Whittaker v Child Support Registrar (No 1)

[2010] FCA 726

FEDERAL COURT OF AUSTRALIA

Whittaker v Child Support Registrar (No 1) [2010] FCA 726

Citation:		Whittaker v Child Support Registrar (No 1) [2010] FCA 726
Appeal from:		Whittaker v Child Support Registrar [2010] FCA 43
Parties:		MARK ALAN WHITTAKER and ROTARY KILN SERVICES (AUSTRALASIA) PTY LTD v CHILD SUPPORT REGISTRAR and COMMONWEALTH OF AUSTRALIA
File number(s):		NSD 189 of 2010
Judges:		PERRAM J
Date of judgment:		9 July 2010
Date of hearing:	9 July 2010
Date of last submissions:	9 July 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	3
Counsel for the Appellants:	Mr P King
Solicitor for the Appellants:	McKells Solicitors
Solicitor for the Respondents:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 189 of 2010

BETWEEN:

MARK ALAN WHITTAKER
First Appellant

ROTARY KILN SERVICES (AUSTRALASIA) PTY LTD
Second Appellant

AND:

CHILD SUPPORT REGISTRAR
First Respondent

COMMONWEALTH OF AUSTRALIA
Second Respondent

JUDGE:	PERRAM J
DATE OF ORDER:	9 JULY 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The notice of motion dated 28 June 2010 be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 189 of 2010

BETWEEN:

MARK ALAN WHITTAKER
First Appellant

ROTARY KILN SERVICES (AUSTRALASIA) PTY LTD
Second Appellant

AND:

CHILD SUPPORT REGISTRAR
First Respondent

COMMONWEALTH OF AUSTRALIA
Second Respondent

JUDGE:	PERRAM J
DATE:	9 JULY 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This appeal is presently fixed for hearing before a Bench comprising the Chief Justice, Moore J and myself on 23 and 24 August 2010.  On 25 August 2010 there is another appeal listed before Ryan, Mansfield and Rares JJ called Duarte v Australian Maritime Safety Authority and in which counsel for the appellant, Mr King, is also briefed to appear.  The appellant applies by a notice of motion dated 28 June 2010 for an order that the hearing of this appeal on 23 and 24 August 2010 be vacated. The hearing dates for that appeal were fixed following consultations between the appeals registrar and the parties.  Those consultations involved ascertaining the dates upon which counsel were available and fixing the appeals accordingly.

2. By a letter dated 14 May 2010 the dates were confirmed in both appeals.  It now appears that at the time the date was fixed counsel for the appellant was briefed to appear in a trial which was due to start on 19 July 2010 before Pembroke J of the New South Wales Supreme Court.  I have been informed from the bar table that that trial is to be of five weeks duration.  An application was made to vacate the hearing before Pembroke J, which was denied and instead has resulted in the adjournment of those proceedings for a period of one week; that is, the trial will now commence on 26 July 2010, whereas previously it was due to commence on Monday, 19 July 2010.  The consequence of that adjournment and the fact that the trial is of five weeks duration is that the hearing of that case will now overlap with the two appeals which are to be heard in this court commencing on 23 and 25 August 2010.

3. It was put on the appellant’s behalf that this conflict of dates was not the fault of the first or second appellant and this is to be accepted.  It was also put that the appeal involved complex factual issues, including possibly issues of credit and, perhaps, also a constitutional issue.  It was submitted that if the adjournment application were not acceded to there was a risk – it was put no higher than that – that the appellant might appear in person.  The difficulty which the application raises is this.  The court being a national court, considerable difficulties attend the assembly of appeal benches.  The two appeals mentioned in this application involve six judges and nine judge sitting days.  The rearrangement of such benches is a rather complex affair and it is for that reason that the court goes to some lengths to liaise the dates with counsel beforehand, so that the difficulties of the present kind do not arise.  I accept that the difficulty which has arisen is not really the appellant’s own doing, however, in the circumstances I do not think it would be appropriate for the present appeal to be adjourned.  I accordingly dismiss the motion.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.

Associate:

Dated:       14 July 2010