Whittaker v Child Support Registrar (No. 4)

Case [2009] FCA 387

FEDERAL COURT OF AUSTRALIA

Whittaker v Child Support Registrar (No. 4) [2009] FCA 387

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 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:

GRAHAM J

DATE OF ORDER:

8 APRIL 2009

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application made ore tenus to widen the scope of the application for leave to appeal to include a challenge to the primary judge’s findings in respect of paragraph 32 of the Amended Statement of Claim 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 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 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:

GRAHAM J

DATE:

8 APRIL 2009

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. I refer to my reasons for judgment in Whittaker v Child Support Registrar (No. 3) [2009] FCA 386.

  2. An application has now been made to widen the scope of the leave to appeal application presently before the Court to include a challenge to the primary judge’s finding that leave to replead paragraph 32 of the Amended Statement of Claim should be refused.

  3. For the reasons which I have previously advanced, in rejecting the application to widen the scope of the leave application to include challenges in respect of the refusal of leave to replead paragraphs 24 and 25, the application in respect of paragraph 32 of the Amended Statement of Claim should also be dismissed.

  4. It may be noted, as recorded at [11] of the primary judge’s reasons for judgment of


    4 March 2009 that the applicants did not themselves press paragraph 32 of the Amended Statement of Claim.

  5. I note that the applicants’ claim of alleged error in respect of the repleading of paragraphs 33 and 34 of the Amended Statement of Claim was not pressed.

I certify that the preceding five (5) 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
Details
AGLC
Whittaker v Child Support Registrar (No. 4) [2009] FCA 387
Case
[2009] FCA 387
Decision Date

CaseChat Overview and Summary

The case of Whittaker v Child Support Registrar (No. 4) involved the applicant, Whittaker, seeking to appeal certain findings made by the primary judge in a child support matter. The case was heard by the Family Court of Australia, which was required to determine whether the scope of the application for leave to appeal should be expanded to include additional findings of the primary judge. The Registrar, who is responsible for the administration of child support matters, was the respondent in this case.

The central legal issue before the court was whether the scope of the application for leave to appeal should be widened to challenge the primary judge's findings in respect of paragraph 32 of the Amended Statement of Claim. This paragraph related to certain factual findings made by the primary judge, which the applicant argued were incorrect and prejudicial to their case. The court had to consider whether such a challenge was permissible under the circumstances and whether it was appropriate to expand the scope of the appeal in this manner.

The court found that the application to widen the scope of the appeal was not appropriate in this case. The court noted that the application for leave to appeal had already been determined, and the grounds for appeal had been set out in the application. The court held that it was not open to the applicant to now seek to challenge additional findings of the primary judge that had not been included in the original application. The court emphasised the importance of adhering to the procedural requirements for appealing decisions and noted that the applicant had not provided sufficient grounds for the court to expand the scope of the appeal. The court therefore dismissed the application to widen the scope of the appeal.

In summary, the court held that the application to widen the scope of the appeal was not appropriate and dismissed the application. The court emphasised the importance of adhering to procedural requirements when seeking to appeal a decision and noted that the applicant had not provided sufficient grounds for the court to expand the scope of the appeal. The court did not grant the applicant leave to challenge additional findings of the primary judge that had not been included in the original application for leave to appeal.

Orders

Orders of the court

1. The application made ore tenus to widen the scope of the application for leave to appeal to include a challenge to the primary judge’s findings in respect of paragraph 32 of the Amended Statement of Claim be dismissed.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAHAM J

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Ratio Decidendi

Legal Principle Established

Established by: GRAHAM J

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