Tydeman v Child Support Registrar

[1999] FCA 1696

FEDERAL COURT OF AUSTRALIA

Tydeman v Child Support Registrar [1999] FCA 1696

ADMINISTRATIVE LAW – Judicial review – determination by Child Support Registrar under Part VIA of Child Support (Assessment) Act 1989, that administrative assessment of child support should be departed from – determination excluded from scope of Administrative Decisions (Judicial Review) Act 1977 by item (s) of Schedule 1 to that Act – whether antecedent decision to make the determination fell outside the exclusion.

Child Support (Assessment) Act 1989, Part VIA
Administrative Decisions (Judicial Review Act) 1977 ss 3(1) (“decision to which this Act applies”), 5(1), 6(1), Schedule 1 item (s)

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, followed

CATHERINE ALEXIS TYDEMAN v CHILD SUPPORT REGISTRAR

N 700 of 1999

RYAN, LINDGREN AND FINKELSTEIN JJ
6 DECEMBER 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 700 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	CATHERINE ALEXIS TYDEMAN APPELLANT
AND:	CHILD SUPPORT REGISTRAR RESPONDENT
JUDGE:	RYAN, LINDGREN AND FINKELSTEIN JJ
DATE OF ORDER:	6 DECEMBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent’s 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 700 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	CATHERINE ALEXIS TYDEMAN APPELLANT
AND:	CHILD SUPPORT REGISTRAR RESPONDENT

JUDGE:	RYAN, LINDGREN AND FINKELSTEIN JJ
DATE:	6 DECEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1. In 1991 the appellant and her husband separated.  The appellant applied under the Child Support (Assessment) Act 1989 (Cth) (“the Act”) for child support in respect of the two children of the marriage. The Act establishes a mechanism for the determination of the financial support payable by parents for their children. The Child Support Registrar (“the Registrar”) dealt with the application and by a decision made on 12 August 1992 the husband became liable to pay, as from 22 July 1992, child support to the appellant under what the Act called an “administrative assessment”.

2. Part VIA of the Act empowered the Registrar to make a determination having the effect that the Act’s provisions relating to an administrative assessment of child support was to be “departed from”.

3. The appellant’s husband applied for such a determination.  That application was heard on 21 January 1993.  The appellant’s complaint throughout has been that she was not notified of the hearing, and, in consequence, did not participate in it, and that the Registrar was led into error by the husband as a result.  The Registrar disputes the appellant’s allegations and says that the appellant was present at the hearing, although by telephone.

4. At all events, on 27 January 1993 the Registrar determined that there be a departure from the administrative assessment for the period from 1 February 1993 to 19 November 1996 (this later date was the eighteenth birthday of the younger of the two children).  The effect of the departure was to reduce the child support that would otherwise have been payable by the husband.

5. The appellant applied on 29 March 1994 to the Family Court of Australia for an order reinstating the original decision of 12 August 1992. On 25 August 1994 Baker J dismissed that application and a cross-application by the husband. An application by the appellant for leave pursuant to s 102 of the Act to appeal from the dismissal of her application was dismissed by a Full Court of the Family Court on 9 August 1995.

6. The appellant filed an application in this Court on 8 September 1998 seeking an order under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) that the conduct of the Registrar in reaching his decision be reviewed and that the “decision made … on 27 January 1993 be reviewed and set aside”. By an amended application filed on 23 October 1999, the appellant sought review of the Registrar’s conduct in reaching his decision on 27 January 1993 and an order setting aside that decision. Under the ADJR Act the Court may review “a decision to which the [ADJR Act] applies” (s 5(1)) and may review conduct engaged in “for the purpose of making a decision to which the [ADJR Act] applies” (s 6(1)). A “decision to which [the ADJR Act] applies” is defined in s 3(1) to mean a decision of an administrative character made under an enactment, other than a decision included in the classes of decision set out in Schedule 1. One class of decision identified in Schedule 1 is “determinations made by the Child Support Registrar under Part VIA of the Child Support (Assessment) Act 1989”: see Schedule 1, item (s).

7. The respondent Registrar moved to have the application under the ADJR Act dismissed as incompetent on the ground that neither the conduct nor the decision of the Registrar was capable of review under the ADJR Act. The motion was heard by Katz J who, on 12 February 1999, ordered that the application be dismissed as incompetent and that the present appellant pay the Registrar’s costs. It is from that decision that this appeal is brought.

8. The appellant submits that the Registrar made a “decision” to make the “determination” in question, and that it is the decision of which she seeks review, not the determination. In this way, so her argument goes, item (s) of Schedule 1 to the ADJR Act has no application. That item, it is said, is confined to determinations made by the Registrar under Part VIA and the appellant is seeking to challenge, not his determination, but his preceding decision.

9. The appellant’s argument cannot be supported in law. The reasons can be stated shortly. First, the “decision[s] to which [the ADJR Act] applies” are defined in s 3(1) as decisions (including a “determination” – see s 3(5)) under an enactment, and in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Mason CJ said of the word “decision” (at 336):

   “ … other considerations point to the word having a relatively limited field of operation.   First, the reference in the definition in s. 3(1) to ‘a decision of an administrative character made … under an enactment’ indicates that a reviewable decision is a decision which a statute requires or authorizes rather than merely a step taken in the course of reasoning on the way to the making of the ultimate decision.  Secondly, the examples of decision listed in the extended definition contained in s. 3(2) are also indicative of a decision having the character or quality of finality, an outcome reflecting something in the nature of a determination of an application, inquiry or dispute or, in the words of Deane J., ‘a determination effectively resolving an actual substantive issue’.  Thirdly, s. 3(3), in extending the concept of ‘decision’ to include ‘the making of a report or recommendation before a decision is made in the exercise of a power’, to that extent qualifies the characteristic of finality.  Such a provision would have been unnecessary had the Parliament intended that ‘decision’ comprehend every decision, or every substantive decision, made in the course of reaching a conclusive determination.  Finally, s. 3(5) suggests that acts done preparatory to the making of a ‘decision’ are not to be regarded as constituting ‘decisions’ for, if they were, there would be little, if any point in providing for judicial review of ‘conduct’ as well as of a ‘decision’.”

10. His Honour also said (at 337):

    “ …. a reviewable ‘decision’ is one for which provision is made by or under a statute.  That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration.  A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.

    Another essential quality of a reviewable decision is that it be a substantive determination.  With the exception of s.3(2)(g), the instances of decision mentioned in s.3(2) are all substantive in character.  Moreover, the provisions in sub-ss.(1), (2), (3) and (5) of s.3 point to a substantive determination.  In this context the reference in s.3(2)(g) to ‘doing or refusing to do any other act or thing’ (emphasis added) should be read as referring to the exercise or refusal to exercise a substantive power.  I do not perceive in s.16(1)(b) or in par.(e) of Sched. 1 or par.(a) of Sched. 2 to the A.D.(J.R.) Act any contrary implication.  These exclusions from the A.D.(J.R.) Act or from s.13 appear to have been introduced for more abundant caution and it would be unwise to take too much from them.

    If ‘decision’ were to embrace procedural determinations, then there would be little scope for review of ‘conduct’, a concept which appears to be essentially procedural in character.”

11. If the Registrar can be said to have made a “decision” to proceed to make a determination, that decision was not of the kind described by Mason CJ: it was not a final, operative or determinative decision for the making of which the Act provided. The only decision satisfying that description was the Registrar’s determination of 27 January 1993.

12. Second, if the Registrar can be said to have made a “decision” to proceed to make a determination, that decision was part of the Registrar’s conduct engaged in by him for the purpose of his making the determination, and that conduct cannot be reviewed under s 6(1). The only conduct which may be reviewed under s 6(1) is conduct engaged in for the purpose of the making of a decision which is itself capable of review under the ADJR Act. As determinations made under Part VIA of the Act are expressly excluded from the scope of the ADJR Act, so also is conduct engaged in for the purpose of making such a determination. This follows from the clear opening words of s 6(1):

    “Where a person has engaged … in conduct for the purpose of making a decision to which this Act applies, a person who is aggrieved by the conduct may apply …”. (emphasis supplied)

13. For the above reasons, the appeal must be dismissed with costs.

14. On the hearing of the appeal there was considerable discussion of a matter touched on by counsel for the respondent before the primary judge and mentioned by his Honour in passing in his reasons for judgment. This was the availability to the appellant of relief under s 39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”).  His Honour said:

    “(I should, I consider, record here that Ms Tydeman's amended application sought only to invoke the jurisdiction which is explicitly conferred upon this Court by s 8 of the JRA [his Honour used “JRA” to refer to the ADJR Act] to hear and determine applications made to it under the JRA. Her amended application did not seek to invoke the jurisdiction conferred upon this Court by subs 39B(1) of the Judiciary Act 1903 (Cth) with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against (relevantly) an officer of the Commonwealth. In written submissions filed and served before the hearing of the motion to which I will refer below, the respondent (rather incautiously, as I thought) drew attention to that omission from Ms Tydeman's amended application and then made submissions as to what the Court should have done if the amended application had invoked its jurisdiction under subs 39B(1). Those written submissions did not, however, provoke any attempt by Ms Tydeman to invoke at the hearing of the motion, whether formally or informally, the Court's subs 39B(1) jurisdiction. Accordingly, I need not trouble myself to deal in these reasons with the respondent's hypothetical submissions as to what the Court should do in those circumstances.)”

15. In the course of the hearing of the present appeal, the appellant indicated that she had applied to this Court under the ADJR Act as what she understood to be her avenue of last resort in an endeavour to obtain a rehearing on the merits of the issues which she has consistently contended were the subject of a flawed adjudication by the Registrar. She claimed to have been unaware, until February 1999 when the hearing before Katz J took place, of the possible alternative avenue for relief afforded by s 39B of the Judiciary Act.  It should be noted that the appellant was represented at that hearing by counsel who, we have been told, has since died.

16. Subsection 39B(1) of the Judiciary Act provides that the original jurisdiction of this Court includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.  It appears to be indisputable that the Registrar is an officer of the Commonwealth within the meaning of that sub-section.  It would therefore be within the Court’s power to quash his decision made on 27 January 1993 by the grant of certiorari if procedural fairness had been denied to the appellant as she claims.  However, prerogative relief is discretionary and the appellant would have to overcome a number of obstacles, a significant one being delay, before she could obtain a prerogative writ addressed to the Registrar.

17. It would be inappropriate, particularly as we have not had the benefit of full argument from counsel for the respondent, who was not apprised that this alternative avenue for relief was to be discussed on the hearing of the appeal, for us to venture even a tentative view about the appellant’s prospects of success were she now to institute an application under s 39B. Our caution in that respect is reinforced by the fact that the appellant’s former husband would almost certainly have to be joined as a respondent to any such application.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated:             6 December 1999

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	Mr G T Johnson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	1 December 1999
Date of Judgment:	6 December 1999