Pryor and Pearce and Anor (No.2)
[2015] FCCA 2965
•11 November 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PRYOR & PEARCE & ANOR (No.2) | [2015] FCCA 2965 |
| Catchwords: CHILD SUPPORT – Costs of SSAT Appeal – submission by Appellant as to why an order for costs should not be made against him – where Appeal misconceived and entirely lacking in merit – where Appellant wholly unsuccessful in the proceedings. |
| Legislation: Child Support (Registration and Collection) Act 1988 (Cth), s.105 Family Law Act 1975 (Cth), s.117 Federal Circuit Court Rules 2001, Sch.1, Part 2, Div.2 |
| Cases cited: Pryor & Pearce & Anor (SSAT Appeal) [2015] FCCA 1240 |
| Appellant: | MR PRYOR |
| First Respondent: | MS PEARCE |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | SYC 1484 of 2013 |
| Judgment of: | Judge Scarlett |
| Hearing date: | Considered in chambers |
| Date of Last Submission: | 25 May 2015 |
| Delivered at: | Sydney |
| Delivered on: | 11 November 2015 |
REPRESENTATION
| Appellant: | No appearance |
| First Respondent: | No appearance |
| Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Australian Government Solicitor |
ORDERS
The Appellant Mr Pryor is to pay the costs of the Second Respondent Child Support Registrar in the sum of $6,581.00.
The Appellant is allowed one (1) month to pay.
IT IS NOTED that publication of this judgment under the pseudonym Pryor & Pearce & Anor (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 1484 of 2013
| MR PRYOR |
Appellant
And
| MS PEARCE |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Application
The Appellant was unsuccessful in his Appeal to this Court against a decision of the Social Security Appeals Tribunal (Pryor & Pearce & Anor[1]). The Second Respondent, the Child Support Registrar, sought an order for costs fixed in the amount of $6,581.00, calculated in accordance with Division 2 of Part 2 of Schedule 1 of the Rules.
[1] [2015] FCCA 1240
On dismissing the Appeal on 15 May 2015, I made an Order giving the Appellant leave to file and serve within 21 days a written submission to show cause why an Order should not be made that he pay the costs of the Child Support Registrar in the sum of $6,581.00.
When I considered the Registrar’s Application for costs, I expressed the view that:
There is some force to the submission that an order for costs should be made against the Appellant, who has brought an entirely meritless appeal. However, procedural fairness requires that he should be given the opportunity to make a submission to show cause why an order for costs in that amount should not be made. I propose to allow 21 days for such a submission to be made.[2]
[2] [2015] FCCA 1240 at paragraph [37]
The Appellant’s Affidavit
The Appellant filed an affidavit on 25 May 2015, made that same day, which he stated was made as a written submission in accordance with the Order of 15 May.
In his affidavit the Appellant deposed:
Appellant in the case SYC 1484 of 2013 in his NOTICE OF APPEAL relied on 4. Australian Government’s Documentation page 1-192 to the SSAT dated 16 July 2014. The Appellant sought in the NOTICE OF APPEAL 1. 1. Dismiss the registration [no Order but Registrar’s Registration (there was no other registrations whatsoever)]. The Appellant set out a two page statement in which he claimed that:
[FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY, REASON FOR JUDGMENT, of 15 May 2015, point 14a)], a) Decisions were made by fraud, in that the Government lied in a letter of 4th July 2013;
Mr Dean, for the Child Support Registrar, in his written submission submitted that the Appellant view as follows: a. the SSAT decision was affected by fraud
FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY, REASON FOR JUDGMENT, of 15 May 2015, point 22].
Appellant with his affidavit of 9 of October 2014 sought Court’s costs fixed at $6,581.00, he says- Based on the recent Government’s letter of 1/10/14 [included], which affirmed its neglect – “…we failed to register the liability…” I seek the Australian Court’s costs additionally…”
I must remind the Court that the amount of $334,385.66 [REASON FOR JUDGMENT, page 3, point 15] was an amount for the bully for 2004-2015 applied by the Government.
Dealing with the International Law, it is obvious that the Court have a basic knowledge, that the (country omitted) Court in (omitted) acting as a party under the Convention on Recovery Abroad of Maintenance signed in New York on 20 June 1956 [art. 3-5 of THE CONVENTION] sending a legal documents only, the (country omitted) Court in (omitted) has no jurisdiction for representing Ms Pearce after the application was made to Australia on 13 May 2009, see the POWER OF ATTORNEY dated 15 April 2009.
Under the Convention on Recovery Abroad of Maintenance [see the Registrar’s evidence page 119,120, POWER OF ATTORNEY dated 15 April 2009] the (country omitted) Court has already made an application on behalf of Ms Pearce on 13 May 2009 and the maintenance for spousal was not registered with the limited time under the Australian Law [see the Registrar’s submissions, 26, page 5 filed in the Court on 21 April 2015]. Based on, that the Federal Circuit Court cannot continuing any frauds for any reasons and the order overruled the Convention and the Australian Law [see the registrar submission 26, page 5], Appellant refuse to pay any money. Appellant cannot to be responsible for the Commonwealth Officers, who responded for Ms W’s private email of 12 June 2013 11:13:52 [Registrar’s evidence, page 149 to the SSAT], which it causes to act – Australian Government [Registrar], Objection Team of Child Support, the SSAT [Tribunal] and finally the Federal Circuit Court of Australia. It is disgusting.
Appellant has just sent the Court’s Documentation to the (country omitted) Court of Human Rights at (omitted) and will return to the Court’s System in Australia soon.[3]
[3] Affidavit of Mr Pryor 25.5.2015 Affidavit “A”
The Law to be applied
Section 105 of the Child Support (Registration and Collection) Act 1988 (Cth) provides that the Family Law Act 1975 (Cth) applies to proceedings under the Act as if the proceedings were proceedings under the Family Law Act 1975. Thus, s.117 of the Family Law Act applies to Applications for costs in proceedings under the Child Support (Registration and Collection) Act 1989.
Subsection 117(2) of the Family Law Act provides that if the Court is of opinion that there are circumstances that justify it in doing so, the Court may, subjection to subsection 2A) make such order as to costs as the Court considers just.
Subsection 117(2A) provides:
In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admission of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
Conclusions
The Appellant was wholly unsuccessful in the proceedings. At paragraph [2] of the decision I held:
It should be said from the outset that the Appeal is misconceived and entirely lacking in merit. Consequently, it will be dismissed.
In the decision that the Appellant had relied on nine separate affidavits, which were objected to on the basis that they were irrelevant and largely incomprehensible. I found that:
The best that can be said of these affidavits is that they should be considered as submissions.[4]
[4] [2015] FCCA 1240 at [21]
I held at [30] that:
The Orders sought in the Notice of Appeal appear to be outside the jurisdiction of the Court with the possible exception of the proposed Order 1, seeking the dismissal of the registration of the (country omitted) Court Order.
I held at [31] that:
The Notice of Appeal contains no grounds of appeal whatsoever.
Further, I held at [35]:
The fact is that the Appellant has not pleaded any grounds of appeal and has not argued any question of law at all. The proceedings are incompetent and should be dismissed on that basis.
The Appellant’s affidavit of 25 May 2015 does not contain any reason why an order for costs should not be made against the Appellant. Parts of it are incomprehensible and it appears to be an attempt to re-argue the Appeal which was dismissed on 15 May 2015.
This is clearly a matter where it is appropriate to make an order for costs against the Appellant. I am of the opinion that there are circumstances that justify the making of an order for costs, namely the fact that the Appeal was misconceived and entirely lacking in merit.
The amount sought by the Child Support Registrar, namely $6,581.00, is the correct amount set out in Item 3 of Division 2 of Part 2 of Schedule 1 to the Rules, Costs for an appeal of an SSAT or Child Support Registrar decision.
I will order that the Appellant is to pay the costs of the Second Respondent Child Support Registrar in the sum of $6,581.00. I will allow one month to pay.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 11 November 2015