Walters and Phelps and Anor
[2013] FCCA 1878
•12 November 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WALTERS & PHELPS & ANOR | [2013] FCCA 1878 |
| Catchwords: CHILD SUPPORT – Appeal – Application in a Case – Application for summary dismissal – where applicant argues that the Notice of Appeal is not competent – whether appellant seeking merits review – whether appeal on questions of law. PRACTICE AND PROCEDURE – Change of Venue – Application in the alternative to change venue to Townsville. |
| Legislation: Child Support (Registration and Collection) Act 1988, s.110B Federal Circuit Court Rules 2001 r.8.01 |
| Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 RL & D Investments Pty Ltd v Bisby [2002] NSWSC 1082 |
| Applicant: | MR WALTERS |
| First Respondent: | MS PHELPS |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | SYC 2097 of 2013 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 15 October 2013 |
| Date of Last Submission: | 15 October 2013 |
| Delivered at: | Sydney |
| Delivered on: | 12 November 2013 |
REPRESENTATION
| Solicitor for the Applicant: | Wilson/Ryan/Grose |
| Solicitors for the First Respondent: | Scanlan’s |
| Solicitor for the Second Respondents: | Program Litigation and Review Branch, Department of Human Services |
ORDERS
The Application in a Case filed on 11 October 2013 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Walters & Phelps & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 2097 of 2013
| MR WALTERS |
Applicant
And
| MS PHELPS |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an Application in a Case by the Second Respondent to an Appeal against a decision of the Social Security Appeals Tribunal. The Applicant is the Second Respondent to the Appeal.
The Applicant seeks the following Orders:
1. Pursuant to paragraph[1]110B of the Child Support (Registration & Collection) Act 1988, the notice of appeal (child support) filed in this Court by Ms Phelps on 19 April 2013 be dismissed, or in the alternative:
2. That the notice of appeal (child support) filed in this Court by Ms Phelps on 19 April 2013 be heard in another registry of this Court, namely the Townsville registrar[2] of the Federal Circuit Court.
[1] sic
[2] sic
3. For such further or other order as to this Court seems fit.
4. That the first respondent to this application in a case namely Ms Phelps pay the applicant’s costs of and incidental to this application.
The First Respondent, the substantive Appellant, has filed a Response seeking that the Application in a Case should be dismissed.
Submissions
It is the Applicant’s contention, set out in the Applicant’s Case Outline, that the Court has no jurisdiction to hear the Appeal, as it does not relate to a question of law. Instead, he contends that the Appellant is seeking to challenge the findings of fact made by the Social Security Appeals Tribunal. Under the provisions of s.110B of the Child Support (Registration and Collection) Act 1988, a party to a review by the SSAT may appeal to a Court having jurisdiction under the Act on a question of law.
The Applicant submits that the Appellant’s grounds of appeal do not go to questions of law but seek to revisit the merits of the decision made by the SSAT. The Applicant relied on this passage from the judgment of David Kirby J in RL & Investments Pty Ltd v Bisby[3]:
A finding of fact by a tribunal cannot be disturbed if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its finding, and there is evidence capable of supporting its inferences. Such a finding can be disturbed only (a) if there is no evidence to support its inferences, or (b) if the facts inferred by it and supported by evidence are incapable of justifying the finding of fact based upon those inferences, or, (c) if it has misdirected itself in law…
[3] [2002] NSWSC 1082
The Applicant also referred to the decision of Davies in the Supreme Court of Victoria in Zogiannis v Stevens[4] at [4]:
Where the grounds do no more than indicate that the subject matter of the proposed appeal invites reconsideration of the merits of the decision, the jurisdiction of the Court is not enlivened, even though the question of law identified may be expressed in judicial review terms. If the question of law properly analysed is not a question of law, the form of its expression does not turn it into a question of law. Questions of fact or questions of mixed fact and law are not turned into pure questions of law merely by embracing language that the Magistrate “erred in law” or by using formulaic language for grounds of judicial review.
[4] [2012] VSC 264
The Applicant also relies on the decision of Judge Coates in Barton & Gibb & Anor (SSAT Appeal).[5]
[5] [2013] FCCA 644
It is submitted that the grounds set out in the Amended Notice of Appeal do not raise questions of law and, as such, the Court has no jurisdiction to entertain the Appeal, including the accompanying application for a stay.
In the alternative, the Applicant seeks that the venue of the proceedings should be changed to Townsville and relies on his affidavit sworn on 2 October 2013. In paragraph [30] of his affidavit, he deposes as follows:
(a) It will be inconvenient for me to attend a court hearing in Sydney. I acknowledge that it will be inconvenient for Ms Phelps[6] to attend a court hearing in Townsville. Both of us are entitled to flights on [airline omitted]…
(b) Ms Phelps and I are entitled to discounted travel on [airline omitted]. Ms Phelps and I are able to request time out from [omitted] where we work, for time to attend court. As a result, there would be no loss of income for either of us…My lawyer has advised me that competent counsel practising in the family law field almost exclusively, are available in Townsville.
(c) Ms Phelps’s appeal has not been listed for final hearing. Depending on whether Ms Phelps’s appeal is summarily dismissed, I say that advice to me from my lawyer is that there would be no greater delay and perhaps there would be less delay, if the current proceedings were transferred to the Federal Circuit Court in Townsville.[7]
[6] Ms Phelps is the Appellant
[7] Affidavit of Mr Walters 2.10.2013 at [30(a)-(c)]
The Applicant also deposes that it is relevant that the parties’ twin sons reside with him in Townsville.
Conclusions
The Grounds of Appeal in the Amended Notice of Appeal are as follows:
1. THAT the Tribunal members erred when they failed to consider evidence before them, evidence available to them and the particular circumstances of the Applicant’s case that would have reflected the Applicant’s true income not determined by them.
2. THAT the Tribunal members erred when they failed to consider evidence before them that supported the Applicant’s assertion that the Applicant’s husband is mentally unstable, relies about 99% upon her income and could not support his daughter from another relationship if the Applicant did not pay his child support payments.
3. THAT the Tribunal members erred when they made a decision in the absence of material from which they could reasonably have been satisfied that the Applicant intended for the children to be educated at private schools and attend boarding school.
It is these grounds that the Applicant submits are not directed to questions of law at all, but are rather attempts at merits review of the Tribunal’s factual findings.
In Australian Broadcasting Tribunal v Bond[8]Mason CJ considered whether a finding of fact can amount to a reviewable decision and, if so, in what circumstances, saying:
…in ordinary circumstances, a finding of fact, including an inference drawn from primary facts, will not constitute a reviewable decision because it will be no more than a step along the way to an ultimate determination. Of course, an ultimate determination which depends upon a finding of fact vitiated by error of law or made without evidence is reviewable…[9]
[8] [1990] HCA 33; (1990) 170 CLR 321
[9] (1990) 170 CLR 321 at 340-341
The grounds of appeal in the Amended Notice of Appeal, although not drafted with quite the precision that one might have hoped for, but, taking a generous interpretation, the grounds appear to be “no evidence” grounds and thus constitute a claim of an error of law. This is not to say that any of the grounds will necessarily succeed at the hearing of the appeal, but, in my view, it is not appropriate to warrant summary dismissal:
An opinion of the Court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination. Even a weak case is entitled to the time of a court.[10]
[10] Lindon v Commonwealth (No.2) [1996] HCA 14; (1996) 136 ALR 251; 70 ALJR 541 at [14] per Kirby J
In the alternative, the applicant seeks a transfer of the proceedings to the Townsville Registry of the Court.
Change of venue is covered by Rule 8.01, which provides:
(1) A party who files an application or response in a proceeding may apply to have the proceeding heard in another registry of the Court.
(2) In considering an application, the Court must have regard to:
(a) the convenience to the parties; and
(b) the limiting of expense and the cost of the proceeding; and
(c) whether the matter has been listed for final hearing; and
(d) any other relevant matter.
In my mind, the inconvenience to the Applicant if the matter were to remain in Sydney would be approximately equivalent to the inconvenience to the Respondent/Appellant if the matter were to be transferred to the Townsville Registry.
There would appear to be some inconvenience occasioned to the Child Support Registrar if the matter were to be transferred.
A transfer would, to my mind, increase the expense to the Respondent/Appellant as well as to the Child Support Registrar.
The matter has not been listed for final hearing but it can be heard on Tuesday 10 December 2013 in this Registry. No evidence has been offered to show that the matter could be dealt with any earlier in Townsville.
This is not a case where it would appear that there will be any need for oral evidence to be taken. The matter will proceed purely on submissions. If it is inconvenient for the Applicant to travel to Sydney for the hearing, he may be excused if he is represented.
It is for these reasons that I decline to transfer the proceedings to Townsville.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 14 November 2013
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