Graham, Lynn v Commissioner of Superannuation [1981] FCA 117

courts; I do not know of any authorities in relation to inferior courts.

HIS HONOUR: The presumption is the other way as a rule in relation to courts of summary jurisdiction. But there are exceptions under Lord Jarvis's acts in the last century and the provisions that have been carried forward from them. But whether they apply to this I doubt; I am not sure of it at the moment but in general there is no presumption in favour of the validity of the order; not the sort of presumption you are trying to get to.

We all know that there are arrears and the greatest distance you can get is to say, if you had asked for a different order you might have got one and it would have been valid and that might then put you in the position of a person to whom section 119 applies. That is what you are

HIS HONOUR: All I can say is that at the moment, quite apart from anything else, it is hypothetical and that you did not obtain such an order and if you obtained an order for garnishment which also acknowledges the failure to pay that order was made contrary to section 118 of the Superannuation Act. I do not know where we get to then. We come back to where we were I would have thought.

MR PURNELL: Can I put it another way, your Honour. If one asks the question: can one have a judgment creditor under the Family Law Act and in submitting, yes,

one puts it this way: that to be a judgment creditor

one must have available to be able to enforce the judgment made in one's favour. Now, in relation to a maintenance order the submission is that the

HIS HONOUR: No, that is not a sound proposition; it does not prove what you want to prove. I mean, to say that an incident of being a judgment creditor is such and such does not show that because you have a similar incident you are a judgment creditor, does 1t?

MR PURNELL: No, your Honour, but you have available under the Family Law Act and the regulations enforcement provisions, and when one reads those and when one reads sub-section 5(a) of the Bankruptcy Act, that 1s of section 58 that I took your Honour to this morning, it 1s our submission that one can see that the beneficiary of a maintenance order can be a judgment creditor.

MR PURNELL: Because, your Honour, it is submitted that the applicant has a judgment and that is a judgment

HIS HONOUR: We do not have a judgment in any ordinary sense. One has to construe the whole thing together. It may be that you could say he did have a judgment for the purposes of some such provisions but to assert that he has a judgment is really wrong aun the ordinary understanding of legal language, is 1t not?

MR PURNELL: Yes, your Honour, but it is a judgment sufficient for the purposes of section 119 because the criteria that one has to satusfy under 119 is that you have a judgment, that there is a sum of money involved which is ascertainable, which has not been satisfied, and that is done by way of statutory declaration; and that flows from the judgment given in favour of the person who is the recipient of the maintenance order. And those criteria in this instance have been satisfied.

HIS HONOUR: You could say if you turned to the words of the section and talk about something being fully satisfied - what would you mean? Fully satisfied to a point of time?

MR PURNELL: Or fully sat isfied to the amount of a lump sum 1f it was a lump sum or fully satisfied as to - - -

HIS HONOUR: If 1t were a lump sum you would have different considerations but 1t is a periodical payment which 1s what we are dealing with. You have got to say: well, it has been fully satisfied or it has not. It was fully satisfied I suppose until last Thursday week which was the due day for payment, or something. That is the way it would read, 1s it not, any statement about it.

MR PURNELL: Yes, your Honour, but the recipient of the maintenance order would be in the same situation as the recipient of a judgment concerning compensation. That 1s all I have to put, your Honour.

HIS HONOUR: This tS an application under the Administrative Decisions (Judicial Review) Act 1977. The applicant relies upon section 5 of that act. There has been a challenge to the competency of the application filed on behalf of the respondent Commissioner for Superannuation. The notice of objection to competency FYelies upon three matters, namely that there was not a dec1rsion, that it was not of an administrative character, and that it was not made under an enactment. Counsel for the Commissioner has told me that he does not rely upon the last two of these grounds, so that the objection to competency only goes to the question whether there was a decision.

The applicant obtained a decree nisi for dissolution of her marriage on 8 April 1980. On 8 October of that year a judge sitting in the Family Court at Canberra ordered inter alia that her former husband pay maintenance for the support of two children of the marriage in the sum of $20 per week each. It was ordered that the payments were to be made to the collector of maintenance at Canberra for payment out to the applicant wife.

The applicant has deposed that she has not received maintenance from her former husband. She asked the collector of maintenance for the Australian Capital Territory to take enforcement action. This was apparently not possible, or at least 1£ possible, was not successful. The collector of maintenance issued a certificate of arrears dated 12 January 1981 which showed that nothing had been paid by the former husband by way of maintenance on or before 7 January 1981, and that on that date an amount of $520 was due under the order and was unpaid.

The applicant became aware that her husband was proposing to resign from the public service and she took action to garnishee superannuation moneys falling due to him. An order was made by a magistrate purporting to be pursuant to regulation 134(4) (b) of the regulations under the Family Law Act 1975. He ordered that the commissioner for superannuation pay any moneys held by him to which the respondent husband was entitled by way of pension, or refunds of payments in relation thereto, to the collector of maintenance at Canberra.

It is conceded by counsel for the applicant that there was no jurisdiction in the magistrate to make this order because under section 118 of the Superannuation Act 1976, a garnishee order could not be made against superannuation moneys.

On 6 January 1981, the applicant made a statutory declaration which annexed thereto a copy of the maintenance order to which I have referred, and the certificate of arrears and they were served on the commissioner for superannuation with a view to the arrears belng recovered pursuant to section 119 of the Superannuation Act. By letter dated 27 February 1981, the solicitors for the applicant were informed that earlier telephone communication was confirmed and that, and I quote:

in order to satisfy the requirements of section 119 of the Superannuation Act 1976 and; the certificate of arrears issued by the collector of maintenance cannot be

The letter in a separate paragraph then went on to say, and I quote:

Therefore the balance of Mr Graham's refund previously withheld will be paid to him shortly.

The reference to the refund previously withheld was to the fact that part of the superannuation moneys to which the former husband was entitled had already been paid to him.

The application for an order for review filed on behalf of the applicant 1s not dated but the amended application bears date 6 May of this year. As I have earlier indicated, the grounds relied upon are some of those set out 1n section 5. The commissioner has argued that there was not in this case any decision within the meaning of the definition an section 3{1) of the Administrative Decisions (Judze1al Review) Act. In my view, it is reasonably clear that what the commissioner intimated in his letter to which I have referred was that in his view there was no power to apply section 119 in the circumstances of the case and that he would therefore take no further action on the request made to him on behalf of the applicant. He had, in effect, taken a decision, as he was entitled to do, on a threshold matter concerning the application of the section and he had decided that question against the applicant and intimated that as a result he would take no further course except to pay the balance of Mr Graham's money to him. This, in my view, was a decision within the meaning of the sub-section and within the meaning of the opening words of section 5 of the act.

It was further urged on behalf of the commissioner that the applicant had another avenue of redress which

was provided by the terms of the Superannuation Act and by recourse thereafter, if necessary, to the

In these circumstances, and having 2n mind the terms of section 10(2) of the act, it was argued that this court should decline jurisdiction. IT think this 1s always a matter the court has to consider or should I say it is frequently a matter the court will have to consider. The main consideration, I imagine, is what is best to be done in the interests of the parties and in the public interest and with a view to saving cost and time and reaching aS soon as possible a finality of decision.

The jurisdiction of this court, except in respect of the matter to which I have already referred was not disputed. What the applicant has done is sought to have the question of law resolved by this court and 1f resolved in her favour, to have the commissioner exercise his discretion under section 119. If that discretion were exercised unfavourably to her, she could then pursue further remedies under the act or those under the Administrative Appeals Tribunal Act to which counsel has referred.

If the matter were not dealt with by this court she could seek reconsideration by the commissioner and then go to the Administrative Appeals Tribunal and 1f the question of law was still decided adversely to her, she might then have to come back to a full bench of this court. In the circumstances, 1t seems plain enough to me that 1t 1s in the best interests of everyone that this court deal with the question of law. In other words, that it accepts the jurisdiction granted to it. I therefore proceed to consider the application of section 5.

The core of the matter relates to the proper construction of section 119 of the Superannuation Act 1976. It 1s contended by counsel for the applicant that the amount of the arrears as at a past date having been determined and the necessary statutory declaration having been furnished to the commissioner, the terms of sub-section 1 have been satisfied. On behalf of the commissioner, on the other hand, it 1s contended that there was no judgment or alternatively there was no judgment for the payment of a sum of money; that the applicant was not put in the position of a judgment creditor, nor was the husband or anyone else in the position of a judgment debtor within the meaning of the sub-section. It is further urged that the language of the sub-section, particularly when it refers to a judgment being fully satisfied, 1s inconsistent with

any notion that arrears of maintenance, even although certified by the proper authority, can

be dealt with under that section. With these last-mentioned submissions I agree. It seems to

me that when one takes the sub-section as a whole, 1t 1s referring to a judgment in the more accepted sense of the word, where there 1s a decision by way of judgment that a fixed and ascertained sum of money be paid so that there is a judgment creditor and a judgment debtor and so that one can see whether or not the judgment has been fully satisfied.

An order for maintenance, it has long been acknowledged, 1S in a special position. An order for periodical payments, such as the present, creates an obligation for the payment of amounts in the future. The amount involved is indefinite because the obligation may be varied at any time and in any event will terminate with the death of the person liable to make the payments. Even if one were therefore to regard the order as a judgment - and in my view this would be incorrect so far as the use of that term in section 119 1s concerned - there would not be a judgment for any ascertained or ascertainable amount and it would not be possible properly to apply the terms of the sub-section. It is therefore my opinion that a case does not arise for the application of section 119(1). This accords with the view taken by the commissioner.

I think the whole chain of events has been a sorry one and the court cannot help but be sympathetic with a person in the position of Mrs Graham. I do not, however, know all the facts of that case, and should not go further in expressing a view about her position.

For the reasons I have given, the notice of objection to competency and the application should both be dismissed. In the circumstances, I think there should be no order as to costs. I do not think any of you can ask for costs.