Appeal) is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 2097 of 2013
| MS PHELPS |
Appellant
And
| CHILD SUPPORT REGISTRAR |
First Respondent
| MR WALTERS |
Second Respondent
REASONS FOR JUDGMENT
Appeal
This is an Appeal against a decision of the Social Security Appeals Tribunal made on 22nd March 2013 and posted on 2nd April 2013. The Tribunal set aside the decision under review and substituted a decision to do the following:
a)set the Appellant’s adjusted taxable income at $47,765.00 from 3rd February 2012 to 30th June 2012 and at $58,000.00 from 1st July 2012 to 31st December 2014;
b)set the Second Respondent’s adjusted taxable income at $192,389.00 from 3rd February 2012 to 31st December 2014;
c)reduce the annual rate of child support payable by the Second Respondent for the period from 1st January 2012 to 19th December 2012 by $3,630.00; and
d)increase the annual rate of child support payable by the Appellant by $3,884.00 for the period from 20th December 2012 to 31st December 2013 and by $4,100.00 from 1st January 2014 to 31st December 2014.
The Appellant filed a Notice of Appeal against the Tribunal decision on 19th April 2013. The Second Respondent filed an Application in a Case, seeking either the dismissal of the Notice of Appeal on the ground that it was not competent or, in the alternative, seeking that the proceeding should be transferred to the Townsville Registry of the Court.
The Application was heard on 15th October 2013 and dismissed by a decision of this Court on 12th November 2013 (Walters & Phelps & Anor[1]).
[1] [2013] FCCA 1878
As it turned out, the Application in a Case was to little purpose, because the Appellant had filed an Amended (Amended) Notice of Appeal[2] on 2nd October 2013. It was this Notice of Appeal which proceeded to hearing on 10th December 2013.
[2] Which should more properly be described as a further amended notice of appeal
In her Amended (Amended) Notice of Appeal the Appellant sought this order:
THAT the decision of the Social Security Appeals Tribunal made on 22/3/2013 is set aside and this Appeal allowed.
The Appellant does not specify what consequence should arise from the decision of the Tribunal being set aside.
The Appellant relies on the following grounds of Appeal:
1. THAT the Tribunal members erred when they failed to consider evidence before them, evidence available to them and the particular circumstances of the Applicant’s case that would have reflected the Applicants[3] true income not the income determined by them.
2. THAT the Tribunal members erred when they failed to consider evidence before them and evidence available to them that supported the Applicant’s assertion that the Applicant’s assertion that the Applicant’s husband is mentally unstable, relies about 99% upon her income and could not support his daughter from another relationship if the Applicant did not pay his child support payments.
3. THAT the Tribunal members erred when they made a decision in the absence of material from which they could reasonably have been satisfied that the Applicant intended for the children to be educated at private schools and attend boarding school.
[3] sic
Background
The background facts are set out in paragraphs [1] to [8] of the Tribunal Decision. They are succinctly summarised in the submissions of the Child Support Registrar, as follows:
13.1The Appellant and the Second Respondent are the parents of twin boys X and Y (born (omitted) 1999) and a daughter Z (born on (omitted) 1994).
13.2There were a number of changes to the care percentage in relation to the children. Most recently from December 2011 the boys were assessed as being wholly in the [Second] Respondent’s care. The child support assessment for Z ended on 19 December 2012.
13.3On 16 May 2011 as part of an application to depart from the child support assessment formula, a decision was made to set the adjusted taxable income of the Appellant to $54,773 from 19 January 2011 to 30 June 2012.
13.4On 3 February 2012 the Second Respondent applied for a change (departure) to the assessed child support liability on the grounds of the costs of the boys’ school education significantly affected the overall cost of support, as well as on the basis that Ms Phelps’ income and earning capacity were not properly reflected in the assessment.
13.5On 16 July 2012 a delegate of the Registrar decided to depart from the assessment and determined that the assessment be made on the basis that the 16 May 2011 decision was set aside and the Appellant’s adjusted taxable income was set at $67,000 for the period from 16 April 2012 to 20 February 2013.
13.6The Second Respondent objected to that decision. On 6 December 2012 the objection was allowed, though the objection officer, too, found grounds to depart from the assessment and varied the formula assessment to the extent that:
a)the 16 May decision was set aside from 1 April 2012 and
b)the Appellant’s adjusted taxable income was set at $69,060 for the period 1 April 2012 to 31 December 2014, with CPI increases of 3% on 1 July 2013 and 1 July 2014; and
c)the cost of children was increased by $45,779.00 for the period 1 April 2012 to 31 December 2014, with CPI increases of 3% on 1 July 2013 and 1 July 2014.
13.7On 13 December 2012 the Appellant applied for further review by the SSAT.[4]
[4] Submissions of the Child Support Registrar pages 3 and 4
The application for review was heard on 22nd March 2013. The Appellant and the Second Respondent both attended the hearing in person. The Appellant was accompanied by her solicitor. The Appellant and the Respondent both gave oral evidence.
The Tribunal Decision
The Tribunal made its decision on 22nd March 2013 and posted its Reasons for Decision to the parties on 2nd April 2013.
In its Decision, the Tribunal first set out:
a)the relevant history at paragraphs [1] – [8];
b)the documentary evidence relied upon; and
c)the legislative framework, being sections 98B, 98C and 117(2) of the Child Support (Assessment) Act 1989 (Cth).
The Tribunal then proceeded to set out what it saw as the three issues for determination, being:
a)Issue one – Does a ground exist to depart from the administrative assessment?
b)Issue two – Would departure from the administrative assessment be just and equitable?
c)Issue three – Is it otherwise proper to depart from the administrative assessment?
In respect of the first issue, the Tribunal noted that the Second Respondent had sought a departure from the administrative assessment on the ground that the Appellant’s income, financial resources and earning capacity were not properly reflected in the child support assessment. It referred to the grounds for departure provided in s.117(2) of the Child Support (Assessment) Act 1989[5] and the decision of the Full Court of the Family Court in Gyselman & Gyselman[6] relating to special circumstances.
[5] Which will hereafter be referred to as “the Assessment Act”
[6] (1991) 15 Fam LR 219; (1992) FLC 92-279
The Tribunal then summarised the evidence of both parties. Having done so, the Tribunal then found that the Appellant had current earnings of about $58,000.00 per annum and went on to find:
The tribunal therefore finds that there is a basis to change the assessment under subparagraph 117(2)(c)(ia) of the Assessment act in relation to Ms Phelps’ income. There are special circumstances in this case as it would be unjust and inequitable for Ms Phelps to be assessed on an adjusted taxable income of $54,773 as set by the previous change of assessment decision to 30 June 2012 in light of her actual incomes.[7]
[7] Tribunal Decision page 6 at paragraph [34]
The Tribunal considered the next issue – would departure from administrative assessment be just and equitable? It set out the relevant provision of the Act, subsection 117(4) and then reviewed the evidence in some detail, from paragraphs [37] to [66] inclusive.
The Tribunal then assessed the evidence and the relevant law and found that neither the Appellant nor the Second Respondent to support any other person. In particular, it found that the Appellant did not have a legal duty to support the parties’ adult daughter Z, nor did she have a duty to support her husband.
The Tribunal went on to find that:
a)it would be just and equitable for the child support assessments to be based on adjusted taxable incomes of $47,765.00 for the Appellant and $192,389.00 for the Second Respondent from 3rd February 2012, the date of application;
b)the adjusted taxable income for the Appellant should increase to $58,000.00 from 1st July 2012;
c)the decision should extend to 31st December 2014;
d)the assessment should recognise that the parties’ sons attended (omitted) Grammar School for 2012, 2013 and 2014; and
e)the Second Respondent should be responsible for the majority of the children’s school fees and the Appellant should contribute 20% of the annual fees.
The Tribunal did not consider that, in light of the parties’ incomes and financial resources, payment of the annual rates of child support as assessed should not cause either party or the children hardship.
Next, the Tribunal considered the third issue – is it otherwise proper to depart from the administrative assessment? In doing so, the Tribunal had regard to the provisions of subsection 117(5) of the Assessment Act and noted that the child support law recognises that each parent has a primary duty to maintain their children.
The Tribunal went on to find at paragraph [107]:
Currently neither party is in receipt of family tax benefit from Centrelink. It is therefore unnecessary for the tribunal to consider the effect of the decision on the cost to the community. However, in any event, the tribunal is satisfied that it is otherwise proper to depart from the administrative assessment in this matter and to properly reflect the incomes of the parents and the costs associated with Y and X’ tuition at a private school.[8]
[8] Tribunal Decision page 17 at [107]
Submissions
The Appellant and the Child Support Registrar each prepared detailed written submissions. The Second Respondent on the earlier submissions made in the Application in a Case. The solicitors for the Appellant and the Child Support Registrar appeared in person. The solicitor for the Second Respondent, Mr Bowrey, was given leave to attend Court by telephone.
The Appellant submitted that the Tribunal made three errors of law when making their decision:
a. THAT the Tribunal members erred when they failed to consider evidence before them, evidence available to them and the particular circumstances of the Applicant’s[9] case that would have reflected the Applicants[10] true income not the income determined by them.
OR in the alternative:
THAT the Tribunal members erred when they made a decision in the absence of material from which they could reasonably have been satisfied that the Applicant’s income was going to be the same as her taxable income the previous year, and they denied the Applicant procedural fairness by not giving her the opportunity to put evidence before them that would have supported the Applicant’s assertion that her income had decreased because of circumstances not under her control.
b. THAT the Tribunal members erred when they failed to consider evidence before them and evidence available to them that supported the Applicant’s assertion that the Applicant’s husband is mentally unstable, relies about 99% upon her income and could not support his daughter from another relationship if the Applicant did not pay his child support payments.
OR in the alternative
THAT the Tribunal members erred when they denied the Applicant procedural fairness by not giving her the opportunity to put evidence before them that would have supported the Applicant’s assertion that the Applicant’s husband is mentally unstable and could not financially support his daughter from another relationship if the Applicant did not fully support him.
c. THAT the Tribunal members erre3d when they made a decision in the absence of material from which they could reasonably have been satisfied that the Applicant intended for the children to be educated at private schools and attend boarding school.
[9] sic
[10] sic
Objection to Alternative Grounds
The Solicitor for the Child Support Registrar objected to those two alternative grounds being argued because:
a)leave had neither been sought nor granted to argue alternative grounds at the hearing; and
b)the Appellant’s submissions had been filed so late, the day before the hearing, that the Registrar had not been given a proper opportunity to consider the new grounds.
The Appellant’s solicitor argued that the alternative grounds say essentially the same thing as the original grounds and are “simply cloaked in clearer terms”.
However, it appears clear that the two alternative grounds do more than express the earlier grounds in clearer terms, as they each claim a denial of procedural fairness by the Tribunal, which is not a ground that had been pleaded. In my view, the Appellant should not be allowed to argue these alternative grounds, as she is essentially amending the Notice Of Appeal yet again, by pleading a fresh ground.
Submissions on the Appellant’s Grounds of Appeal
The Appellant relied on the decision of Minister for Immigration and Ethnic Affairs v Pochi[11], where Deane J held that a Tribunal must base its decision on logical and real material rather than “speculation or suspicion” (see also R v Corporation of the Town of Glenelg: Ex parte Pier House Pty Ltd[12]; Barton & Gibb & Anor (SSAT Appeal)[13]; Australian Broadcasting Tribunal v Bond[14]; and Attorney General NT v Hand[15]).
[11] (1980) 31 ALR 666 (also reported at (1980) 44 FLR 41
[12] (1968) SASR 246
[13] [2013] FCCA 644
[14] [1990] HCA 33; (1990) 170 CLR 321
[15] (1988) 15 ALD 186
It was submitted that the relevant principles governing what is a question of law are:
a)If there is no evidence to support a finding; or
b)If the facts inferred and support evidence are incapable of justifying the finding.[16]
[16] RL & D Investments Pty Ltd v Bisley [2002] NSWSC 1082 per David Kirby J
The Appellant submitted do indeed go to a question of law and the arguments of the Child Support Registrar that her grounds seek only to review the merits of the Tribunal decision is unfounded.
The Appellant’s written submission is at times confusing, as witness the following statements:
The Appellant Argues[17] that Ground one has not been made out…[18]
The Appellant argues that Ground Two is not established…[19]
The Appellant argues at pages 11 to 13 of the transcript that Ground three is not established…[20]
[17] sic
[18] Appellant’s Submission page 6 at [8]
[19] Ibid at [9]
[20] Ibid page 7 at [10]
Presumably the Appellant is referring to the solicitor for the Child Support Registrar.
Essentially, the Appellant argues in support of the first ground of appeal that she made submissions to the Tribunal at the hearing about certain matters which “gave the members the opportunity to make the correct decision but they went ahead and made the wrong decision knowing the documents could not support the decision”. [21]
[21] Ibid page 6 at [8]
Again, the Appellant argues that she put certain submissions to the Tribunal to the effect that her husband’s income was artificially inflated but “the members went ahead knowing the documents could not support the decision and made the wrong decision on the existing evidence”.[22]
[22] Ibid page 7 at [9]
In support of her third Ground of appeal, the appellant submits that the Tribunal “could not have reasonably made the decision that was made based on a single application form…”.[23]
[23] Appellant’s Submissions page 7 at [10]
Generally, the Appellant submits that the Tribunal ought to have issued a notice to her seeking information under s.120 of the Child Support (Registration and Collection) Act 1988 (Cth). The Appellant also submits that the Tribunal:
a)failed to investigate her financial information;
b)failed to investigate the Appellant’s husband’s capacity to work and the consequent effect on her income; and
c)made a decision based on suspicion and no evidence.
The Appellant also referred the Court to the provisions of subsection 103S(1) of the Child Support (Registration and Collection) Act 1988[24] (although there is an error in the quotation where the word “Tribunal” is used instead of “Registrar”) and to the decision of Riethmuller FM[25] in PJ & Child Support Registrar (SSAT Appeal)[26].
[24] The Appellant consistently cited the wrong year for this Act, which was passed in 1988, not 1989
[25] As his Honour then was
[26] [2007] FMCAfam 829 (also reported in (2007) 38 Fam LR 31
Relying on s.103S(1), the Appellant submits that the options open to the Court are:
a)affirm the Tribunal decision (which the Appellant opposes);
b)adjourn the proceedings and issue a notice seeking written information under s.103K of the Registration and Collection Act; or
c)set the decision aside and send the matter back to the Tribunal for reconsideration and directing the Tribunal to issue notices under s.120 of the Act for the purposes of getting the relevant information.
The submission is misconceived in several ways, as s.103S refers to powers of the Social Security Appeals Tribunal, not the Court. The powers of the Court are to be found in s.110F.
The Second Respondent’s Submissions
Mr Bowrey, for the Second Respondent, submitted that the Appeal should be dismissed. In particular, he submitted that the Tribunal was under no obligation to investigate further. As to the Appellant’s first ground of appeal, he submitted that it was not correct to say that the Tribunal failed to consider the evidence before it, as can be seen by the Tribunal’s Reasons for Decision.
As to the Appellant’s second ground of appeal, relating to the mental instability of her husband, Mr Bowrey noted that the Appellant had failed to put any medical evidence to the Tribunal in support of this claim.
Mr Bowrey also referred the Court to paragraph [101] of the Tribunal decision, where the Tribunal considered that his client should be responsible for the majority of the children’s school fees and that the Appellant should contribute 20% of the annual tuition fees.
The Submissions of the Child Support Registrar
The solicitor for the Child Support Registrar, Ms Schuster, told the Court that the Appellant’s submission did not go to any of the grounds of the Appeal. The duty of the Tribunal in conducting a review is set out in s.103N of the Registration and Collection Act. There is no obligation on the Tribunal to make its own inquiries. The Tribunal complied with its obligation under s.103K of the Act by giving the parties the opportunity to put evidence before it. On the face of the Decision it is not apparent that either party sought to provide further evidence or was prevented from doing so.
The Tribunal took into account the Appellant’s evidence of her husband’s mental illness. The weight to be given to evidence is a question of fact, not law. Referring to the Appellant’s third ground of appeal, Ms Schuster submitted that it had not been set out in the Appellant’s submissions what the evidence was going to in respect of the education of the children. In any event, the ground went to the weight given to the evidence by the Tribunal, which is not a question of law.
It was submitted on behalf of the Registrar, relying on the decision of this Court in Penman & Child Support Registrar[27]at [112]-[122] that a question of law should be stated with precision because it is the question that enlivens the Court’s jurisdiction. A mere assertion that the SSAT “erred at law” in making a particular finding does not raise a question of law.
[27] [2013] FCCA 492
As to the Appellant’s first ground of appeal, going to a failure to consider evidence before the Tribunal, it was submitted that the ground is not further particularised and it is not clear what evidence the Appellant alleges that the SSAT had before it that it failed to consider. The ground seems to do no more than invite merits review of the Decision and should be dismissed.
As to the Appellant’s second ground of appeal, the Registrar again submitted that this ground failed to particularise how the alleged error gives rise to an error of law rather than an error of fact. The Tribunal clearly weighed the evidence of the Appellant’s husband’s mental illness and low income against the evidence of the Appellant’s income and financial resources, as it was entitled to do.
The weight to be given to particular evidence is a matter for the Tribunal and lies at the heart of merits review (see Minister for Immigration and Citizenship v SZJSS[28] at [32]-[37]).
[28] (2010) 243 CLR 164 (also [2010] HCA 480
It was submitted that after assessing the evidence the Tribunal found in the special circumstances of the case it was not satisfied that the Appellant had a duty to maintain her husband that would justify a departure from the child support assessment. That was a finding open to the Tribunal on the evidence before it.
Thus, it was submitted that no error of law could be said to have arisen in relation to the second ground of appeal.
As to the Appellant’s third ground of appeal, which states that the Tribunal “erred when they made a decision in the absence of material from which they could be reasonably satisfied that the Applicant intended for the children to be educated at private schools and attend boarding school”, the Registrar submitted that the Tribunal did have regard to the intention of the parties as to the manner in which they educated the children, both in relation to whether the high cost of education established a ground for departure under s.117(2)(b)(ii) of the Assessment Act, and in relation to whether it was just and equitable to depart from the assessment under s.17(4) of the Act.
While a finding in absence of evidence capable of supporting the finding can constitute an error of law (Australian Broadcasting Tribunal v Bond[29]), no such error could be said to have arisen in this case.
[29] supra
Further, the Tribunal is not under a general obligation to inquire. The Tribunal’s role is to review. There is nothing in s.103N of the Registration and Collection Act or s.98H(1) of the Assessment Act that imposes an obligation on the Tribunal to inquire. Section 98H provides that the Registrar and, by reason of s. 103T of the Registration and Collection Act, “may, but is not required to, conduct any inquiry or investigation into the matter”.
Further, the Registrar submitted that the question of the weight to be given to the evidence about the Appellant’s intention is a question of fact, not of law, and the third ground of appeal must fail.
The Registrar submits that error of law arising from a question of law cannot be made out in relation to the grounds raised by the Appellant and the Appeal must therefore fail.
Conclusions
The Appellant relies on three Grounds of Appeal.
Ground 1
Ground 1 asserts that the Tribunal members erred in law when they failed to consider evidence before them, evidence available to them and the particular circumstances of the Appellant’s case that would have reflected the Appellant’s true income and not the income determined by the Tribunal.
As was submitted on behalf of the Registrar, it is far from clear what evidence it is that the Tribunal failed to consider about the Appellant’s income. There is nothing to show that either the Appellant or the Second Respondent sought to put further evidence to the Tribunal or that either one of them was prevented from doing so.
A reading of the Tribunal’s reasons at paragraphs [15] to [34] shows that the Tribunal reviewed and considered all of the evidence before it and then made its decision. It is entirely a matter for the Tribunal as to the weight it gives to the evidence. This ground appears to be no more than a cavilling at the merits of the Tribunal decision, which is impermissible in cases of this nature (Minister for Immigration and Ethnic Affairs v Wu Shan Liang[30]).
[30] (1996) 185 CLR 259
There is no question of law that arises in this ground and it must fail.
Ground 2
Ground 2 assets that the Tribunal members erred when they failed to consider evidence before them and available to them that supported the Appellant’s assertion that her husband is mentally unstable, relies about 99% upon the Appellant’s income and could not support his daughter from another relationship if the Appellant did not pay her husband’s child support payments.
This again appears to be no more than an attempt at merits review. It appears from the Tribunal’s reasons at paragraphs [48] to [51] that the Tribunal considered her evidence about her husband’s mental health and his low income, along with his financial commitments. If the Appellant had wanted the Tribunal to make further findings about her husband’s mental health, then it was up to her to provide medical evidence.
The Tribunal had no obligation to make its own inquiries, as was submitted by the Appellant’s solicitor.
The High Court considered the question of a duty to inquire in Minister for Immigration and Citizenship v SZIAI[31], where their Honours said at [24] and [25]:
24.Mason CJ and Deane J in Teoh[32] also rejected the proposition that failure by a decision-maker to initiate inquiries could constitute a departure from common law standards of natural justice or procedural fairness. It is difficult to see any basis upon which a failure to inquire could constitute a breach of the requirements of procedural fairness at common law…
25.Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to a reference to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error…It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error…
[31] [2009] HCA 39; (2009) 83 ALJR 1123
[32] Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273
Section 103N of the Registration and Collection Act provides that:
(1) The SSAT, in reviewing a decision under this Part:
(a)is not bound by legal technicalities, legal forms or rules of evidence; and
(b)is to act as speedily as a proper consideration of the review allows.
(2)The SSAT may inform itself on any matter relevant to a review of a decision in any manner it considers appropriate.
There is no obligation to inquire contained in section 103N.
Subsection 98H(1) of the Assessment Act provides that:
In making a decision under this Division in relation to an application, the Registrar:
(a) may act on the basis of:
(i) the application and the documents accompanying it; and
(ii) (irrelevant)
(b)may, but is not required to, conduct any inquiry or investigation into the matter.
Subsection 103T(1) of the Registration and Collection Act provides that:
Subject to the regulations, the SSAT may, for the purpose of reviewing a decision under this Part, exercise all the powers and discretions that are conferred by this Act and the Assessment Act on the Registrar.
Thus, it can be seen that there is no general obligation on the Tribunal to make inquiry under either the Assessment Act or the Registration and Collection Act.
Again, there is no question of law that arises in the Appellant’s second ground of appeal and it, too, must fail.
Ground 3
The Appellant’s Ground 3 asserts that the Tribunal members erred when they made a decision in the absence of material from which they could reasonably have been satisfied that the Appellant intended for the children to be educated at private schools and attend boarding school.
It is hard to see what the Appellant’s complaint is in this ground. Whilst there is again a complaint about a failure to inquire, which must fail for the reasons set out above, it is clear that the Tribunal not only did consider that it was the Appellant’s intention for the children to be educated at private schools and, what is more, made the decision that the Second Respondent should pay the bulk of the school fees (80%), leaving the Appellant only to pay the other 20%.
It is apparent from the Tribunal’s reasons, at paragraphs [37] through to [45], and again at [69] through to [74], that it did consider the evidence of both parties on this issue. Not only that, the Tribunal made findings at paragraphs [100] and [101] that the Second Respondent “should be responsible for the majority of the children’s school fees given that his income is considerably higher than Ms Phelps”.[33]
[33] Tribunal Decision page 16 at [101]
The Appellant’s submissions on this point can be found at paragraph [10] on page 7 of her written submissions:
The Members could not have reasonably made the decision that was made based on a single application form made in 1999-2000 and subsequently withdrawn in 2005 to support an argument that the Appellant intended the twins to attend one of Australia’s most extensive private and boarding schools in 2012.
This is clearly an attempt at merits review, by cavilling at the Tribunal’s factual finding, and so it must fail on that basis alone.
However, if it is intended by the use of the word “reasonably” to make out a claim of Wednesbury[34] unreasonableness, there is no evidence to support such a finding.
[34] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
The Appellant’s Ground 3 is entirely lacking in merit and must be dismissed.
Orders
The Appellant’s submission that the Court’s powers to deal with an appeal from the SSAT can be found in s.103S of the Registration and Collection Act is incorrect. That section applies to the Social Security Appeals Tribunal.
The powers of the Court are to be found in s.110F:
(1)The court must hear and determine an appeal under this Subdivision and may make such order as it thinks appropriate by reason of its decision.
(2) Without limiting subsection (1), the orders that may be made by the court on an appeal include:
(a)an order affirming or setting aside the decision of the SSAT; or
(b)an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the SSAT in accordance with the directions of the court.
As all three of the Grounds of Appeal have failed, the Appeal must be dismissed. The Tribunal decision will be affirmed. The order made on 12 November 2013 staying the operation of the decision of the Tribunal will be discharged.
Costs
As the Appellant has been wholly unsuccessfully in her Appeal, the Respondent to the Appeal may seek an order for costs. They will be given 28 days to make any application for costs, and the Appellant will be given a further 14 days to respond.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 3 June 2015
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