SCVG & KLD
[2018] FamCAFC 26
•15 February 2018
FAMILY COURT OF AUSTRALIA
| SCVG & KLD AND ANOR | [2018] FamCAFC 26 |
| APPLICATION IN AN APPEAL – Application for review of Appeal Registrar's decision – Where the Appeal Registrar rejected an Application in an Appeal for filing – Where the Full Court has jurisdiction to revisit its orders in certain circumstances – Application in an Appeal accepted for filing. |
| Child Support (Assessment) Act 1989 (Cth) s 104 Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) r 17.02 |
| Bailey v Marinoff (1971) 125 CLR 529 DJL v Central Authority (2000) 201 CLR 226 Manotis & Manotis and Ors [2016] FamCAFC 200 Vadisanis & Vadisanis and Anor (2015) FLC 93-671 |
| APPLICANT: | Mr SCVG |
| FIRST RESPONDENT: | Ms KLD |
| SECOND RESPONDENT: | Child Support Registrar |
| FILE NUMBER: | SYC | 4380 | of | 2008 |
| SYC | 2044 | of | 2013 |
| APPEAL NUMBER: | EA | 75 | of | 2015 |
| EA | 156 | of | 2015 |
| DATE DELIVERED: | 15 February 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 30 January 2018 |
REPRESENTATION
| APPLICANT: | In person |
| COUNSEL FOR THE FIRST RESPONDENT: | Mr Stenhouse |
| SOLICITOR FOR THE FIRST RESPONDENT: | Macphillamy’s Lawyers |
| SOLICITOR FOR THE SECOND RESPONDENT: | Mr Eskerie of Sparke Helmore Lawyers |
Orders
The Application in an Appeal dated 5 December 2017 be accepted for filing.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym SCVG & KLD and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 75 of 2015; EA 156 of 2015
File Number: SYC 4380 of 2008; SYC 2044 of 2013
| Mr SCVG |
Applicant
and
| Ms KLD |
First respondent
and
| Child Support Registrar |
Second respondent
REASONS FOR JUDGMENT
Mr SCVG (“the applicant”) was the appellant in relation to appeals EA 75 of 2015, EA 156 of 2015 and EA 51 of 2016 which were heard by the Full Court (Thackray ACJ, May & Ryan JJ) on 27 May 2016. The Full Court delivered its judgment on 24 May 2017, dismissing the applicant’s application for leave to appeal in EA 75 of 2015, the appeal EA 156 of 2015 and the applicant’s application for an extension of time to file a Notice of Appeal in EA 51 of 2016.
In December 2017 the applicant attempted to file an Application in an Appeal (the December application) in which he sought that the orders of the Full Court made on 24 May 2017 be set aside pursuant to r 17.02(1)(b) of the Family Law Rules 2004 (Cth) (“the Rules”). In the alternative, the applicant sought that he be granted a certificate pursuant to s 104 of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”).
On 11 December 2017 the December application was rejected for filing by an Appeal Registrar on the basis that the Full Court did not have the power to review its own orders.
On 2 January 2018 the applicant filed an Application in an Appeal seeking a review of this decision contending that the Registrar’s refusal to accept the application for filing was wrong.
Background
An understanding of the appeals that were before the Full Court is helpful so as to give this application context.
In 2012 the applicant applied to the Child Support Registrar (“the CSR”) for a determination to depart from various child support assessments as between himself and Ms KLD (“the respondent”). A decision was made, which was objected to by the applicant. A new decision was made, and again objected to by the applicant. The matter came before the Social Security Appeals Tribunal (the SSAT) on 6 February 2013. In March 2013 the SSAT recorded its decision setting the applicant’s adjusted taxable income at $360,000 per annum and the respondent’s at $130,000 per annum. The applicant appealed to the Federal Circuit Court of Australia and in 2015 Judge Scarlett affirmed the decision of the SSAT. It was this decision that was the subject of appeal EA 75 of 2015.
The Full Court found that leave to appeal the decision of Judge Scarlett should be refused and the application for leave was dismissed.
The respondents to this appeal were the respondent and the CSR. They too were respondents to this application. On the hearing of the application before me, the CSR sought and was granted leave to be excused from participating further in these proceedings.
Heard at the same time as the child support appeal was the applicant’s appeal against a costs order made by Cronin J on 27 February 2015. The costs order provided that the applicant pay 50 per cent of the respondent’s costs of the parenting proceedings before Cronin J on an indemnity basis. This appeal (EA 156 of 2015) was dismissed by the Full Court.
The Full Court further ordered the applicant to pay the costs of both respondents of and incidental to the appeals.
The applicant applied to the High Court for special leave to appeal the Full Court decision, but that application was dismissed.
The December application
The December application sought the following orders:
1. That the Orders of the Full Court of the Family Court dated 24 May 2017 be set aside pursuant to Rule 17.02(1)(b) because they were obtained by fraud.
2. In the alternative, that the Applicant be granted a certificate pursuant to section 104 of the Child Support (Assessment) Act 1989 that important questions of law and public interest are involved in the judgement EA75/2015 of this Court dated 24 May 2017.
The December application was supported by an affidavit of the applicant which he contends contains new information about the respondent’s financial situation. The applicant submits that this new information represents positive proof that the respondent fraudulently misrepresented her financial position in both the parenting proceedings before Cronin J and before Judge Scarlett in the child support appeal. Thus, he argues that the orders of the Full Court in dismissing the appeal, refusing leave to appeal and in ordering costs of the appeals were tainted by that fraud and should be set aside.
Order seeking to set aside the Full Court orders
Prima facie, once an order finalising a proceeding is perfected by being entered into the court record, that proceeding is at an end and is beyond recall by that court (Bailey v Marinoff (1971) 125 CLR 529 at 530 per Barwick CJ and DJL v Central Authority (2000) 201 CLR 226). In other words, that court is functus officio.
In Vadisanis & Vadisanis and Anor (2015) FLC 93-671 the Full Court acknowledged that there are some exceptions to this rule, stating:
34. Notwithstanding the principles above, there are some limited circumstances in which a court may reopen its own orders. For example in DJL v Central Authority, Callinan J acknowledged a narrow class of exceptions that may warrant the reopening of a matter following judgment and perfected orders:
189. The decisions of the majority in [Bailey v Marinoff] and [Gamser v Nominal Defendant] confirm that intermediate appellate, and certainly other statutory courts (absent clear provision to the contrary) lack inherent power to re-open perfected orders disposing of proceedings. Those authorities have not been doubted in this Court. The stated exceptions to this general rule are few and rarely found in practice. On the current authorities they are confined (statute apart) to the correction of formal errors and the like, fraud, or failure to give a party a hearing. This case is not an occasion for any extension of this narrow, and properly so, category of exceptions.
35. It must be noted that the exceptions to the general rule are rare. In State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (No 2) (1982) 150 CLR 29 the High Court held at 38 that although there is “no doubt” that there is a power to vacate its own orders, “it is a power to be exercised with great caution” and that “the circumstances that will justify a rehearing must be quite exceptional.” This was echoed in Burrell v The Queen (2008) 238 CLR 218, where the High Court stated that when considering whether perfected orders can be reopened, the “underpinning consideration” is the principle of finality of litigation [15].
(Emphasis removed)
The Rules do provide for the variation or setting aside of an order in certain circumstances. Rule 17.02 provides:
(1) The court may at any time vary or set aside an order, if:
(a) it was made in the absence of a party; or
(b) it was obtained by fraud; or
(c) it is interlocutory; or
(d) it is an injunction or for the appointment of a receiver; or
(e) it does not reflect the intention of the court; or
(f) the party in whose favour it was made consents; or
(g) there is a clerical mistake in the order; or
(h) there is an error arising in the order from an accidental slip or omission.
The circumstances in which a court may set aside its orders are therefore, circumscribed by both the common law and the Rules. This is to ensure the general rule of finality of proceedings.
Nonetheless it is clear that the Full Court may revisit its orders in the circumstances described and it was not contended by the respondent that there was no jurisdiction for the Court to do so.
Turning then to the decision of the Appeal Registrar to refuse to accept the application for filing in respect of the first order sought, in Manotis & Manotis and Ors [2016] FamCAFC 200 Thackray J considered an application to review a registrar’s refusal to accept a Notice of Appeal for filing and said:
14.… the question that then arises is whether a registrar has authority to reject a Notice of Appeal on the basis that the registrar if [sic] of the opinion that the grounds do not disclose a proper complaint against the decision of the trial judge, and on the basis that the registrar considers the relief sought in the proposed appeal is incompetent. In my view, this raises issues as to whether these are matters of procedure or substantive law, since the Registrar was entirely right to differentiate in his correspondence between his capacity to give procedural advice and his capacity to give legal advice.
15. In my view, the determination of whether a Notice of Appeal contains grounds of appeal that could be sustained when heard by a Full Court is clearly a matter of law, and therefore a matter for the exercise of judgment by the court properly constituted and not by one of its registrars … Similarly the question of whether the relief sought is competent is a matter of law, not a matter of procedure.
That being the case, the Court having jurisdiction to revisit its orders in certain circumstances, the rejection of the part of the application seeking this order was erroneous.
Utility
The applicant has also applied to set aside the primary orders on the same basis, respectively in the Family Court and Federal Circuit Court, and those applications are yet to be heard.
Quite properly the utility of this application to the Full Court being brought was an issue in the hearing. The applicant contended that even if he is successful in relation to both the primary orders and those decisions were set aside, he would nevertheless remain bound by the orders of the Full Court.
If the primary orders are set aside, what then remains to challenge of the Full Court decision? Orders which dismiss an appeal or refuse leave to appeal neither create rights nor obligations and, but for the making of the costs order, this would operate as an effective bar to the pursuit of the setting aside of the Full Court orders, there being nothing to set aside. However, having made a costs order against the applicant, I am of the view that this does entitle the applicant to seek to set this order aside in the event that the primary orders on which the appeal was based are set aside.
Order seeking a certificate pursuant to s 104 of the Assessment Act
The second order sought in the December application is the issue of a certificate pursuant to s 104 of the Assessment Act in relation to appeal EA 75 of 2015. Section 104 provides:
Despite anything contained in any other Act, an appeal does not lie to the High Court from a decree of a court exercising jurisdiction under this Act, whether original or appellate, except:
(a) by special leave of the High Court; or
(b) on a certificate of a Full Court of the Family Court that an important question of law or of public interest is involved.
The applicant was entitled to seek such an order and the application ought to have been accepted for filing in respect of this order.
In respect of both of the orders sought in the December application I stress that this decision does not speak to the likelihood of those orders being made but to the applicant’s entitlement to seek them.
Thus I propose to direct that the December application be accepted for filing.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 15 February 2018.
Associate:
Date: 15 February 2018
5
3