Whittaker v Child Support Registrar (No. 3)
[2009] FCA 386
•8 April 2009
FEDERAL COURT OF AUSTRALIA
Whittaker v Child Support Registrar (No. 3) [2009] FCA 386
MARK ALAN WHITTAKER and ROTARY KILN SERVICES (AUSTRALASIA) PTY LTD (ABN 51 128 856 431) v CHILD SUPPORT REGISTRAR and COMMONWEALTH OF AUSTRALIA
NSD 198 of 2009
GRAHAM J
8 APRIL 2009
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 198 of 2009
BETWEEN: MARK ALAN WHITTAKER
First ApplicantROTARY KILN SERVICES (AUSTRALASIA) PTY LTD (ABN 51 128 856 431)
Second ApplicantAND: CHILD SUPPORT REGISTRAR
First RespondentCOMMONWEALTH OF AUSTRALIA
Second Respondent
JUDGE:
GRAHAM J
DATE OF ORDER:
8 APRIL 2009
WHERE MADE:
SYDNEY
THE COURT GRANTS:
1.Leave to the applicants to re-open their case on the Notice of Motion filed 11 March 2009.
AND THE COURT ORDERS THAT:
2.The application made ore tenus to widen the scope of the leave application to include a challenge to the primary judge’s findings in respect of paragraphs 24 and 25 of the Amended Statement of Claim be dismissed.
3.The matter stand over until midday on 9 April 2009 for judgment.
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 eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 198 of 2009
BETWEEN: MARK ALAN WHITTAKER
First ApplicantROTARY KILN SERVICES (AUSTRALASIA) PTY LTD (ABN 51 128 856 431)
Second ApplicantAND: CHILD SUPPORT REGISTRAR
First RespondentCOMMONWEALTH OF AUSTRALIA
Second Respondent
JUDGE:
GRAHAM J
DATE:
8 APRIL 2009
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Proceedings number NSD204/2008 were instituted in this Court by the filing of an Application on 18 February 2008. On 2 April 2008, an Amended Application was filed, together with a Statement of Claim. On 15 August 2008 a Further Amended Application was filed, together with an Amended Statement of Claim. The filing of the Further Amended Application followed the consideration by the docket judge of a Notice of Motion filed 14 May 2008, seeking an Order that paragraphs 1, 2, 3, 5, 6, 7 and 9 of the Amended Application filed 2 April 2008 be dismissed.
That Notice of Motion was heard by the docket judge on 24 June 2008 and following an extensive hearing in which the applicants were represented by counsel, who presently represent them and the respondents were represented by Mr Lloyd, of counsel. The docket judge ordered that the proceeding be dismissed insofar as it sought the relief referred to in paragraphs 1, 2, 3, 5, 6, 7 and 9 of the Amended Application filed 2 April 2008.
Paragraph 3 of the Amended Application was included in both the Application and the Amended Application. The relevant prayer for relief sought an Order that the Child Support (Assessment) Act 1989, prior to the commencement of the Child Support Legislation Amendment Act 2001, be declared ultra vires the Commonwealth Constitution and void.
That prayer for relief was dismissed by the learned docket judge on 24 June 2008 and there has been no appeal from that decision. Notwithstanding the dismissal of that prayer for relief, the Amended Statement of Claim included two paragraphs, 24 and 25 which, without particulars, provided as follows:
‘24.Further or alternatively there was no or no sufficient basis for the child support liability in the present matter in that the Child Support (Assessment) Act 1989 is invalid insofar as it purports to, or purported to, confer a taxation power upon the First Respondent in contravention of the Constitution, s.53 and s.55.
…
25. Further or alternatively there was no or no sufficient basis for the child support liability in the present matter in that the Child Support (Assessment) Act 1989 is invalid insofar as it purports to confer judicial power upon the First Respondent in contravention of the Constitution, s.71.’
In an affidavit sworn by Peter Brian McKell of McKells solicitors, sworn 11 March 2009, Mr McKell deposed as follows:
‘6.The Applicants seek to appeal that part of paragraph 2 of the judgment not allowing the Applicants to re-plead paragraphs 21, 23A, 23B, 23C, 28, 29, 31, 33 and 34 amended statement of claim.’
The reference to the judgment is a reference to the judgment of the learned docket judge of 4 March 2009 on the hearing of a Notice of Motion filed 12 September 2008 which sought the dismissal of a prayer for relief number 8, in the Further Amended Application, filed 15 August 2008 and the striking out of a number of paragraphs in the Amended Statement of Claim, being paragraphs 6, 7, 8, 9, 10, 11, 12, 13, 21, 23, 23A, 23B, 23C, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33 and 34 of the Amended Statement of Claim. On 4 March 2009, the learned docket judge determined the Notice of Motion, filed 12 September 2008, and ordered that paragraphs 6, 7, 8, 9, 10, 11, 12, 13, 21, 23, 23A, 23B, 23C, 24, 25, 27, 28, 29, 30, 31, 32, 33 and 34 of the Amended Statement of Claim, filed on 15 August 2008, be struck out.
On 11 March 2009, a Notice of Motion was filed in the current proceeding, seeking leave to appeal from the whole of the judgment of Lindgren J, given on 4 March 2009. That application, of course, was qualified by the affidavit of Mr McKell, the solicitor for the applicants, which indicated that leave to re-plead was not sought in respect of, amongst other paragraphs, paragraphs 24, 25 and 27. An application has now been made at about 4.45 pm on 8 April 2009, the second day of hearing of the application for leave to appeal, by counsel for the applicants, seeking to include paragraphs 24 and 25 in the application for leave to appeal, on the basis that his Honour erred in failing to grant leave to replead those paragraphs.
In his Honour’s reasons for judgment, in relation to paragraphs 24 and 25, he said at [90]-[92]:
‘90 There is no substance in these attacks …
91 Mr Whittaker has previously taken these contentions to the stage of a special leave application before the High Court ... Special leave was refused. ... Further, an attempt to limit the scope of the operation of Luton v Lessels failed in Weekes and Child Support Registrar [2006] FLC¶93-273; [2006] FamCA 598.
92 I note that para 3 has been deleted from the further amended application. Paragraphs 24 and 25 should have been removed from the ASC [Amended Statement of Claim]. The applicants have merely added some particulars.’
His Honour proceeded to indicate that paragraphs 24 and 25 should be struck out without leave to re-plead. In paragraph 94, his Honour continued:
‘94 Mr Whittaker (in person with leave) submitted that Luton v Lessels does not constitute a binding precedent because the originating process on the High Court file in that case did not bear the seal of the High Court. The submission is devoid of merit. I also note that the deletion of para 1 in the further amended application was consistent with the abandonment of the submission.’
In my opinion, the application to include paragraphs 24 and 25 in the current list of paragraphs, where his Honour is said to have fallen into error, should be refused. It seems to me that, given the removal from the Amended Application of paragraph 3 of the prayers for relief, it is inappropriate to allow the applicants to plead a case in support of a prayer for relief that is no longer there. In my opinion, the application to include those paragraphs in the leave to appeal application should be dismissed.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham. Associate:
Dated: 22 April 2009
Counsel for the Applicants: P E King Solicitor for the Applicants: McKells Solicitors Solicitor for the Respondents: A Markus of Australian Government Solicitor
Date of Hearing: 8 April 2009 Date of Judgment: 8 April 2009
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