Torning v Child Support Registrar

[2004] FCA 631

FEDERAL COURT OF AUSTRALIA

Torning v Child Support Registrar [2004] FCA 631

ADMINISTRATIVE LAW - Notice of Motion seeking dismissal of an Amended Application under s 39B of the Judiciary Act 1903 (Cth) to restrain the Child Support Registrar from collecting amounts due and payable under statutory child support assessment scheme - Federal Court should exercise jurisdiction to review child support matters only in exceptional circumstances - statutory provision for comprehensive review rights at an administrative and judicial level - Constitutional validity of child support assessment scheme - Scheme not unconstitutional - Scheme not imposing a tax - Child Support Registrar not exercising judicial power - discretionary nature of relief sought - Child Support (Registration and Collection) Act 1988 (Cth) - Child Support (Assessment) Act 1989 (Cth) - Notice of Motion granted.

Child Support (Registration and Collection) Act 1988 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Judiciary Act 1903 (Cth) s 39B

Brock v Deputy Child Support Registrar (1995) 57 FCR 538 discussed
Swan Portland Cement Ltd v Comptroller General of Customs (1989) 90 ALR 280 cited
DuPont (Australia) v Comptroller General of Customs (1993) 30 ALD 829 cited
Yarmirr v Australian Telecommunications Corporation (1990) 96 ALR 739 cited
Whittaker v Child Support Registrar [2003] FCA 1429 cited
Whittaker v Child Support Registrar [2003] FCAFC 114 cited
Luton v Lessels (2002) 201 CLR 333 applied

RICHARD JOHN TORNING v CHILD SUPPORT REGISTRAR AND RACHEL JANE STEVENS

N 2255 OF 2003

TAMBERLIN J
SYDNEY
21 MAY 2004

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 2255 OF 2003

BETWEEN:

RICHARD JOHN TORNING
APPLICANT

AND:

CHILD SUPPORT REGISTRAR
FIRST RESPONDENT

RACHEL JANE STEVENS
SECOND RESPONDENT

JUDGE:

TAMBERLIN J

DATE OF ORDER:

21 MAY 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The respondent’s motion is granted.

2.        The amended application filed by Mr Torning is dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 2255 OF 2003

BETWEEN:

RICHARD JOHN TORNING
APPLICANT

AND:

CHILD SUPPORT REGISTRAR
FIRST RESPONDENT

RACHEL JANE STEVENS
SECOND RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	21 MAY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is a Notice of Motion filed on 5 March 2004 by the first respondent, the Child Support Registrar, seeking dismissal of an amended application by the applicant, Mr Torning, filed on 20 February 2004, which seeks orders restraining the Child Support Registrar, under the Child Support (Registration and Collection) Act 1988 (Cth) (“the Registration Act”) from collecting amounts claimed to be due and payable by him in relation to child maintenance.

2. The principal basis for the motion by the Child Support Registrar, is that the legislation under which the collection order is made provides an adequate and comprehensive alternative remedy for challenging the actions complained of, and consequently, as a matter of discretion and, in accordance with well-settled principles, this Court should not grant the relief sought.  The Child Support Registrar refers to Brock v Deputy Child Support Registrar (1995) 57 FCR 538 at 545-547, where Davies J considered the way in which the Registration Act and the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”), provided a remedy. His Honour said at 547:

   “Although the provisions of the Assessment Act and the Registration Act do not exclude the jurisdiction of the Federal Court, this court should exercise that jurisdiction in relation to matters arsing under the Assessment Act and the Registration Act only in a most exceptional case.”

   See also: Swan Portland Cement Ltd v Comptroller General of Customs (1989) 90 ALR 280 at 287; DuPont (Australia) v Comptroller General of Customs (1993) 30 ALD 829 and Yarmirr v Australian Telecommunications Corporation (1990) 96 ALR 739 at 750. Under the Registration Act there is a comprehensive scheme of review at an administrative and judicial level provided in Part VII and VIII. See also the definition of “appealable refusal decision” in s 4 of the Registration Act.

3. The discretionary nature of the relief sought in this case was referred to by Dowsett J and by the Full Federal Court in relation to a claim for the grant of certiorari under the Assessment Act in Whittaker v Child Support Registrar [2003] FCA 1429 and [2003] FCAFC 114. That case concerned a challenge to the validity of an assessment. The applicant states that in the present case there is no question of undue delay but this is not the determining ground relied on by the first respondent for dismissal of the proceeding.

4. The applicant’s “primary concern” and the basis for making the application under s 39B of the Judiciary Act 1903 (Cth) is that the exercise of powers by the Child Support Registrar, under which the obligations are imposed, are in excess of the powers that may be conferred on the Child Support Registrar by the Commonwealth Parliament.

5. The applicant in particular refers to ss 116(2) of the Registration Act and s 117(2)(c)(i) of the Assessment Act.

6. In Luton v Lessels (2002) 201 CLR 333 (“Luton”), the High Court held that the scheme established by the Registration Act and the Assessment Act was not unconstitutional on the ground that it conferred judicial power on the Child Support Registrar, nor on the ground that it constituted a tax for the purposes of s 51(2) and s 55 of the Constitution. The High Court considered that the purpose of payment of money into consolidated revenue fund by the Commonwealth under the legislation was designed, and had the effect, of creating and facilitating the enforcement of private rights and liabilities created by the Assessment Act. The High Court considered that the legislation did not have either the purpose or effect of creating revenue for the Commonwealth and that it did not impose a tax. Moreover, it considered that the fact that the Child Support Registrar makes an assessment or departure determination pursuant to both Acts by the application of legal criteria to the facts and circumstances of a particular case did not mean that the Child Support Registrar was engaging in an exercise of judicial power. It noted that the Child Support Registrar does not finally determine the existence of the obligation and therefore the decisions are not conclusive. In addition, the Child Support Registrar cannot enforce any decisions or determinations.

7. Mr Torning submits that the Luton High Court decision concerned itself with the provisions of sections of the Registration Act and s 117 of the Assessment Act in a general sense, without conducting an actual examination of the practical working of those provisions. He submits in particular that any assertion that the liability imposed as a consequence of the Child Support Registrar’s decision is not immediately enforceable is erroneous. He suggests that the questions he raises may need to be looked at by the Full Court of the High Court under s 20 of the Judiciary Act .

8. The applicant seeks to rely on statements made in the transcript of proceedings before the High Court in that case.  This is not permissible, as these statements have no effect as a binding precedent in any way.  They are merely statements made in the course of argument.  The applicant submits that the decision in Luton does not cover the present case.  In my view, it does.  I am bound in the present circumstances by the decision and the reasons of the High Court in that case and must follow the decision.

9. In the alternative, the applicant seeks to have the matter referred to the High Court for consideration.  However, I can see no basis or utility for so doing on the arguments and material which has been put before me in this case having regard to the recent unanimous conclusions reached by the High Court in Luton.

10. Having regard to the extensive and comprehensive alternative review rights under the legislation, the decision of the High Court in Luton, and the lack of any clearly defined grounds on which the decision or actions of the Child Support Registrar could be arguably challenged, I am satisfied, as a matter of discretion in this case, that the respondent’s motion should be granted, and that the amended application filed by Mr Torning should be dismissed with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:             21 May 2004

The Applicant appeared in person.
Counsel for the First Respondent:	G T Johnson
Solicitor for the First Respondent:	Australian Government Solicitor
The Second Respondent did not appear.
Date of Hearing:	5 April 2004
Date of Judgment:	21 May 2004