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[2011] FCA 486
Federal Court of Australia
2011-05-12
Siopis J
Original judgment source is linked above.
Background 1 On 6 July 2010, the applicant, Wilberforce Buluma, filed an application in this Court. Mr Buluma's application sought the following orders: 1. I am seeking a stay order suspending liability collection by Child Support Agency pending court outcome. 2. In the event Child Support Agency owes me money in overcharge as a result of its accounting fraud, my money is to be recovered including interest. 3. If Child Support Agency wont prove beyond reasonable doubt that it acted within appropriate legislation and procedural instructions and instead engaged in an act of fraud to defraud me, I am seeking $4,000,000 in damages for fraud and defamation under Section 5 of the Administrative Decisions (Judicial Review) Act 1977 for causing financial hardship, stress and time I've spent to peruse huge volumes of paperwork for the last 10 years to uncover fraud. 2 Mr Buluma supported his application with an affidavit which set out his dealings with the respondent, the Child Support Agency (the Agency) since 1994. The extensive correspondence which forms part of Mr Buluma's affidavit shows that Mr Buluma has over that time made a number of different complaints to the Agency as to the manner in which it has calculated his child support payments, and other matters. These complaints have included complaints that the Agency has used different taxable incomes within the same child support period to assess his liability; miscalculated Mr Buluma's liability on numerous occasions, resulting in inflation and penalisation of overdue amounts and late payments; and intentionally inflated the amount owed in order to defraud Mr Buluma. 3 Mr Buluma also complained that the Agency wrongly intercepted tax refunds to recover past liabilities and sent defamatory communications to Mr Buluma's employers and his bank. Mr Buluma also said that there had been non-compliance by the Agency with an order issued by the Family Court to suspend payment of child support during a period when Mr Buluma's former wife was overseas. 4 Mr Buluma also went on to complain that he had objected to the child support assessments on a number of occasions, but those objections were disallowed by the Child Support Registrar. 5 I have set out above the relief which Mr Buluma claims. In summary, it appears that Mr Buluma is claiming a repayment of monies which he says he was fraudulently overcharged, and damages for fraud and defamation. 6 The respondent filed a conditional appearance on the basis that the jurisdiction of the Court had not been regularly invoked by Mr Buluma's application. It was contended by the respondent that insofar as Mr Buluma's application was to be treated as an application under s 5 of the of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), Mr Buluma had not identified as a respondent, any person who had the power to make a decision under either the Child Support (Assessment) Act 1989 (Cth) ("the Assessment Act") or the Child Support (Registration and Collection) Act 1988 (Cth) ("the Collection Act"). 7 On 6 September 2010, the respondent filed a notice of motion to have Mr Buluma's claim set aside pursuant to O 9 r 7 of the Federal Court Rules (the Rules). In the alternative, the respondent sought summary judgment pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth). The respondent also relied, in the alternative, on O 54 r 7(1) and O 20 r 5(1) of the Rules, each of which provides for the stay or dismissal of proceedings. 8 The respondent also complained that, insofar as the application was to be treated as an application under s 5 of the ADJR Act, it was out of time and should be dismissed. 9 The respondent said that it would consent to Mr Buluma joining the Child Support Registrar, being the person invested with the relevant decision-making power under the Acts, as a party to the proceeding. The Court gave Mr Buluma an opportunity to amend his application to join the decision-maker and to identify more precisely the decisions which he impugned and the facts and matters on which he relied to demonstrate that he had a claim under s 5 of the ADJR Act, and also to apply for an extension of time for the making of an application under s 5 of the ADJR Act. 10 Mr Buluma duly filed an application for an extension of time but declined the initiation to amend the application to join the Child Support Registrar as a party to the application. Mr Buluma filed an affidavit dated 20 September 2010, in support of that application.
whether the court has jurisdiction to entertain mr buluma's application 11 Mr Buluma seeks to invoke the jurisdiction of the Court by bringing an application by reference to s 5 of the ADJR Act. Insofar as Mr Buluma brings claims for defamation and deceit, I understand from Mr Buluma's written submissions, that Mr Buluma seeks to rely upon the accrued jurisdiction of the Court. 12 As I have previously mentioned, the respondent contended that the jurisdiction of the Court has been irregularly invoked by Mr Buluma. 13 I accept the contention of the respondent that for an applicant to invoke the jurisdiction of this Court for the purpose of conducting a review under s 5 of the ADJR Act, it is necessary that the applicant for the review commence a proceeding against a party that has the decision-making power in respect of the decision which the applicant for review seeks to impugn. 14 Mr Buluma has failed to comply with this requirement. Mr Buluma has not pointed to any basis for his contention that the respondent has any legal personality. Further, neither the Assessment Act nor the Collection Act refers to any decision-maker or other legal person called the Child Support Agency. Those Acts provide that the class of decisions in respect of which it appears Mr Buluma's complaints relate, are made by the Child Support Registrar, which is an office created by s 10 of the Collection Act. 15 It follows that I uphold the respondent's objection to jurisdiction and dismiss Mr Buluma's application for review.
extension of time 16 In any event, even if there had been a regular invocation of the jurisdiction of the Court by Mr Buluma, I would have refused Mr Buluma's application for an extension of time and dismissed Mr Buluma's substantive application on the grounds that it was brought out of time. 17 Section 11(3) of the ADJR Act provides that an application must be made during the period commencing on the day on which the decision is made, and ending on the 28th day after the day on which the document setting out the terms of the decision is furnished to the applicant. 18 Mr Buluma's affidavit revealed correspondence by Mr Buluma in relation to the Agency's assessments of child support liability dating from 1994 to (at the very latest) March 2009. 19 Thus, even if the last of the assessments was to be treated as a decision for the purposes of the ADJR Act, Mr Buluma's application was made more than a year out of time. 20 The Court has a discretion to grant an extension of time for the bringing of a review application. In exercising the discretion, the Court will take into account the explanation given for the delay, and whether the application for review has sufficient prospects of success to warrant granting an extension of time. 21 In his affidavit dated 20 September 2010, Mr Buluma stated that the task of assembling his application "consumed a lot of my time" and involved "huge volumes of paper-work". The assembly by Mr Buluma of documentation going back to 1994 in support of his application misconceived the nature of the review process provided for under the ADJR Act. It follows that in my view, Mr Buluma's explanation for the delay in commencing his application which, if treated as a review application, is on a best case, more than a year out of time, is not satisfactory or reasonable. 22 Further, in my view, in any event, Mr Buluma's application does not have a sufficient prospect of success to warrant granting an extension of time within which to bring his application. 23 First, Mr Buluma does not seek by way of relief, any remedies provided for in s 16 of the ADJR Act. 24 Secondly, and in any event, Mr Buluma has not identified the specific decisions or related conduct, which are to be the subject of review, nor the specific ground or grounds of the review identified in s 5 and s 6 of the ADJR Act which are relied on in relation thereto, nor the specific facts and matters on which he relied in respect of each of the grounds. 25 An application for review under the ADJR Act must relate to a decision, or conduct for the purpose of making a decision, to which the Act applies. Under s 11(1)(a) of the ADJR Act, an application for review "shall be made in such manner as is prescribed by" the Rules. 26 In this case, the relevant rule is O 54 of the Rules, which requires that the application for judicial review is to made in a particular form. The application must also set out particulars of fraud or bad faith, upon which the applicant for review relies. 27 As mentioned, in his affidavit filed on 7 July 2010, Mr Buluma sets out in extensive detail his interaction with the Agency over a number of years, starting in 1994. Further, Mr Buluma recites a number of the grounds of review set out in the ADJR Act and alleges in a generalised form that the Agency's conduct fell within those grounds. Among the grounds of the review recited by Mr Buluma are breach of natural justice, failure to observe procedures required by law, error of law, fraud, and no evidence. However, Mr Buluma does not seek to relate those generalised allegations either to a decision or to a ground of review. In my view, the following observations of French J (as his Honour then was) in Ex-Christmas Islanders Association Inc v Attorney-General (2005) 149 FCR 170 at [87], are germane to this case: The application does not, as required by the Federal Court Rules, set out the grounds upon which an order for review is sought…Those grounds which were presented…in the application seemed to have derived from an unthinking trawl through the grounds of review for which the Act provides. They include, contrary to the Federal Court Rules, an unparticularised allegation of bad faith. 28 Thirdly, insofar as Mr Buluma's application is for common law relief, those claims suffer the same defects as Mr Buluma's claim in relation to the ADJR Act. 29 In those circumstances, it is not possible to conclude that Mr Buluma's application has sufficient prospects of success to warrant the granting of an extension of time. It follows that Mr Buluma's application is dismissed with costs. I certify that the preceding twentynine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis .
Buluma
Child Support Agency
(2005) 149 FCR 170