Whittaker v Child Support Registrar
[2004] HCATrans 252
[2004] HCATrans 252
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Brisbane No B43 of 2003
B e t w e e n -
MARK ALAN WHITTAKER
Applicant
and
CHILD SUPPORT REGISTRAR
Respondent
Application for special leave to appeal
KIRBY J
HAYNE J
TRANSCRIPT OF PROCEEDINGS
AT BRISBANE ON WEDNESDAY, 23 JUNE 2004, AT 3.33 PM
Copyright in the High Court of Australia
MR M.A. WHITTAKER appeared in person.
MS M.M. BRENNAN: May it please the Court, I appear for the respondent. (instructed by Australian Government Solicitor)
KIRBY J: Yes, Mr Whittaker.
MR WHITTAKER: Your Honours, this special leave application arose out of a decision in the Federal Court of 24 October 2002 which was appealed and heard before the Full Court on 27 May. The approach adopted by this Court in Hendy is that I have to show grounds for doubting the correctness of the decision of the Full Court and thereby persuade the Court that the interests of justice require a grant of special leave. The matters set out in section 35A of the Judiciary Act:
In considering whether to grant an application for special leave to appeal to the High Court under this Act or under any other Act, the High Court may have regard to any matters that it considers relevant but shall have regard to:
(a) whether the proceedings in which the judgment to which the application relates was pronounced involve a question of law:
(i) that is of public importance, whether because of its general application or otherwise; or
(ii) in respect of which a decision of the High Court, as the final appellate court, is required to resolve differences of opinion between different courts, or within the one court, as to the state of the law; and
(b) whether the interests of the administration of justice ‑ ‑ ‑
KIRBY J: I think you can take it we know those requirements. I suppose it is helpful for you to get it in your mind.
MR WHITTAKER: I will refer to the decision of the Full Court in which, essentially, they maintained that the ‑ ‑ ‑
KIRBY J: Could you give Mr Whittaker a clean glass and some water. This is a clean glass at the end of the bench there.
MR WHITTAKER: I have a clean glass here.
KIRBY J: You never know at the Bar table, Mr Whittaker. It might be one taken from the Bench.
MR WHITTAKER: Thank you. Essentially, I had this matter heard in the Federal Court before Justice Dowsett. Now, the respondent, in defence of it, raised the matter of Luton v Lessels, which was heard in this Court, and you were on that Bench at the time, your Honour, I am aware. Now, when the matter went to the Full Court, they referred to that and stated that they saw no error in the trial judge’s approach in relying on that decision. Now, my contention is essentially with that decision, the decision in Luton, which I understand has been back here in the matter of Hendy to some extent quite recently.
KIRBY J: Well, you do not like the decision in Luton, but it is a relatively recent decision of the Court and I do not think there were any dissentients in the decision ‑ ‑ ‑
MR WHITTAKER: There were no dissents.
KIRBY J: It seems very unlikely that the Court would want to reconsider or cast doubt on what was said in that case so soon after it was decided.
MR WHITTAKER: Well, I submit the Court may want to, your Honour, after I make my submissions here.
KIRBY J: Yes. Just let me get it clear. Do you suggest that your case is in some way distinguishable from Luton?
MR WHITTAKER: I suggest it is, yes.
KIRBY J: Well, maybe you should concentrate first on that point and see if you cannot convince us of that, because then you do not come up against the iceberg. If you come up against the iceberg, you are in a few difficulties.
MR WHITTAKER: Yes, I would suggest it is not a very big iceberg, anyway. My case is distinguishable ‑ ‑ ‑
KIRBY J: That is what they said on board the Titanic.
MR WHITTAKER: Yes. My contention is that the legislation has been through a number of structural amendments. There were amendments in 1998 and specifically amendments in 2001 that were referred to extensively in the transcripts, in the submissions of both the applicant and the learned solicitor for the Commonwealth in that matter, particularly where the Commissioner of Taxation was removed from section 10(2) of the Registration and Collection Act. Now, my contention is, firstly, that was only a nomination, he had no powers of commissioner in his role as Registrar. The powers were quite clearly conferred on the Registrar pursuant to section 11 of the Registration and Collection Act.
There was nothing in any taxation legislation that gave the Commissioner powers under the child support legislation. All he in fact relied on was 8WD of the Taxation Administration Act which set forth that it was not a statutory offence to use tax file numbers, and pursuant to section 17 of the Privacy Act the Federal Privacy Commissioner issued guidelines which are statutory instruments disallowable under the Acts Interpretation Act that set forth that a taxation Act for the purpose of those guidelines was an Act for which the Commissioner of Taxation had general administration, including to child support statutes, when in fact the Commissioner at no time had general administration. It was the Registrar. The powers were conferred on the Registrar under the Registration and Collection Act and under the Assessment Act.
Now, in 2001, Schedule 5, administrative arrangements of the Child Support Legislation Amendment Act 2001 (Cth), the Commissioner was removed from section 11(2) and replaced by a general manager or senior SES employee. Section 11 removed the Registrar as the person having general administration and inserted the Secretary to the Minister for Community and Family Services, and by ‑ ‑ ‑
HAYNE J: Explain to me, would you, what the relevance of these particular changes is to the challenge to the correctness of what the Full Court did?
MR WHITTAKER: Yes, your Honour, I will get to that sequentially. Now, by section 19 of the Administrative Arrangements Act 1987 (Cth), as amended, the powers of general administration are now conferred back from the Secretary onto the Registrar, so the Registrar still effectively has general administration. Now, another amendment in 2001 was that subparagraph (ga) was inserted into section 202 of the Income Tax Assessment Act, making one of the reasons I have applied for a tax file number for the purpose of facilitating the administration of the child support legislation. Now, also sections 150B, C and D were inserted into the Child Support (Assessment) Act and sections 16B and C were inserted into the Registration and Collection Act, authorising the Registrar to request, but not compel, a person to provide their tax file number and to ‑ ‑ ‑
KIRBY J: But can I ask what is the relevance of these changes, which have happened more recently, to an activity of the Registrar as far ago as 1994? Because it was in 1994 that the relevant acts of the Registrar were performed. We would be concerned with the legislation as it stood at that time ‑ ‑ ‑
MR WHITTAKER: That is correct.
KIRBY J: ‑ ‑ ‑ we would not really be concerned with these. They only arise at a later stage ‑ ‑ ‑
MR WHITTAKER: It was not the case in Mr Luton’s matter. You dealt with the legislation as it stood then.
KIRBY J: No, we would have dealt with it as it stood at the time.
MR WHITTAKER: Well, not from my reading, your Honour. It was dealt with prior to the Commissioner of Taxation being removed, after the Commissioner was removed, yes.
KIRBY J: It is always possible that even the High Court can make mistakes of that kind, but we are always pretty vigilant against it.
MR WHITTAKER: Yes. I will point another one out shortly, too, that is quite substantial, your Honour, in relation to collateral review of these assessments. Now, prior to 2001, there was no provision for the Registrar to exercise powers to create new rights and obligations. He simply affected existing rights by creating assessment, because there was essentially nothing there. They were relying on the Commissioner of Taxation being there and his use of the tax file numbers to create new rights and obligations, whereas he simply created the assessment and it became binding and conclusive from that point.
KIRBY J: Your point is a judicial power point, is it? You are saying the Registrar invaded the judicial power of the Commonwealth.
MR WHITTAKER: Yes.
HAYNE J: Well, where do we find that referred to anywhere in the application book?
MR WHITTAKER: In the application book?
HAYNE J: Yes, either at first instance, the appeal to the Full Court, or in the draft notice of appeal here. Where do we find the references?
MR WHITTAKER: That is in the reasons of Justice Dowsett, I think, page 7, paragraph 7.
HAYNE J: Yes.
MR WHITTAKER: You see where he says, right at the very bottom, and then over onto page 8:
the present applicant’s criticism. He raises a number of points of complaint. The first is that some of the provisions of the Assessment Act, particularly those relating to the acceptance of an application and assessment, require the exercise of the judicial power of the Commonwealth and that they have been inappropriately conferred upon the Registrar. Such an argument is impossible to mount in face of the decision of the High Court in Lutonv Lessels –
I would also then refer your Honours to several statements made in relation to whether or not these assessments are open to collateral review. Your Honour, you said at paragraph 129:
It follows that before any debt arising under the Assessment Act may be enforced by execution, there is interposed an “independent exercise of judicial power”.
Now, I would say there is no independent exercise of judicial power, because if the matter goes to enforcement by the receiving power pursuant to section 79 of the Assessment Act or under section 113 of the Registration and Collection Act, the only recourse is back to an application, a de novo application, under section 116. Now, that application is subject to grounds set out in section 117. Those grounds are so severely restricted they essentially give a court no jurisdiction.
So I would say the statement made by almost everyone on the Bench that a court has broad powers to review an assessment is entirely wrong. I would point your Honours, in that respect, to the decision, paragraph 9, in St Justins Properties. I hope I do not offend the Court with this, but the basis of your Honours’ sitting at the Bench there is understanding the distinction between power and authority. Where the jurisdiction is that severely restricted, as it is in the grounds in section 117(2), and where a decision of the Full Court of the Family Court has further qualified the statement preceding those grounds, which require an exceptional circumstance before a court can exercise jurisdiction, I would say that there is very limited collateral review of any decision.
A court may have broad powers, that may be correct. It is actually half correct, because those powers cannot be exercised in probably 95 per cent of cases. Those grounds are set out into three separate categories, your Honours, in section 117(2). The first set of grounds relate to whether the paying parent has a commitment to other people, another child or so forth. The second set of grounds are in section 117(2)(a)(i), (a)(ii), (a)(iii)(A), (a)(iii)(B) and (a)(iv). The second set of grounds set out that a person may ask a court to review an assessment if they have a specific commitment to the child, such as special education, medical circumstances or something. They are set out in section 117(2)(b)(i)(A), (b)(i)(B), (b)(i)(C) and (b)(ii).
The third grounds relate to justice and equity. They are section 117(2)(c)(i), (c)(ii), (c)(iii) and (c)(iv). The problem is that the first two of them are out entirely, because they have very specific circumstances. The fourth one is out also. The only one that can relate remotely to general justice and equity is 117(2)(c)(iii). The problem is, it contradicts the process that the court follows. It can only allow a person to have a reduction because of their financial circumstances, but the process followed by the Family Court in determining child support matters is set out in the matter of Mee and Ferguson and referred to in Gyselman, the authority I have provided, that is, that the court must first determine the proper needs of the child, and that is determined on the basis of facts put before the court.
Your Honours would be aware that the court generally has two sets of figures, maintained by the Australian Institute of Family Studies under the statute, that they rely on when parties do not provide their own evidence on the cost of children. Now, what a court does is it firstly determines what the child’s needs are, secondly – I have to find this because I have forgotten – I actually have copies of that case here somewhere, Mee and Ferguson.
KIRBY J: I have a feeling a lot of these matters were canvassed in this Court in Luton v Lessels.
MR WHITTAKER: Well, there is no reference to it, your Honour. The matter of Gyselman, there is no reference to that. That is where the Full Court determined that in the ordinary run of cases, the formula cannot be reviewed, an assessment cannot be reviewed, unless there is an extraordinary circumstance, and if your Honour were to substitute ‑ ‑ ‑
KIRBY J: But that still keeps the judicial power, as it were, in reserve in the court.
MR WHITTAKER: I would say not, your Honour. I can make the application ‑ ‑ ‑
KIRBY J: You point out that there are practical problems, but the point of the operation of the constitutional theory of the relative borderline, which is sometimes difficult to see, between the administrative and the judicial power ‑ ‑ ‑
MR WHITTAKER: I would say that is absolutely wrong, your Honour. If you were to read those grounds, you will see that it is no point putting in a ground that I may make an application if I fly to the moon flapping my arms. That does not make it valid and these grounds are not much better than that. They are that restricted that virtually nobody can have an assessment reviewed. If you were, for example, to substitute 100 per cent for 18 per cent in the formula and I were a normal person on a normal wage, I cannot have that 100 per cent of my gross reviewed. I am bound to pay it and to pay taxation on top of that. That is the fact of the matter. There is no way of reviewing this.
Your Honour, I will point out that that has been agreed by the respondent’s counsel in two other matters where I have attended, one recently before the Full Court of the Family Court in the matter of Weekes v Child Support Registrar and one in the Federal Court in New South Wales, Torning v Child Support Registrar, where counsel agreed on both occasions that these grounds are very restrictive and there is absolutely no way that there is review of an assessment unless there is an extraordinary circumstance, such as that the child has some special medical condition or so on. I suggest in my submissions that the court has no way of overriding those statutory grounds, in the authority of Thomson Australian Holdings. I have cited that, I think, in my submissions.
So, generally speaking, your Honour, I am saying that prior to 2001, before the Registrar was given authority to request my tax file number, I would ask your Honour to explain how in fact the Registrar created new rights, because there was no provision there for the Registrar to do so. It was simply – what appeared to me in that decision looked like pure rhetoric, there was no reasoning behind it, there was no explanation of how those rights were created.
Now, as far as the collateral review goes, if the debt is registered to the Commonwealth under the Registration and Collection Act and the Commonwealth takes me to court to enforce that and I am a public servant earning $40,000 a year, I cannot have that reviewed. That is enforceable with a rubber stamp, because I cannot ask a court to look at that assessment, other than superficially to dismiss the application. That is a fact.
Now, I would also go to another matter raised in Luton, where the submissions of the Commonwealth were that there was no financial interest to the Commonwealth in this. I would say there is a substantial financial interest, your Honours. In section 1069 of the Social Security Act that amount registered as an assessment is taken into account as maintenance income for family tax benefit B and any amount, when it is taken into account, that amount of income is reduced or an amount is withheld from that maintenance when it is collected and recouped into consolidated revenue. The Commonwealth also has the ability to impose penalties and the Registrar is bound to ‑ ‑ ‑
KIRBY J: But this was part of the scheme to make sure that ‑ ‑ ‑
MR WHITTAKER: I know it is part of the scheme, your Honour.
KIRBY J: ‑ ‑ ‑ parents who have children should give support to them, not throw them out to depend on social security.
MR WHITTAKER: I understand that, your Honour, but the problem being – I refer to it as a scam, not a scheme – the problem being it is not intended to make me a slave. I am obligated, morally and legally obligated, to support my children. I am not obligated to support the superannuation and salaries of the bureaucrats who administer the scheme and that is what those figures are based on, the cost of administering the scheme. Ninety dollars per week they have to collect, just to cover the costs of administering the scheme. That is a fact. Now, so many people are falling out of the scheme because they are collecting excessively and it is so inherently regressive that ‑ ‑ ‑
KIRBY J: Subject to the Constitution, you are obligated by the scheme which the Parliament of the Commonwealth has put in place.
MR WHITTAKER: That is correct, and I am saying the Constitution strikes it out. Firstly ‑ ‑ ‑
KIRBY J: Yes, well, I understand that. I think we understand that and we have your written submissions and your time is up. You have not addressed the other issue, that is to say, the merits of your complaint concerning the notice given by the Registrar to you, but you have written submissions on that and we have read those submissions.
MR WHITTAKER: Yes, your Honour.
KIRBY J: You might just sit down for the moment. We are going to call on Ms Brennan to deal with the matter of the constitutional invalidity that is raised by Mr Whittaker. He says that certain matters were either overlooked in Luton v Lessels or the legislation had been changed and that those changes of legislation affect the authority of that decision in his case. What do you say in relation to those two submissions?
MS BRENNAN: A couple of matters, your Honour. Firstly, can I point your Honours’ attention to the actual application which is the subject matter of the proceedings. That application, at application book page 1 to 3, seeks orders solely in relation to the Registrar’s function in accepting an application. These proceedings do not concern any other function of the Registrar. They do not concern the function of the Registrar, for example, to make the assessment, to enforce it, to impose penalties ‑ ‑ ‑
KIRBY J: That is right, but, as I understand it, the applicant raises two points in contest to the Registrar’s receiving the application.
MS BRENNAN: Yes.
KIRBY J: The first is the factual point that he was not given notice in accordance with the scheme. The Federal Court said, well, even if that is so, and the primary judge was inclined to accept it, it did not matter because he thereupon came along and asked for variation and thereby, as it were, accepted the application, indicated he was on notice, pursued his rights under the Act and only subsequently came back and said, “Well, you can’t do that anyway because I haven’t given my consent”. So that is the first point, and the Court does not need your assistance on that point.
MS BRENNAN: All right, thank you.
KIRBY J: But on the second point he says that the Registrar is invading the judicial power and cannot act in that manner because that is contrary to the separation of powers in the Constitution. You say, yes, but Luton v Lessels decides to the contrary. The applicant says, but Luton v Lessels overlooked certain matters in the legislation, including matters that have been enacted since, and therefore the Court might like to have another look at the matter. Now, what do you say to that last point?
MS BRENNAN: Your Honour, I could take you to paragraph 89 of your decision in Luton v Lessels, and there it is noted that:
Several amendments have been made to the Acts whose validity is in question in these proceedings. The questions in the case stated do not identify the date at which the issue of validity is to be determined –
though if you went back to the facts of this case, it is a similar time period as Mr Whittaker –
However, it was not disputed that the answers could be given by reference to the legislation as it now stands.
So Luton v Lessels did look at the legislation that had the amendments of 1998 and ‑ ‑ ‑
KIRBY J: The events of this matter were 1994 or thereabouts, were they not?
MS BRENNAN: Yes, 1994. Now, so far as the provisions concerned in relation to the Registrar’s function in accepting an application, there are no relevant amendments. There have been some minor amendments that would be noted on the CCH copy of the legislation that I had sent to the Court yesterday, but those amendments do not affect the rights of the carer or the liable party. They are more grammatical amendments to those particular provisions. The 1998 ‑ ‑ ‑
KIRBY J: Anyway, your point is, whatever may have supervened in relation to a CES officer or giving powers to them, that is completely irrelevant to the challenge to the right of the Child Support Registrar to accept an application back in 1994 in respect of the assessment of child support for Mr Whittaker’s children.
MS BRENNAN: Completely.
KIRBY J: And that may be the subject of a later or further or different application, but it has nothing to do with this case. If there have been changes in the legislation, and if they affect a party, then the parties may have rights or they may not, but it is not this case.
MS BRENNAN: It is not this case, and, your Honour, the passages that I noted on part A of the respondent’s list – they are the passages in the decision of Luton v Lessels that expressly refer to the Registrar’s function of accepting an application for child support assessment, with the qualification that the first paragraph mentioned showed the total scope of the decision in Luton v Lessels, which is the complete iceberg for Mr Whittaker in this case.
KIRBY J: Yes, we do not need any more assistance, Ms Brennan.
MS BRENNAN: Thank you.
KIRBY J: Yes, Mr Whittaker.
MR WHITTAKER: Your Honour, it all flows from the acceptance of the application. Once that is accepted, the Registrar is bound to follow on with ‑ ‑ ‑
KIRBY J: That is true, but in your case it was accepted in 1994 and you proceeded, accepting it yourself ‑ ‑ ‑
MR WHITTAKER: I cannot accept it if it contravenes the Constitution.
KIRBY J: If it contradicts the Constitution, it is not valid.
MR WHITTAKER: That is correct.
KIRBY J: But the issue is whether the decision of the Court in Luton’s Case forecloses you from arguing that point. You have said, well, there have been some amendments, but those amendments did not come into force until afterwards, and, in any case, the fact that there had been amendments was noted by the Court in paragraph 89 of the reasons.
MR WHITTAKER: So if this Court makes a decision that is fatal to 700 Australian fathers a year, that cannot be reopened in a subsequent proceeding when it is raised?
KIRBY J: It can be reopened, but we sit here ‑ ‑ ‑
MR WHITTAKER: That is what I am asking, your Honour.
KIRBY J: I realise that, and I realise that this is an important case for you, and no doubt for other people, but we sit here ‑ ‑ ‑
MR WHITTAKER: A couple of million.
KIRBY J: We sit here at the gateway and we have to assess whether, in the light of this recent decision of a Full Court, dealing with the constitutional validity of the Act in a big challenge to it, it is likely to be reopened by the Court.
MR WHITTAKER: Yes, your Honour. How much time do I have? Because I have things to say.
KIRBY J: You have a few minutes.
MR WHITTAKER: Yes. Well, to describe that Luton decision in layman’s terms, your Honours, I would have to say it is an absolute shocker. I mean, clearly, every one of the Justices that sat on that Bench stated that that decision was open to collateral review, every single one, and I can point you to a couple of paragraphs.
KIRBY J: Well, it is, but you point out that it is a modified – it is not a very broad review and it has ‑ ‑ ‑
MR WHITTAKER: That is an overstatement.
KIRBY J: Or an understatement, depending on your point of view.
MR WHITTAKER: Understatement, yes, I stand corrected.
KIRBY J: That is understood, but still the…..are there. They still have supervision under the Act.
MR WHITTAKER: That supervision cannot be exercised. I mean, what is the point of making an application if the court only has jurisdiction to dismiss it? How is that supervision, your Honour?
KIRBY J: Generally courts, if there is a perception of injustice within the law, find ways to deal with it.
MR WHITTAKER: There is no way, your Honour. I pointed you to that before. Thomson Australian Holdings, which is essentially the basis of your Honour sitting in – well, that is not, but when a specific statute invests the court with jurisdiction in matters of a particular class and does so in such a way as to limit the power of the court to grant relief of a particular kind, there is no basis for transcending that limitation by recourse to general provisions.
KIRBY J: But that is a power the Parliament has under the Constitution, subject to Chapter III, the power to define the powers of the court.
MR WHITTAKER: That is correct, which has happened in this case, but if it restricts it to a point where it then makes a decision by an administrative body binding and conclusive, then I would say that there is another problem that is being created. Parliament has the power to restrict it. They exercise that power. By doing that, they have rendered the legislation fatal in that respect. They have to be open to collateral review. I mean, that is clear. You referred to Breckler in a number of places, your Honour, about this particular aspect, how the decisions of the Superannuation Commissioner in Breckler, how they are not binding and conclusive. Well, in this case they clearly are, in the vast majority of cases.
I also add that when your Honours hand your decision down, if you could just point me to this mysterious factum that existed before 2001 empowering the Registrar to create new rights and obligations. I mean, that to me is absolutely ridiculous. There was no power. The Commissioner was there in a bogus role – the Commissioner of Taxation – and I can point you to the transcript where you inquired of the learned solicitor, your Honour, in relation to this, and his answer was, “Who? I don’t know who you are talking about”, essentially, around the 1060 mark, from 1546 on and then from 2649 on. “Who is this mysterious Registrar? He is now an officer of the Department of Social Security, is he?” This is you, your Honour. Previous to that, “Now, this Registrar was originally the Commissioner of Taxation wearing another hat”.
I mean, the learned solicitor was asked to assist the Court more than he was and I would suggest he was very economical with that assistance, especially in regard to the position of the Commissioner of Taxation. He avoided answering that. He did not want that examined by the Court because before that, before the Commissioner came in, there was no authority for the Registrar to make any decision because it affected my existing right to property. Unless your Honours can point out in your decision how that is otherwise ‑ ‑ ‑
HAYNE J: Mr Whittaker, this is a particular application for special leave to appeal against a particular order.
MR WHITTAKER: Yes, your Honour.
HAYNE J: It is not the occasion for a complete review of the whole of the operation of the Act.
MR WHITTAKER: I would suggest that may be necessary, though, in the future, your Honour. What I am suggesting is that my application was dismissed primarily on the basis of this Luton matter, and I would say that that decision is conclusively wrong. The Act is quite different now ‑ ‑ ‑
KIRBY J: Well, we understand that, Mr Whittaker.
MR WHITTAKER: Yes.
KIRBY J: We have your submissions, we have read your submissions and you have put your oral submissions very forcefully. We understand what you have to say. Your time is up.
MR WHITTAKER: Yes, your Honour.
KIRBY J: Thank you very much.
In the Federal Court of Australia, the applicant sought an order for certiorari to quash a decision of the Child Support Registrar accepting an application for an assessment of child support. That application had been made under the Child Support (Assessment) Act 1989 (Cth). The primary judge in the Federal Court rejected the application for relief. The application was founded on two grounds: first, an alleged failure of the Registrar to follow the notice provisions of the Act; secondly, the alleged constitutional invalidity of the Act. An appeal to the Full Court of the Federal Court was then taken; but it was dismissed. The applicant now seeks special leave to appeal to this Court.
It is appropriate to take first the ground of constitutional invalidity, because that is the one which the applicant has primarily argued before the Court today. In the Federal Court, the conclusion was expressed that that question was substantially determined by this Court’s decision in Luton v Lessels (2002) 210 CLR 333. We see no prospects that this Court would wish to reconsider or modify or re‑express its finding there that the child support legislation is constitutionally valid. Nor are we convinced that any changes in the legislation, referred to by the applicant in Court today, affect the application of the Luton principle to the Act as applicable in his case.
So far as the ground of non‑compliance with the notice provisions of the Act in section 34 are concerned, we see no prospects of success in an appeal from the Full Court of the Federal Court. The primary judge was willing to accept that notice may not have been given to the applicant. However, he noted that by 3 November 1994 the applicant had come to hear of the decision to accept the application. The applicant subsequently applied to vary the assessment, but he did not then challenge it. The point is therefore factually and legally meritless. Discretionary relief would not be given in such a case; still less would it attract a grant of special leave to appeal to this Court.
Special leave is therefore refused. Is there an application for costs?
MS BRENNAN: There is an application for costs, yes, your Honour.
KIRBY J: Special leave must be refused with costs. The Court will now adjourn.
AT 4.09 PM THE MATTER WAS CONCLUDED
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