Whittaker v Child Support Registrar - [2009] FCA 188

FEDERAL COURT OF AUSTRALIA
Whittaker v Child Support Registrar [2009] FCA 188
PRACTICE AND PROCEDURE – pleading – motion to strike out paragraphs of pleading – distinction between pleading of material facts and giving of “particulars”.
TORTS – direct interference with contractual relations by unlawful means – inducement of breach of contract – distinction between the two grounds of tortious liability – requirement as to alleged tortfeasor’s state of mind – pleading.
Child Support (Assessment) Act 1989 (Cth) ss 150B, 150D
Child Support (Registration and Collection) Act 1988 (Cth) ss 15, 16B, 16C, 17, 17A 72D, 72E 72I, 72J, 72K, 72M, 72O, 72U, 72X
Federal Court Rules O 4 r 6(2); O 11 rr 2, 16
Taxation Administration Act 1953 (Cth) s 8WB
Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (1995) 58 FCR 26 followed
Bruce v Odhams Press, Limited [1936] 1 KB 697 cited
H 1976 Nominees Pty Ltd v Galli and Apex Quarries Ltd (1979) 30 ALR 181; 40 FLR 242 cited
Hospitality Group Pty Ltd v Australian Rugby Union Ltd (2001) 110 FCR 157 cited
Lumley v Gye (1853) 2 El & Bl 216 (118 ER 749) cited
Luton v Lessels (2002) 210 CLR 333 applied
Northern Territory of Australia v Mengel (1995) 185 CLR 307 cited
OBG Ltd v Allan; Douglas v Hello! Ltd (No 3); Mainstream Properties Ltd v Young [2008] 1 AC 1 discussed
Ranger Uranium Mines Pty Ltd v Federated Miscellaneous Workers’ Union of Australia (1987) 89 FLR 349 cited
Sanders v Snell (1998) 196 CLR 329 cited
Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109 cited
Zhu v Treasurer of the State of New South Wales (2004) 218 CLR 530 cited
Weekes and Child Support Registrar [2006] FLC ¶93-273; [2006] FamCA 598 cited
Whittaker v Child Support Registrar (2000) 106 FCR 105 cited
Whittaker v Child Support Registrar [2002] FCA 1429 cited
Whittaker v Child Support Registrar [2002] FCA 1430 cited
Whittaker v Child Support Registrar [2003] FCAFC 114 cited
Whittaker v Child Support Registrar [2004] HCATrans 252 cited
MARK ALAN WHITTAKER and
ROTARY KILN SERVICES (AUSTRALASIA) PTY LTD (ABN: 51 128 856 431) v
CHILD SUPPORT REGISTRAR and COMMONWEALTH OF AUSTRALIA
NSD 204 of 2008
LINDGREN J
4 MARCH 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 204 of 2008

BETWEEN:
MARK ALAN WHITTAKER
First Applicant

ROTARY KILN SERVICES (AUSTRALASIA) PTY LTD (ABN: 51 128 856 431)
Second Applicant

AND:
CHILD SUPPORT REGISTRAR
First Respondent

COMMONWEALTH OF AUSTRALIA
Second Respondent

JUDGE:

LINDGREN J

DATE OF ORDER:

4 MARCH 2009

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The following paragraphs of the amended statement of claim filed on 15 August 2008 be struck out: 6, 7, 8, 9, 10, 11, 12, 13, 21, 23, 23A, 23B, 23C, 24, 25, 27, 28, 29, 30, 31, 32, 33 and 34.

2.The applicants not have leave to replead the following paragraphs of the amended statement of claim filed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] FCA 188
Decision Date: 4 March 2009

CaseChat Overview and Summary

The applicants in Whittaker v Child Support Registrar sought a declaration that the defendant did not have a child support liability under the Child Support (Assessment) Act 1989. The case was heard in a relevant Australian court, where the respondents moved for the proceeding to be dismissed in part and for certain paragraphs of the amended statement of claim to be struck out. The applicants opposed the motion, but the court found in favour of the respondents. The court considered the specific allegations in the amended statement of claim, including claims of false imprisonment and trespass, and determined that certain paragraphs were not properly pleaded and should be struck out without leave to replead. The court also found that the proceeding should be dismissed in so far as it sought the relief identified in para 8 of the further amended application. The applicants were granted leave to replead certain paragraphs, but were required to file a further amended statement of claim by a specified date, showing all amendments by underlining in the usual way.

The legal issues before the court included whether certain paragraphs of the amended statement of claim were properly pleaded and, if not, whether leave to replead should be granted. The court considered the requirements of the relevant legislation and case law in determining these issues. The court also considered whether the proceeding should be dismissed in part, and if so, whether the applicants should be granted leave to replead certain paragraphs. The court found that certain paragraphs were not properly pleaded and should be struck out without leave to replead, and that the proceeding should be dismissed in so far as it sought the relief identified in para 8 of the further amended application. The applicants were granted leave to replead certain paragraphs, subject to certain conditions.

The court's reasoning was based on its consideration of the relevant legislation and case law, as well as the specific allegations in the amended statement of claim. The court found that certain paragraphs were not properly pleaded, either because they did not comply with the requirements of the relevant legislation or because they did not set out a proper cause of action. The court also found that the proceeding should be dismissed in part because the applicants had not established a proper basis for the relief they sought. The applicants were granted leave to replead certain paragraphs, subject to certain conditions, in order to allow them an opportunity to cure any deficiencies in their pleadings. The court's outcome was that the proceeding was dismissed in part, certain paragraphs of the amended statement of claim were struck out without leave to replead, and the applicants were granted leave to replead certain paragraphs, subject to certain conditions. The applicants were also required to pay the respondents' costs of the respondents' motion.

Orders

Orders of the court

1. The following paragraphs of the amended statement of claim filed on 15 August 2008 be struck out: 6, 7, 8, 9, 10, 11, 12, 13, 21, 23, 23A, 23B, 23C, 24, 25, 27, 28, 29, 30, 31, 32, 33 and 34.

2. The applicants not have leave to replead the following paragraphs of the amended statement of claim filed on 15 August 2008: 21, 23A, 23B, 23C, 24, 25, 27, 28, 29, 30, 31, 32, 33 and 34.

3. The applicants have leave to replead the following paragraphs of the amended statement of claim filed on 15 August 2008: 6, 7, 8, 9, 10, 11, 12, 13, and 23.

4. The proceeding is dismissed in so far as it seeks the relief claimed in para 8 of the further amended application filed on 15 August 2008.

5. The applicants pay the respondents’ costs of the respondents’ motion brought by notice of motion filed on 12 September 2008.

6. Pursuant to the leave granted in para (3) above the applicants file any further amended statement of claim by 23 March 2009, showing all amendments by underlining in the usual way.

7. The proceeding be listed for directions on Friday 27 March 2009.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

LINDGREN J

By para 8 of the further amended application, the applicants seek a declaration that Mr Whittaker does not have a child support liability pursuant to the Assessment Act, or, in the alternative, a declaration that his liability is nil. Since paras 24, 25, 30, 32 and 33 of the amended statement of claim are struck out, without leave to replead, the proceeding should be dismissed in so far as it seeks the relief identified in para 8 of the further amended application.Conclusion In the result there will be orders:(a)that the proceeding be dismissed in so far as it seeks the relief identified in para 8 of the further amended application;(b)that paras 21, 23A, 23B, 23C, 24, 25, 27, 28, 29, 30, 31, 32, 33 and 34 of the ASC be struck out without leave to replead;(c)that paras 6, 7, 8, 9, 10, 11, 12, 13, and 23 of the amended statement of claim be struck out with leave to replead;(d) that the applicants pay the respondents’ costs of the respondents’ motion. If the leave to replead is to be exercised, this must be done by the filing of a further amended statement of claim showing the amendments by underlining in the usual way. The expression “in the premises” should not be used unless it is clear that the reference is to that which immediately precedes it.

Ratio Decidendi

Legal Principle Established

Established by: LINDGREN J

By their motion, the respondents also seek summary dismissal of the proceeding in so far as it seeks the relief claimed in para 8 of the further amended application. Paragraph 8 reads as follows:8.that the Court declare that the applicant [sic – First Applicant] does not have a child support liability pursuant to the Child Support (Assessment) Act1989 or in the alternative that the liability is nil; …CONSIDERATION Argument took place with reference to various groups of paragraphs of the ASC, and I will conform to counsel’s approach. False imprisonment and trespass – paragraphs 6, 7, 12 and 13 These paragraphs allege false imprisonment and trespass to goods (and perhaps trespass to the person – see below). Paragraph 6 relates to the events of 15 February and para 7 to those of 16 February. Apart from the difference in dates, they are identical. It will therefore suffice if I set out paras 6, 12 and 13, which are as follows:6.On 15 February 2008, whilst the First Applicant was performing the employment contract in furtherance of the supply contract and after the carriage contract had commenced and the First Applicant was attempting to pass through the Immigration Passport Checkpoint at Sydney International Airport to board Singapore Airlines flight SQ232, the Second Respondent by its servants or agents: approached the First Applicant at Kingsford Smith International Airport, Sydney and thereafter deprived him of his liberty, restraining him and threatening him that should he proceed further through the airport whereby he reasonably feared that unless he complied with such directions his liberty and person were threatened such that he would be compulsorily detained prosecuted and imprisoned, and further then seized the First Applicant’s passport and boarding pass for flight SQ232, and retained his travel documents including his passport and boarding pass and directed that the carrier discharge the Applicant’s luggage including his equipment and tools of trade from the aircraft of Singapore Airlines conducting flight SQ232, whereby the First Applicant was falsely imprisoned and/or the Respondents and each of them trespassed upon the First Applicant and/or his personal property.Particulars:a.The Respondents and each of them by their servants or agents wrongly detained the First Applicant; andb.without explanation, retained the First Applicant’s Passport, completed Immigration document and Airline Boarding Pass; andc.instructed the First Applicant that he was to remain in a particular confined area of the Immigration zone within sight of the servants or agents of the Second Respondent as well as the general public passing through the Immigration zone; andd.further instructed the First Applicant that he was to remain in a particular confined area of the immigration zone for an indefinite length of time whereby the First Applicant reasonably feared that unless he complied with such directions his liberty and person were threatened such that he would be compulsorily detained, prosecuted and imprisoned; ande.later instructed the First Applicant that he was to remain in a particular confined area of the Immigration zone until Federal Police Officers arrived; andf.refused to answer the questions of the First Applicant or provide information to the First Applicant regarding the nature of the matter or as to why he was being detained; andg.shortly thereafter approached the First Applicant bearing firearms; andh.proceeded to ask the First Applicant questions in full view of the general public passing through the Immigration zone; andi.stood side by side with arms folded and in a position where the First Applicant felt further restrained, threatened and intimidated; andj.further refused to allow the First Applicant to leave the area or to board the plane or to answer the First applicant’s questions when asked; and k.directed that the carrier discharge the Applicant’s luggage including his equipment and tools of trade from the aircraft of Singapore Airlines conducting flight SQ232; andl.refused to provide any reason for detaining the First Applicant or for preventing the First Applicant from going abut the First Applicant’s business or from boarding the Singapore Airlines flight SQ232; andm.finally instructed and or ordered the First Applicant to leave the Immigration zone and further to leave the Sydney International airport.…12.Further, or alternatively, on 15 and again on 16 February 2008, the Second Respondent by its servants or agents, falsely imprisoned the First Applicant at the Kingsford Smith International Airport, whereby he suffered loss and damage.13.Further, or alternatively, on 15 and 16 February 2008 the Second Respondent by its servants or agents trespassed upon the First Applicant’s goods by retaining his documents and removing or arranging for the removal of his luggage and equipment from the aircraft at the airport. It is noted that paras 12 and 13 do not in terms allege trespass to the person, although this is alleged in terms in the concluding words of paras 6 and 7.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 204 of 2008

JUDGE:	LINDGREN J
DATE OF ORDER:	4 MARCH 2009
WHERE MADE:	SYDNEY