Tydeman v Child Support Reg

[2001] HCATrans 206

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S216 of 2000

B e t w e e n -

CATHERINE ALEXIS TYDEMAN

Applicant

and

CHILD SUPPORT REGISTRAR

Respondent

Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 22 JUNE 2001 AT 3.15 PM

Copyright in the High Court of Australia

MS C.A. TYDEMAN appeared in person.

MR G.T. JOHNSON:   May it please your Honours, I appear for the respondent in that matter.  (instructed by the Australian Government Solicitor)

McHUGH J:   Yes, Ms Tydeman.

MS TYDEMAN:   My application for special leave to proceed to the High Court is not an appeal in the traditional sense of the word but rather an application to have questions that have arisen from earlier judgments finally determined by the High Court.  As well, constitutional issues will arise and I will address that issue later on.  I am not aware that under these circumstances a time limit has been imposed.

McHUGH J:   What do you mean that a time limit has been imposed?

MS TYDEMAN:   A time limit of 28 days, your Honour, to make an application.

McHUGH J:   You are seeking special leave to appeal and the Full Court decision was on 6 December 1999 and you did not file your application till 27 September.  So you are a long way out of time and ordinarily it would not be granted, so you have to make out a positive case for an extension of time.  But it seems to me that you have two main issues to address:  first of all, that issue and, secondly, the question of the correctness of the Full Court’s decision.

MS TYDEMAN: The first part of my address to this Court is in respect to the passage of time. I rely on my affidavit that I filed as having been read. In the interests of the community and in justice, I had to decide whether my issues warranted being brought to the attention of the Court. My decision to proceed was not made lightly, capriciously or emotionally but after long and thoughtful consideration of the issues. My decision was based on my strong feeling of responsibility to the community because I had been instrumental in affording to the respondent protective shields so that he does not have to stand responsible and accountable to the Federal Court. The respondent led Justice Katz astray by deceptively submitting that the meanings of the words “decision” and “determination” under Part 6A of the Child Support Act are synonymous.  As a result my application failed.  I do not accept that a judgment based on deception should be allowed to stand and I submit that it is in the interests of the community and justice, that his gained vested right of protectionism needs to be examined by the High Court.

The respondent relies on the fact that the conduct exercised, the subject of my application in 1998, took place on 21 January 1993.  Ever since that event took place I had pursued every conceivable avenue outside of the Court to have my grievances addressed, but the respondent blocked every step I took.  Justice Katz declared that no time limit has been imposed by the rules of the Court to make a request to review conduct.      The respondent relies on the fact that my application to this Court was not filed for several months after the judgment was delivered and he refers to the judgment of Flanagan v Handcock.  Firstly, this judgment was on an entirely different set of circumstances and issues, although the common denominator was the respondent.  Secondly, no general principle was set by this judgment and this is supported by the fact that it was an unreported judgment.  Thirdly, it appears to me that Justice McHugh exercised his discretion under the circumstances presented at that time and in respect to that case.

I rely on the reported judgment by Justice Sackville in the matter of Tydeman v Child Support Registrar and delivered on 9 July 1999 and which has been filed by the respondent.  Justice Sackville stated:

The principles to be applied in determining whether to grant an extension of time for the filing of an appeal were laid down in Jess v Scott (1986) FCR 187. Having regard to the explanation for the delay, the most important consideration in the present case, although not necessarily the only one, is whether the applicant’s grounds of appeal are arguable.

Having accepted my explanation as to delay, Justice Sackville then leaned towards the merit of an arguable case and granted my application.

The second part of my address to this Court is in respect to the arguable points of my case. The most contentious issue is the meanings of the words “decision” and “determination” as they appear in Part 6A of the Child Support Act.  The question is, are the meanings of these words synonymous or are they distinguishable?

Under Part 6A of the Child Support Act a party can make an application to the respondent requesting that a decision be made whether valid grounds do or do not exist. Section 98H of the Child Support Act directs the respondent to make his decision based on the application form and the response by the other party.  If the respondent decides that valid grounds do not exist, then the application is dismissed.  The party aggrieved by that decision had no rights to appeal that decision.

If the respondent decides that valid grounds do exist and that it would be just and equitable and otherwise proper to review the child support assessment then, and only then, can he exercise the power under section 98A and make a determination. The determinations that the respondent can make are set out under section 98D of the Child Support Act.  The meaning of the word “determination” is defined under section 59 as:

varying the annual rate of child support.

Neither party has any right to appeal the decision or determination made by the respondent.  A party could make an application under section 117 and ask the Court to make a new order in respect of the child support amount, in which case that party had to show that circumstances have changed, or new circumstances had arisen, since the original decision.  This is not an appeal in the traditional sense of the word.

I submit that under Part 6A of the Child Support Act there is a distinction between the meanings of the words “decision” and “determination”.  The meaning of each word has been individually and separately described and each refers to individual acts.

McHUGH J: Yes, but that is not the point, is it? It is not the point even whether there is a distinction between “determination” and “decision” in Part 6A, the question is what is a relevant decision for the purpose of the AD(JR) Act and ‑ ‑ ‑

MS TYDEMAN:   A relevant decision for the purpose of the AD(JR) Act, your Honour, is Justice Smithers.  In the Intervest Corporation Pty Limited v FCT Justice Smithers declared that paragraph (e) in Schedule 1 does not cover a decision not being part of the process of assessment.  Justice Smithers referred to Tooheys Limited v Minister for Business and Consumer Affairs, when Justice Ellicott stated:

In other words, what paragraph (e) is directed to is the process whereby the liability to tax or duty is calculated in a particular case.  A decision to make a by-law or determination is a decision which affects liability.  It is not a decision dealing with the calculation of liability.

Subsequently, the declarations made by Justice Ellicott and Justice Smithers were upheld by the Full Court of the Federal Court of Australia in Minister for Industry & Commerce v Tooheys Ltd and Hadfield Finance Pty Limited v Federal Commissioner of Taxation.  The common denominator between paragraphs (e) and ‑ ‑ ‑

McHUGH J:   Yes, but there was an argument in the Full Court of the Federal Court as to the meaning of “decision” over a number of years.  This argument that you are seeking to put is an argument I put as counsel 20 years ago in Chaney’s Case and lost and what was held in Chaney was ultimately upheld by three Justices of this Court in Bond’s Case, that you have - the decision for the purpose of section 5, really means, except in very exceptional circumstances, the ultimate decision in the case, not some step in the process, and those decisions that you refer to were decided six years and two years before the decision in Bond.  Now, you have got to concentrate on Bond; Bond is the case.  And if you apply what Bond says, that seems to me to create enormous difficulties for you.

MS TYDEMAN:   Okay.  The next issue is the Bond decision wherein Chief Justice Mason went to great lengths to declare the meaning of the word “decision”.  In 1990, when the Bond decision was delivered, Part 6A of the Child Support Act did not exist. At that time Chief Justice Mason was not asked to, nor did he, advance further where a decision can lead to an assessment determination. In judgment Chief Justice Mason used the words “determination”, “determinative” and “substantive determination”, but what Chief Justice Mason was referring to, I submit, was the meaning of the word as it exists outside of Part 6A of the Child Support Act. Within Part 6A the meaning of the word “determination” is described by section 98D as varying or recalculating the child support amount, but outside of Part 6A the meaning of the word “determination” can mean “decision”.

To support my submission, I refer to the leaflet published by the High Court and to the heading “Operation of the Court”.  Here it states:

Other cases which come to the High Court for final determination involve appeals against the decisions of the Supreme Courts –

et cetera. In this context, I submit that the expression “final determination” means “final decision” and cannot possibly refer to the “determinations” as described in section 98D of the Child Support Act. So section 98D of the Child Support Act says determinations are the varying of the child support amount.  Paragraph (s) in Schedule 1 of the AD(JR) Act says that what is excluded from the Federal Court are determinations.  So if determinations are the varying of the child support amount, that, I submit, is what is excluded from the Federal Court, but the actual decision made as to whether valid grounds do or do not exist, I submit that that is not excluded ‑ ‑ ‑

McHUGH J:   But in having regard to what Sir Anthony Mason said in Bond, that decision, the one you rely on, is not a decision which has any finality about it; it is merely a step, at best on the way to making the ultimate determination.  In fact, arguably, there is no difference between “decision” in 98H and “determination”.

MS TYDEMAN:   Well, I submit, your Honour, that there is a distinction there, because a decision could be made under Part 6A of the Child Support Act.  Valid grounds do not exist.  Application is dismissed.  That is the end of story.  But if a decision is made that valid grounds do exist, then, and only then, can the power be exercised to make a determination.  Similarly, in the criminal jurisdiction, a jury decides whether the accused is guilty or not guilty.  If the decision of the jury is that the accused is guilty ‑ ‑ ‑

McHUGH J:   No, juries do not make decisions.  They either convict or acquit.  Juries do not make decisions.

MS TYDEMAN:   Well, okay, well if the jury convicts, then, of course, is it not up to the judge then to determine the punishment?  I have never been in the criminal jurisdiction, your Honour.

McHUGH J:   Technically, it is not, because it is all part of the judgment; the sentence is part of the judgment.  But we need not stay with that, it has nothing to do with this case.

MS TYDEMAN:   No, but I am just trying to get to the difference between “decision” and “determination”. Outside of Part 6A, yes - I have been in Court for a lot of this part of the day, and I have heard counsel and the Court use the word “determined”, “determination”, et cetera. Always used in the context of decision.

McHUGH J:   Yes, but the point is that if paragraph (s) was not there in the schedule, your problem would still be to identify a relevant decision.  Just as in Chaney’s Case.  I relied as counsel in Chaney’s Case on an anterior step and I was met with the answer of the Full Court of the Federal Court that it was not an ultimate decision and therefore it was not a decision for the purpose of the AD(JR) Act, and that seems to me the problem that you face.  I know much of the focus in the case has been thrown on the exemption, and it is relevant in one sense as to what conduct you can take into account, but it seems to me your principal difficulty is to identify a decision within the opening words of sections 3 and 5.

MS TYDEMAN:   Well, there is another point I wish to raise to the Court about the explanatory memorandum which accompanied the enactment of paragraph (s) in Schedule 1.  Here it stated:

It was never the intention that decisions made by the Registrar under the new administrative review process should be subject to the ADJR Act.

The reason followed in the explanatory memorandum:

There are appeal provisions already contained in the Assessment Act for persons who are dissatisfied with the outcome of a review.

I am submitting to this Court there is absolutely no appeal provisions whatsoever.

McHUGH J:   Well that seems to be correct, I think, but there is a procedure, is there not, of review, if my recollection is right?  I may be wrong on that.

MS TYDEMAN:   Well, this is the review process that we are talking about, your Honour.

McHUGH J:   No, but a review in the Family Court.

MS TYDEMAN:   I am sorry, your Honour, and with respect to you, in the matter of Flanagan V Handcock, Justice McHugh was led into error in his interpretation of the Act when he stated at line 86:

there were other avenues of relief open to you including the section 117 application.

There was no avenue of relief under section 117.  If a party chooses to go to the Family Court under section 117 they have to demonstrate to the Family Court that circumstances have changed since the original review decision was made or that new circumstances have arisen since the original review circumstances was made and, in this respect, I rely on Justice Kay in the matter of Perryman v Perryman where he says:

There does not appear to be any procedure in the Child Support Act for a re-hearing or review of the proceedings that take place before the Review Officer . . . I am however concerned that the Registrar’s power to make determinations under Part 6A could go unchecked and unchallenged . . . the parties could not use section 117 to seek a departure from the new assessment on the ground that the movement from the original assessment to the new assessment was not proper.

So therefore a procedure under section 117 is, in fact, a new application to the Family Court.  But what about the original decision that happened before.  My problem is that ‑ ‑ ‑

McHUGH J:   Yes, but it does not throw any light on this problem.  Let it be accepted that you are absolutely right, that the Explanatory Memorandum is wrong and there is no appeal in any relevant sense or even any right of review.  The question still remains, what is a decision that you can point to which comes within the AD(JR) Act?

MS TYDEMAN:   Well, your Honour, I would very much like to have the High Court of Australia canvass this issue, examine the Act, et cetera, and to make a final determination as to what constitutes a decision and a determination under Part 6A of the Child Support Act.  They cannot both be the same.

McHUGH J:   But at best that would be a decision on this particular piece of legislation.  We could not refine or develop any point of principle.  That seems to me to have been done by Sir Anthony Mason in Bond’s Case.  We would be giving a decision on a particular piece of legislation on a particular point that you focused on.

MS TYDEMAN:   Okay. Chief Justice Mason has assisted me in respect to the question to be resolved by the High Court as to the meaning of the words “decision” and “determination” as they appear in Part 6A of the Child Support Act.  At paragraph 28 of the Bond decision he stated with reference to the meaning of the word “decision”:

the meaning must be determined by reference to the text, scope and purpose of the statute itself.

I will be asking the High Court to examine the text, scope and purpose of Part 6A of the Child Support Act in conjunction with paragraph (s) in Schedule 1 to advance the answer.  I think this is the opportunity now for the High Court to be able to look at this issue and perhaps make a final determination on this issue, because the Bond decision, as I said, when that issued, Part 6A of the Child Support Act did not exist, therefore Chief Justice Mason could not have made any reference to it whatsoever in his decision in 1990.

McHUGH J:   Well, that can be accepted, but it is a statement of general principle which applies to hundreds of enactments passed by the federal Parliament.  You must appreciate that this Court can only grant special leave in a very limited number of cases, it has to be some question of public importance and affects many, many litigants and be arguably wrong before we will intervene.  If you have been here today, as I think you mentioned a moment ago, you would have heard quite a number of cases which are very important from the parties point of view, some of them raise important points of principle, but they just did not qualify for special leave to appeal.

MS TYDEMAN:   Okay.  Could I just spend a moment on the constitutional issues then?

McHUGH J:   Yes, certainly.

MS TYDEMAN:   As a citizen of Australia, I have the right to challenge any legislation in the High Court, is that correct?

McHUGH J:   Well, I am not here to be interrogated.

MS TYDEMAN:   No, I am just asking.

McHUGH J:   But you can commence proceedings, but if you want to challenge legislation you can do it by way of a statement of claim, you can do it in other ways, but it depends upon what legislation you are dealing with and what is the point you want to deal with.

MS TYDEMAN:   Well, the point is I would like to challenge Part 6A of the Child Support Act.

McHUGH J:   Well, if you want to do that, the constitutionality of it, then that requires commencing a separate action altogether.

MS TYDEMAN:   A separate action altogether.

McHUGH J:   Yes.

MS TYDEMAN:   Okay, your Honours, well, it seems I know where I stand now.

McHUGH J:   Yes, but Ms Tydeman, what really worries me about this case:  you are obviously a person of some means anyway, and there are questions of costs involved in this case; you have lost out all along the way and you have costs orders against you.  It is a matter for you.  You are entitled to litigate as much as you want to, but you should really give serious consideration to these issues.

MS TYDEMAN:   Well, I am still not satisfied, your Honour.

McHUGH J:   I appreciate that but you pay a high price for not being satisfied by pursuing litigation.  A famous American judge once said that there were two things he would avoid and one of them was litigation.  It is something I ‑ ‑ ‑

MS TYDEMAN:   Well, I can rest assured your Honour, once I have finished this matter against child support and I have been fighting it since 1993.  I will continue fighting it until finally it is sorted out with the Registrar.  Once that is finished, I will never ever step foot inside a court again.  Never.  You can have my word on that.

McHUGH J:   Thank you.  I am sorry, have you finished your submissions?

MS TYDEMAN:   Yes, I have, your Honours.

McHUGH J:   Well, thank you very much.  Yes, we need not hear from you, Mr Johnson.

Mrs Tydeman has put her case very forcefully and eloquently but, in our view, the decision in the court below is not attended with sufficient doubt to warrant the grant of special leave to appeal.

Do you make an application?

MR JOHNSON:   I do make an application for costs, your Honour.

McHUGH J:   Yes.  The application is dismissed with costs.

AT 3.36 PM THE MATTER WAS CONCLUDED