Redmond and Strolz and Anor (SSAT Appeal)
[2015] FCCA 252
•10 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| REDMOND & STROLZ & ANOR (SSAT APPEAL) | [2015] FCCA 252 |
| Catchwords: CHILD SUPPORT – Review of decision from SSAT – summary dismissal – no question of law disclosed in the grounds for appeal – appeal dismissed summarily. |
| Legislation: Child Support (Assessment) Act 1989, s.117 Administrative Appeals Tribunal Act 1975, s.44 Child Support (Registration and Collection) Act 1988, ss.103X, 110B Federal Circuit Court of Australia Act 1999, s.17A |
| Carrigan & Fredericks (SSAT Appeal) [2011] 45 Fam LR 657 Child Support Registrar & Crabbe & Anor [2014] FamCAFC 10 Ejueyitsi v Bond University [2012] FMCA 872 LDME & JMA (SSAT Appeal) [2007] FMCAfam 712 Penman & Child Support Registrar & Anor (SSAT Appeal) [2013] FCCA 492 Tasman & Tisdall (SSAT Appeal) [2008] FMCAfam 126 |
| Applicant: | MR REDMOND |
| First Respondent: | MS STROLZ |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | BRC 4493 of 2011 |
| Judgment of: | Judge Cassidy |
| Hearing date: | 9 December 2014 |
| Date of Last Submission: | 6 February 2015 |
| Delivered at: | Brisbane |
| Delivered on: | 10 February 2015 |
REPRESENTATION
| The Appellant appeared in person |
| The First Respondent appeared in person by telephone |
| Solicitors for the Second Respondent: | Mr C Bishop of the Department of Human Services |
ORDERS
That the Notice of Appeal (Child Support) filed 22 August 2014 be dismissed with no order as to costs between the Appellant and the Second Respondent.
IT IS NOTED that publication of this judgment under the pseudonym Redmond & Strolz & 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 BRISBANE |
BRC 4493 of 2011
| MR REDMOND |
Applicant
And
| MS STROLZ |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal by Mr Redmond against a decision of the Social Security Appeals Tribunal (“SSAT”) dated 29 July 2014. Mr Redmond seeks the following orders in his Notice of Appeal (Child Support) filed 22 August 2014:
“[1] That the appeal be allowed.
[2]. That the decision of the Social Security Appeals Tribunal dated 29 July 2014 be set aside.
[3] That the matter be remitted for rehearing to a differently constituted Social Security Appeals Tribunal to hear and determine according to law and subject to any further evidence that may be available.
[4] That the Respondents pay the Applicants costs on an indemnity basis.”
Mr Redmond sets out sixteen grounds for appeal.
Background
The appellant and the first respondent are parents of [X] (“the child”). She was born on [omitted] 2005 and she is the subject of the child support assessment. This matter has had a long and involved history with Mr Redmond seeking various departures and reviews. This appeal is the fifth appeal Mr Redmond has filed in relation to child support matters.
This appeal was filed on 22 August 2014. This appeal relates to a decision made on 28 July 2014 in which the SSAT found no reason to depart from the administrative decision.
At paragraph 37 of that decision, the SSAT held:
“[37] As the Tribunal has found that there is no basis to depart from the administrative assessments in place during the periods set out in paragraph 5 of these reasons, Mr Redmond’s application for a departure is refused. As the Tribunal has reached the same decision as that under review, that decision is affirmed.”
Mr Redmond has listed sixteen grounds for appeal. The Child Support Registrar’s solicitor, Mr Bishop, submits that the grounds can be grouped into three categories.
He argues the first category relates to grounds 3, 6, 7, 11, 12, 13, 14 and 16. The Child Support Registrar’s submission is that they are misconceived, given the nature of the SSAT decision and do not raise a question of law.
The second category described by Mr Bishop on behalf of the Child Support Registrar, relates to grounds 1, 2, 8, 9, 10 and 15. He submits that they are vague and make global assertions as to the alleged errors of law which he argues are insufficient to raise a question of law.
The final category relates to grounds 4 and 5 which Mr Bishop argues attempt to trifle with findings of fact made by the SSAT and therefore do not, in this particular case, raise a question of law.
I intend to consider the grounds for appeal under the headings provided by the Child Support Registrar.
Summary Dismissal
Section 17A of the Federal Circuit Court of Australia Act 1999 sets out the law with respect to the summary dismissal of a matter. The relevant section in the present case is s.17A(2)(b). Section 17A(2)(b) provides:
“[2] The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.”
Section 17A(3) relevantly provides:
“[3] For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.”
The application and the purpose of s.17A was discussed in Ejueyitsi v Bond University [2012] FMCA 872 where Jarrett FM, as he then was, usefully summarised the approach to the provision, saying:
“[24] The approach taken in cases dealing with s.31A of the Federal Court of Australia Act 1976 are generally seen as apposite in cases dealing with s.17A of the Federal Magistrates Act 1999: George v Fletcher (Trustee) [2010] FCAFC 53 at [75] and [105].
[25] The words of s.31A mean what they say and there is little point in attempting to formulate other phrases to encapsulate their meaning: Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118, per Hayne, Crennan, Kiefel and Bell JJ at [58] – [59]. The Court must embark upon a “practical judgment...as to whether the applicant has more than a ‘fanciful’ prospect of success”: per French CJ and Gummow J at [25]. What is required by the section is set out by the Hayne, Crennan, Kiefel and Bell JJ as follows at [60]:
... The Federal Court may exercise power under s 31A if, and only if, satisfied that there is “no reasonable prospect” of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to “no reasonable prospect” can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase “just and equitable” when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.”
The Law in Relation to “a Question of Law”
Section 110B of the Child Support (Registration and Collection) Act 1988 (“the Collection Act”) is limited to an appeal “on a question of law”. The section relevantly provides:
“A party to a review by the SSAT under Part VIIA may appeal to a court having jurisdiction under this Act, on a question of law, from a decision of the SSAT on that review under section 103S.”
It is clear that appeals from the SSAT to this Court may be only on a question of law. In Carrigan & Fredericks (SSAT Appeal) [2011] 45 Fam LR 657, the Court summarised the position regarding an appeal on a question of law as follows:
“[108] In summary, an appeal on a question of law:
• is not a review on the merits or a rehearing;
• as such, an appeal on a question of law is not one in which findings of fact, per se, can be called into question;
• however, bearing in mind the statutory intent implicit in Pt VIII of the Collection Act and the purpose of the Federal Magistrates Court itself, in dealing with SSAT appeals, the court should not be unduly legalistic or pedantic, particularly where the appellant concerned is self-represented;
• in reviewing a decision of the SSAT for error, the court should not examine the decision in question with an eye “keenly attuned to the perception of error”.”
[Footnotes omitted.]
The provision s.110B of the Collection Act is almost identical to s.44(1) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”). The Child Support Registrar submits at paragraph 25 of his submissions:
“[25] An appeal “on a question of law” is more limited in scope than an appeal which involves a question of law. As Flick J noted in Australian Postal Corporation v Hughes [2009] FCA 1057; 50 AAR 267 in respect of the analogous provision within the AAT Act (at [7]):
The jurisdiction being exercised is… constrained by the requirement that the appeal be “on a question of law”. In Brown v Repatriation Commission (1985 [sic] 7 FCR 302 at 304, Bowen C, Fisher and Lockhart JJ observed in respect to this constraint:
The existence of a question of law is not merely a qualifying condition to ground an appeal from a decision of the Tribunal; rather it and it alone is the subject matter of the appeal, and the ambit of the appeal is confined to it.”
It is therefore essential that the appellant demonstrates in the grounds of appeal the existence of a question of law.
The question of law has to be stated on the face of the appeal. It has to be stated “with precision as a pure question of law”. In LDME & JMA (SSAT Appeal) [2007] FMCAfam 712 Halligan FM, as he then was, noted:
“[29] The basis and focus of a section 110B appeal is a question of law. The appeal is not one in which findings of fact per se can be called into question (Comcare v Etheridge [2006] FCAFC 27 at [14] per Branson J, with whom Spender and Nicholson JJ agreed). The Grounds of Appeal called for in the Notice of Appeal in this Court assume the provisions of s 110B. Thus, in my view the Grounds of Appeal to be set out in the Notice of Appeal should ideally be expressed in a way that enables the respondent and the Court to identify the question or questions of law sought to be raised by the appellant and the reasons why a finding for the appellant on that question or those questions should result in the orders sought in the Notice of Appeal being made.”
I accept Halligan FM’s observations in LDME & JMA (supra) where he pointed out that an unduly legalistic or pedantic approach should not be taken in analysing the grounds for appeal, stated in the notice of appeal, and especially with unrepresented litigants. The Court, he pointed out, must strive to identify from the case presented whether a question of law arises that may justify the orders sought and strive, consistent with the requirements of procedural fairness, to deal with the substance of the case. I intend to proceed on that basis.
The Grounds of Appeal
The applicant has set out sixteen grounds of appeal. I am going to adopt the Child Support Registrar’s approach and divide the grounds into three categories.
The first group, I will include under the heading provided by the Child Support Registrar, “the Misconceived Grounds”.
The Misconceived Grounds
These are:
a)Ground 3:
“The SSAT erred in that it did not sufficiently determine the Applicant’s and Respondent’s “financial resources” available to parties pursuant to section 98L(1)(a) and 117(4) of the Child Support (Assessment) Act 1989 (Cth) and the case of PJ v Child Support Registrar (SSAT Appeal) 2007 FMCAfam 819 [sic] and Tyagi & Meares (SSAT Appeal) [2008] FMCAfam 886 [sic].”
b)Ground 6:
“The SSAT erred in finding that it was satisfied that it was “just and equitable” or would not cause “hardship” to depart from the administrative assessment for the purposes of ss.98C, 98K and 98L and 117(4) of the Child Support (Assessment) Act 1989 (Cth), having regard to the income, property and financial resources of the Applicant.”
c)Ground 7:
“The SSAT erred in finding that it was satisfied that it was “otherwise proper” to depart from the administrative assessment for the purposes of ss.98C and 117(5) of the Child Support (Assessment) Act 1989 (Cth).”
d)Ground 11:
“The SSAT made significant errors in assessing the costs of the child on the material available.”
e)Ground 12:
“The SSAT in determination of the level of child support payable by the Applicant, erred in that it did not determine adequately, having regard to its own findings of the Applicant’s own expenses, liabilities, financial resources and necessary commitments, or without having regard to the level of hardship, what actual capacity the Applicant had to contribute out of his income for the support of the child under section 117(4) and section 98C of the Child Support (Assessment) Act 1989 (Cth) and the case of In Marriage of Gyselman (1991) 103 FLR 156.”
f)Ground 13:
“The SSAT erred in its decision to set the Applicant’s adjusted taxable income at $42,000.00 and apply the child support assessment formula as the approach is inconsistent with its own determination for a departure from the child support assessment formula pursuant to “special circumstances” under section 117(2) and section 98C of the Child Support (Assessment) Act 1989 (Cth) and the case of In Marriage of Gyselman (1991) 103 FLR 156.”
g)Ground 14:
“The SSAT erred in its assessment of the level of personal benefits the Applicant received from his business, and the matter in which the Applicant met his personal expenses.”
h)Ground 16:
“The SSAT erred in that they did not consider the principals in Mee v Ferguson (1986) FLC 91-716, Lightfoot and Hampson (1996) FLC 92-663 and Wild v Ballard (1997) FLC 92-771 in relation to the “special circumstances” determined by the SSAT in relation to the child’s school fees.”
In relation to Grounds 3, 6, 7, 11 and 12, the appellant alleges errors in relation to s.117(4) and (5) of the Child Support (Assessment) Act 1989 (“the Assessment Act”). These provisions are factors that the SSAT must have regard to when determining whether the proposed departure order is just and equitable and otherwise proper. In the present case, the SSAT did not find a ground of departure established and, as a consequence of that, the Tribunal is not required to determine whether the departure order was just and equitable or otherwise proper. Hence these grounds must fail.
Grounds 3 and 6 refer to s.98K and s.98L. These sections only apply in circumstances where the Child Support Registrar initiated the departure process. The departure application lodged on 24 October 2014 was initiated by the appellant, and therefore Division 3 has no relevance and these grounds must also fail.
Grounds 14 and 16 really take issue with findings made in the previous SSAT decisions. The SSAT pointed out that they, in this decision, have no jurisdiction to conduct an appeal against earlier decisions of the SSAT, nor reconsider issues already determined in the absence of fresh evidence. I am therefore persuaded that these two grounds do not constitute an error of law. Therefore all of the grounds under “Misconceived Grounds” must fail.
The Vague Grounds
The Child Support Registrar submits that grounds 1, 2, 8, 9, 10 and 15 are vague global assertions that lack any form of precision or specificity:
a)Ground 1:
“The SSAT erred in that it did not afford the Applicant procedural fairness and natural justice, as per PJ v Child Support Registrar (SSAT Appeal) 2007 FMCAfam 829.”
b)Ground 2:
“The SSAT committed jurisdictional error as defined in Tasman & Tisdall [2008] FMCAfam 126.”
c)Ground 8:
“The SSAT erred in the conclusions reached in that they were not reasonably open to be made on the material available.”
d)Ground 9:
“That the SSAT erred in not providing adequate reasons to explain their decisions.”
e)Ground 10:
“The SSAT erred in failing to have regard to relevant material available and considerations in the making of the findings that they did.”
f)Ground 15:
“The SSAT erred in its decision in that it came to conflicting and inconsistent conclusions in its decision and its final decision was not open to be made on its own conclusions.”
As a consequence of that assertion, it is argued that these grounds do not raise a question of law.
I was referred to the authority of Penman & Child Support Registrar & Anor (SSAT Appeal) [2013] FCCA 492 at paragraphs 111 – 114:
“[111] In my view, the lack of particularity of certain grounds renders them unable to be met. It will not do for an Appellant to make a bald statement alleging error on the part of the Tribunal and expect the court to trawl through a lengthy submission in the hope that a particular part of the submission meets the ground alleged.
…
[113] These seven grounds are phrased in such wide terms as to be meaningless without particulars. Without more, they cannot establish an error of law on the part of the Tribunal.
[114] In the recent decision of CZBB & CZBC v Minister for Immigration, Judge Neville dealt with a similarly wide ground, saying at [14]:
In relation to ground (iii), it too is framed in so wide and general a manner as to require the court to “fill in the gaps”, so to speak, to give substance to it. In such circumstances, I do not propose addressing this ground.
[Footnotes omitted.]
With respect to ground 1, the alleged allegation that there is a denial of procedural fairness and natural justice, without particulars, is “meaningless” (Penman & Child Support Registrar & Anor (SSAT Appeal) (supra)).
Ground 2 asserts that the SSAT committed jurisdictional error as defined in Tasman & Tisdall (SSAT Appeal) [2008] FMCAfam 126. In that case Brown FM, as he then was, discusses jurisdictional error at paragraphs [44] and [45].
[44] An administrative tribunal exceeds its powers and thus commits a jurisdictional error, which is correctable on appeal in respect of a question of law, if it:
i)fails to construe properly the legislative provisions applicable;
ii)identifies the wrong issues or asks itself the wrong questions;
iii)ignores relevant material or relies on irrelevant material;
iv)fails to afford procedural fairness to the party before it;
v)makes an erroneous finding of such a magnitude that it goes to the very jurisdiction which it purports to exercise rendering its decision perverse or unreasonable or otherwise offending logic.
[45] As Gleeson C.J. pointed out in Re Minister for Immigration & Multicultural Affairs: Ex Parte Applicant S20/2002:
“To describe reasoning as illogical, or unreasonable or irrational, may merely be an emphatic way of expressing disagreement with it. If it is suggested that there is a legal consequence, it may be necessary to be more precise as to the nature and quality of the error attributed to the decisions maker, and to identify the legal principle or statutory provision that attracts the suggested consequence.”
[Footnotes omitted.]
The applicant failed to provide particulars of the jurisdictional error alleged to have been made. This ground must therefore fail.
Grounds 8, 10 and 15 are global assertions that do not provide particulars sufficient to amount to a question of law.
Ground 9 asserts the SSAT erred in not providing adequate reasons. In Child Support Registrar & Crabbe & Anor [2014] FamCAFC 10 the Full Court of the Family Court confirmed that such a ground cannot be sustained because of the requirements of s.103X(3)(b) of the Collection Act. I therefore accept the Child Support Registrar’s submission that the grounds 1, 2, 8, 9, 10 and 15 are not made out and must fail.
The Question of Fact Grounds
The Child Support Registrar submits that grounds 4 and 5 are attempts by the appellant to quibble with findings of fact made by the SSAT and are therefore not available. The Child Support Registrar’s submissions state at paragraphs 53 and 54:
“[53] Ground 4 asserts the SSAT did not sufficiently consider the Applicant’s necessary expenses pursuant to subsection 117(2)(a)(iii) of the Assessment Act. The Registrar submits a question of law is not raised by a failure to give sufficient consideration, the provision was either considered or it was not. In any event, the SSAT, while not bound by the terms of the application, clearly were not required to give consideration to this ground given the Applicant applied for a departure on the basis of his income, property and financial resources pursuant to section 117(2)(c)(ia).
[54] Ground 5 asserts the SSAT erred in its assessment of special circumstances. Again the Applicant provides no particulars such that the Registrar refers to her submissions above and submits the ground is meaningless. In any event, findings as to whether or not special circumstances are established are findings of fact and do not raise a question of law.”
I accept the submission that the grounds do not raise a question of law and therefore must fail.
Conclusion
I am satisfied that the applicant has failed to identify a question of law within the grounds of the appeal. I therefore, in the absence of a clearly articulated question of law, have no jurisdiction to entertain the appeal. I note that the appellant was given an opportunity to file an amended notice of appeal when he was put on notice at a mention of this matter on Tuesday, 14 October 2014. The Child Support Registrar indicated at the mention on 14 October 2014 that she intended to seek to have the appeal dismissed summarily unless the applicant filed a Notice of Appeal that disclosed a valid ground for appeal. The appellant has elected not to file an amended notice. I therefore dismiss the appeal summarily.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Cassidy
Date: 10 February 2015
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