Daley v Child Support Registrar

1. The interlocutory application is dismissed.
2. The appellant is to pay the costs of the respondent to be agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ABRAHAM J: 1 The appellant has appealed to the Full Court the orders made in the decision of Daley v Child Support Registrar [2019] FCA 1097. This matter was listed for hearing in the May sitting of the Full Court, however, due to the Covid-19 restrictions, the matter was adjourned until the August sittings on the basis the appellant would prefer to appear in person. On 1 June 2020 the appellant filed an interlocutory application seeking an interim order restraining the Child Support Registrar from collecting further moneys from him until this appeal has been dealt with by this Court. In a nutshell, the basis of the application is that the appellant believes that he will be successful in his appeal when it is determined. The appellant in oral submission advanced why he said that was so, arguing the merits of the appeal. 2 The appellant is unrepresented at this hearing. He was unrepresented in the court below. In support of his application the appellant has filed an affidavit sworn or affirmed by him on 23 May 2020 which in part reiterates his submission as to why the decision under challenge is wrong and in part replies to the written submission filed by the respondent on the appeal. 3 The respondent opposes the order. The affidavit of Donna Smith affirmed on 16 June 2020, and read on this application establishes that as at 15 June 2020 the appellant owes $22,919.16 to the respondent and that an amount of $50.94 is deducted each fortnight from the appellant's Centrelink benefits and is being applied to the arrears of child maintenance. 4 This matter has a lengthy history which is set out in the reasons of the decision under challenge. The proceedings concerned an application for judicial review of a decision of the Child Support Registrar made on 4 October 2006. The Registrar had notified the appellant in a letter dated 4 October 2006 that it had registered a registrable maintenance liability in relation to the appellant's son who was born in New Zealand. The application for registration of that liability was made by the New Zealand Inland Revenue Child Support. The appellant had sought an extension of time to bring the proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and discretionary relief under s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act) in respect of the same decision. Both the time issues and the merits of the application were fully argued before the primary judge. The application under the ADJR Act for an extension of time was refused, and for the same reason, the application for remedies under s 39B of the Judiciary Act was also refused as a matter of discretion. 5 The primary judge concluded inter alia: 11. Leaving aside for the moment the substance of the applicant's case, I find that there is no satisfactory explanation for the delay of many years. The present proceedings were commenced on 8 March 2019, whereas the decision sought to be impugned was made on 4 October 2006 and an application for an extension of time to lodge an objection to that decision was refused by the Tribunal on 20 November 2009. 12. This is relevant both to the extension of time and to the question whether this Court would grant any relief under s 39B of the Judiciary Act, the grant of such relief being discretionary and unreasonable delay on the part of the applicant being a recognised discretionary reason for refusing relief: see, eg, Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 at [53], [56] per Gaudron and Gummow JJ; R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389 at 400. … 36. None of these matters [being the substance of the applicant's case], in my opinion, found a sufficiently arguable issue to weigh in the applicant's favour in respect of either the extension of time application or the discretion to withhold relief under s 39B. I am not persuaded that the Registrar in 2006 committed any legal error in registering the registrable maintenance liability. 37. I also note that a significant obstacle in the applicant's path is that what he requires is arguably not simply an extension of time or a favourable exercise of discretion in this Court but judicial review of the discretionary decision of the Tribunal on 20 November 2009 not to grant an extension of time. He has not attempted to do so. Whether or not that decision strictly speaking replaced the registration decision, the failure to seek merits review of the registration decision within the applicable time limit, and successive decisions refusing an extension of that time limit, would provide substantial discretionary grounds for refusing relief on this application. 38. The applicant has also filed and served a notice under s 78B of the Judiciary Act stating that the acceptance of the New Zealand application for registration and collection of the New Zealand child support liability or debt is invalid as constituting a tax or an acquisition of property other than on just terms. There is no substance in these grounds in light of the decisions in Luton v Lessels [2002] HCA 13; 210 CLR 333 and Davis v Insolvency and Trustee Service Australia [2010] FCAFC 141. 6 In that context the appellant seeks an order be made that the respondent be restrained from collecting moneys from the appellant pending the resolution of the appeal. The order sought is, at least in part, that sought by the appellant if he succeeds in relation to the appeal against the refusal of the extension of time and the s 39B basis and succeeded on the merits of any judicial review of the 2006 decision. The appellant in effect wants the fruits of the successful appeal prior to the appeal being heard and determined. There is no proper basis to grant the order. 7 Ordinarily on an interlocutory injunction the applicant would need to establish that there is a serious question to be tried and that the balance of convenience favours such an order. The respondent accepted the Court has the power to make the order sought by the appellant in this case, citing Galaxy Day Care Pty Ltd v Secretary, Department of Education and Training [2018] FCA 1549. However here the injunction being sought is pending appeal. The appellant must establish error in the decisions challenged, which involved the exercise of discretion. In relation to the appeal against the refusal of an extension of time under the ADJR Act, leave to appeal is still required as that is an interlocutory decision being challenged. 8 The appellant has filed 20 grounds of appeal. It is not appropriate nor necessary to refer to the detail of those grounds or the submissions in support. That the appellant believes he will be successful on the appeal in not enough to establish that the order sought ought to be made. Suffice to say, having considered the material before me, there is nothing about the grounds of appeal and any prospects of success, which in the circumstances of this case, would warrant taking the unusual course of making the order sought by the appellant. Nor does the balance of convenience favour making such an order. The appeal will not be rendered nugatory. Nor, as the respondent points out, is there any evidence that the appellant suffers any prejudice caused by the deductions being made. If the appellant does succeed on the appeal appropriate orders as to remedy will be made. 9 In all the circumstances there is no proper reason why this matter should not continue in the ordinary course, and the arguments be resolved on the appeal, with orders then being made accordingly. The appellant has not established that there is a proper basis for the interim order sought to be made. The interlocutory application is dismissed, with costs. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Abraham.