Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd

Child Support (Assessment) Act 1989 (Cth)

Child Support (Registration and Collection) Act 1988 (Cth)

Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd [2016] WASCA 14; (2016) 49 WAR 374

Re Carey; ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501

Re Rules of the Supreme Court 1971 (WA); ex parte Gates [2018] WASC 213

The State of Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40

Wilson v Metaxas [1989] WAR 285

1. At the conclusion of the hearing of the appellant's application for leave to appeal in this matter, we ordered that leave to appeal be refused and the appeal dismissed. These are our reasons for making those orders.

1. The appellant sought to institute proceedings in the General Division of the Supreme Court to quash a decision of the Child Support Registrar made on 4 June 2014. The Child Support Registrar's decision had the effect of increasing the appellant's assessed child support liability for the period from 4 February 2009 to 25 March 2009 by $5,595.08.
2. The Acting Principal Registrar of the court refused to accept the originating process for filing as it appeared to her to be an abuse of the process of the court or a frivolous or vexatious proceeding. The appellant then applied to the primary judge for leave to file the document. The primary judge refused to grant leave, essentially on the ground that the court lacked jurisdiction to deal with the matter.
3. We are of the view that leave to appeal from the primary judge's decision should be refused. That is because, even assuming that there was a wrongful denial of jurisdiction, no substantial injustice would be occasioned by refusing leave to appeal in the circumstances of this case.

1. The following background facts emerge from an affidavit sworn by the appellant on 29 May 2019 and its annexures.[1]
2. The appellant has two children with a woman to whom it is convenient to refer as W. The appellant says that he and W separated in 2007, and entered into an agreement for him to pay her $200 a week in child support payments directly, without involving any third party. The appellant says that he paid W $200 weekly until January 2009, when she contacted the Child Support Agency. The affidavit of the appellant which was sought to be filed in the primary court indicated that the appellant and W 'jointly disbanded the agreement, in about January 2009'.[2]
3. Although the original assessment has not been produced, it appears that the Child Support Registrar originally assessed the appellant's liability to pay child support for the child support period starting 2 October 2008 at an annual rate of $2,244. The Child Support Registrar normally assesses child support using both parents' adjusted taxable income for the previous year. However, as the appellant had not filed a tax return for the 2007 - 2008 financial year, the Child Support Registrar assessed the appellant's child support liability using a 'provisional' income of $10,270.[3]
4. On 2 April 2009, the Child Support Registrar accepted a request by the appellant to change the child support assessment by no longer applying the above annual rate. The appellant's annual rate of child support was reduced to the minimum annual rate of $339 with effect from 26 February 2009.[4]
5. It appears from the above that the appellant's annual rate of child support prior to 26 February 2009 was unaltered. An assessment issued on 2 April 2009 assessed the appellant's annual rate of child support for the period 2 October 2008 to 25 February 2009 at $2,244.[5] An assessment issued on 13 August 2013 assessed the appellant's annual rate of child support for the period 26 February 2009 to 25 March 2009 at $339. These assessments were both based on the appellant's provisional adjusted taxable income of $10,270.
6. On 4 June 2014, the Australian Taxation Office advised the Child Support Registrar that the appellant's adjusted taxable income for 2007 - 2008 was $73,000.[6] On the same day, assessments for the period 4 February 2009 to 25 March 2009 were issued, assessing the appellant's annual rate of child support at $12,866 based on an adjusted taxable income of $73,000.[7] The Child Support Registrar wrote to the appellant on 4 June 2014 advising of the adjustment.[8] A Child Support Account Statement issued on 21 June 2014 indicated that the effect of the amended assessments was to increase the appellant's arrears in child support by $5,595.08.[9]
7. The Child Support Registrar did not alter the assessment of the appellant's annual rate of child support for the period after 26 March 2009 after being advised of the appellant's increased adjustable taxable income.[10]
8. The effect of the Child Support Registrar's decision of 4 June 2014 was therefore to increase the appellant's assessed child support liability for the period from 4 February 2009 to 25 March 2009 by $5,595.08.

1. Provision for child support is made by the Child Support (Assessment) Act 1989 (Cth) (Assessment Act) and the Child Support (Registration and Collection) Act 1988 (Cth) (Registration and Collection Act). The following provisions of those Acts (collectively, the Child Support Legislation) appear to have been applied by the Child Support Registrar in the present case.
2. The office of Child Support Registrar is created by s 10 of the Registration and Collection Act.
3. Section 25 of the Assessment Act provides for the parent of a child to apply to the Child Support Registrar for an administrative assessment of child support in certain circumstances. If the Registrar accepts the application pursuant to s 30 of that Act, then under s 31 of the Act the Registrar must assess the annual rate of child support payable by a parent for the child for the days in the child support period that starts on the day on which the application is made. The Registrar must assess the annual rate of child support payable for a child for days in subsequent child support periods under s 34C of the Act. The phrase 'child support period' is defined in s 7A of the Assessment Act.
4. Section 35 of the Assessment Act sets out a formula for working out the annual rate of child support payable for a child. The first step in that formula is to work out each parent's child support income for the child for the day. Under s 41(1), the appellant's child support income for a child for a day in a child support period is the difference between his 'adjusted taxable income for the child for the day' and his 'self-support amount for the day'.
5. Section 43 of the Act provides for the components of a parent's adjusted taxable income for a child for a day in a child support period. It includes the parent's taxable income for the last relevant year of income in relation to the child support period. Section 56 provides for a parent's taxable income to generally be the amount of taxable income that is assessed under an Income Tax Assessment Act.[11] Section 58 provides for the Registrar to determine the parent's taxable income for the year where the parent's taxable income for the last relevant year of income in relation to the period has not been assessed under an Income Tax Assessment Act. Section 58A provides for the Registrar to amend an assessment made on the basis of a determination under s 58 where the Registrar subsequently ascertains the amount of the parent's adjusted taxable income for the last relevant year of income.
6. The 'last relevant year of income' in relation to a child support period is defined by s 5 of the Assessment Act to mean the last year of income that ended before the start of the period.
7. Section 77 of the Assessment Act provides for the effect of an assessment in the following terms:

(a) assesses the annual rate of child support payable for a child or children in a child support case, for a day in a child support period, by a liable parent to a carer entitled to child support; and

(b) converts the annual rate into a daily rate and specifies both rates in a notice of assessment given under section 76 in relation to the assessment.

(2) Child support is payable for the child or children by the liable parent to the carer entitled to child support for each day in the child support period.

(3) The amount of child support payable for the child or children for the day by the liable parent to the carer entitled to child support is the amount of the daily rate specified in the notice of assessment.

1. Section 80 of the Registration and Collection Act relevantly makes provision for the liable parent to lodge with the Child Support Registrar an objection to the particulars of an administrative assessment. Section 81 requires an objection to be lodged within 28 days, subject to the grant of an extension of time under s 82 and s 83 of the Registration and Collection Act. Section 87(1) provides for the Child Support Registrar to consider an objection and either disallow the objection, or allow it in whole or part.
2. Section 89 of the Registration and Collection Act provides for an application to be made to the Administrative Appeals Tribunal for review of a decision refusing an extension of time in which to object or a decision determining an objection. Such an application for review may be made by the person who applied for an extension of time or the person who objected to the original decision respectively. Subsequent sections make provision for a second review by the AAT.

1. On 19 November 2018, the appellant emailed to the registry of the Supreme Court a notice of originating motion and other documents. The Acting Principal Registrar refused to accept the notice of originating motion for filing on the ground that it appeared to her to be an abuse of the process of the court or a frivolous or vexatious proceeding. The registrar acted under O 67 r 5 of the Rules of the Supreme Court 1971 (WA) (Rules).
2. Order 67 r 5(1) of the Rules relevantly provides that if any process which is presented for filing, issue or sealing appears to the registrar to be an abuse of the process of the court or a frivolous or vexatious proceeding, the registrar shall refuse to file or issue such process without the leave of a judge first had and obtained by the party seeking to file or issue it. Rules 5(3) and (4) provide for an ex parte application for leave to be made to a judge in chambers.

1. The notice of originating motion which was rejected by the Acting Principal Registrar identified the applicant as the State of Western Australia, and the respondent as the Child Support Registrar. The notice indicated that the 'applicant' would apply for:

An order nisi for, for the respondent to show cause why an equitable injunction in the form of a writ of certiorari should not be issued against it ordering

1.1 its decision to retrospectively apply a debt and interest charges, to [the appellant's] account on or about late June / early July 2014 is quashed.

1. Under the heading 'Grounds of Application', the document proceeds to make assertions about various statutory provisions which it is unnecessary to set out here. Paragraph 4 of the grounds contends in part that:

[T]he respondent ought to give a valid legal reason why it should not have the decision referred to in [5] of this Originating Motion quashed by order of this court, and if it fails to do so on return of order nisi, then the court ought to provide an equitable remedy.

1. The decision referred to in par 5 of the grounds was the respondent's decision of 4 June 2014 to retrospectively apply a debt to the appellant's Child Support Agency Account and charge interest on that debt. The document said these actions:

[O]ffend the principles of equity, and an injustice under the category of inequity ...

1. Subsequent particulars set out why the applicant alleged the decision to offend these principles. In substance, they appear to make two complaints. First, it is said that the decision failed to take account of payments which the 'applicant' had made under the private child support arrangement with the children's mother during the first half of the 2008 - 2009 financial year. Secondly, it said that the decision wrongly assumed that the 'applicant' earned an identical amount every week of the 2008 - 2009 financial year. The document said:

The respondent saw fit to divide the total taxable income of the applicant from 1.07.2008 to 31.06.09 into 52 equal and identical payments over the course of 12 months, and arrived at a weekly figure payable as 'Child Support', as if the Applicant's income was the same for every week of that financial year.

1. The particulars went on to contend that the 'applicant's' income drastically reduced from the first half of the 2008 - 2009 financial year (when the alleged private arrangement was in place) to the second half of that year (when the Child Support Agency was responsible for collecting the money). It was asserted that the method adopted 'created an amount based in subjective inequity', and stated:

A historical court of equity would find that the debt and financial disparity is unjust and would quash the decision of the respondent and its effects, and as that jurisdiction is fully current and available, the Supreme Court of Western Australia has grounds before it to so order.

1. The notice of originating motion which the appellant sought to file contained a number of legal misconceptions, as, with respect, might be expected of a document prepared by a self-represented litigant acting without legal assistance. Taken as a whole, the notice of originating motion sought an order quashing the decision of the Child Support Registrar of 4 June 2014 to amend the assessments so as to increase the appellant's assessed child support liability for the period from 4 February 2009 to 25 March 2009 by $5,595.08.
2. On 28 November 2018, the appellant in effect sought leave to file or issue the notice of originating motion. The primary judge heard that application on 13 December 2018.

1. The hearing before the primary judge was short, taking only about 7 minutes according to the transcript. After inquiring as to why the appellant did not seek a review of the Child Support Registrar's decision in the Administrative Appeals Tribunal, the primary judge said:[12]

Mr Ives, there is a legislative scheme, which is a Commonwealth Act, for these payments. There is no basis to come to the Supreme Court of Western Australia when there is an existing Commonwealth Scheme. It doesn't matter how complex you think it is. It doesn't matter. That is the way you go. You can't just suddenly decide you want to come to the Supreme Court of Western Australia. It is not a matter where, even if it had jurisdiction to interfere - where it would be appropriate for us to interfere. There is a laid down procedure under the - I think it's probably the Child Support Registration and Collection Act. There is simply no basis to come to this court when there is an existing legislative scheme to seek a review of the decision. You can't just shop around, you know.

1. Later, after the appellant said that his rights in equity had been infringed, the following exchange occurred between the appellant and the primary judge:[13]

CURTHOYS J: You can claim all sorts of things, Mr Ives.

IVES, MR: Yes.

CURTHOYS J: But there has got to be some legal basis for it. And there's no legal basis for it. There's a set of Commonwealth legislation, in which you're obliged to pay child support. If you want to review of that decision, you would seek a review under that legislation. You don't come to - - -

IVES, MR: I don't want a review. I don't want a review of - - -

CURTHOYS J: What do you want?

IVES, MR: - - - the decision. I want my right in equity - the - my agreement that I had with my ex-wife to have my child - private child support payments with her - I want that agreement enforced, which is an agreement under the equitable jurisdiction of - - -

CURTHOYS J: No, it's not.

IVES, MR: Isn't it?

CURTHOYS J: No.

IVES, MR: Okay.

CURTHOYS J: Anyway, look, you've taken enough of this court's time. You've applied under order 67 to file the proceedings, following the refusal of the registrar. I've considered it. It's not a matter in which we have jurisdiction.

IVES, MR: Okay. Fine.

CURTHOYS J: It would be inappropriate to allow those documents to be filed. Your application to file them is dismissed. And we will now adjourn.

1. The appellant now seeks to appeal against the primary judge's order to this court. As the primary judge's decision is interlocutory, leave to appeal is required under s 60(1)(f) of the Supreme Court Act 1935 (WA).
2. After some delay, the appellant filed his Appellant's Case on 3 April 2019.
3. The Appellant's Case contains seven grounds of appeal. Although the grounds and submission contain a number of legal misconceptions, they do, in effect, assert that the primary judge erred in finding that the Supreme Court lacked jurisdiction to determine the proposed claim and that his Honour's reasons for refusing leave to file the notice of originating motion were inadequate.
4. The matter originally came before us on 16 May 2019. At that time, the material before the court did not enable the court to reach a concluded view of the matter, or understand the context in which the appellant's alleged cause of action was said to arise. The court was also faced with the difficulty that the appellant's appeal notice did not indicate that leave to appeal was required. The court ordered the appellant to file an amended appeal notice seeking leave to appeal and an affidavit annexing relevant material, and adjourned the hearing. Pursuant to the orders referred to above, the appellant filed an amended appeal notice and an affidavit sworn on 29 May 2019, from which the background facts at [5] - [12] above are drawn.
5. On 5 June 2019, a registrar's notice to attend was issued for the court to consider whether the appeal should be dismissed, and to consider the appellant's application for leave to appeal.

1. The principles governing the grant of leave to appeal from an interlocutory decision are well established. Generally, leave should not be granted unless the decision below is plainly wrong or is attended by sufficient doubt to justify the grant of leave and a substantial injustice would be done if it remains undisturbed.[14]

1. There may be some merit in the appellant's criticism of the primary judge's somewhat terse reasons. However, it would appear that his Honour refused leave to file the originating summons on the ground that the Supreme Court had no jurisdiction to quash the Child Support Registrar's decision of 4 June 2014.
2. We are satisfied that the correctness of those reasons are attended by sufficient doubt to justify the grant of leave to appeal, subject to the question of whether a substantial injustice would be occasioned to the appellant if the primary judge's decision remains unreversed. Clearly, this court does not exercise the administrative review function provided for by the Registration and Collection Act, and an appeal from the AAT's decision on such a review is not available to this court. But the primary judge does not appear to have considered whether this court might have jurisdiction to consider whether the Child Support Registrar's assessments were authorised by the Child Support Legislation under s 39(2) of the Judiciary Act 1903 (Cth) or s 4(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth).
3. However, we are not satisfied that any substantial injustice would be occasioned to the appellant if the primary judge's decision were left unreversed.
4. Primarily that is because, assuming that the Supreme Court had jurisdiction to quash the decision of 4 June 2014, the notice of originating motion had no reasonable prospect of succeeding, and was an abuse of the process of the court or a frivolous or vexatious proceeding on that basis. That is so for the following reasons.
5. First, there is no arguable basis on which the appellant has standing or authority to bring proceedings in the name of the State of Western Australia as applicant.
6. Secondly, the appellant's complaints about the Child Support Registrar's decision have no basis in fact, on the material available to this court.
7. The appellant's first concern (noted at [27] above]) is that the Child Support Registrar's decision failed to take account of the alleged agreement that the appellant reached with W for the payment of $200 per week in child support. The appellant's affidavit indicates that this arrangement came to an end in January 2009. The impugned decision of the Child Support Registrar relates to the appellant's child support liability in the period from 4 February 2009 to 25 March 2009. The Registrar's assessment relates only to the appellant's child support liability in the period after his arrangement with W came to an end. There was no arguable reason for the Registrar to take account of payments made by private arrangement outside the child support period in which the appellant's liability was being assessed.
8. The appellant's second concern (noted at [27] - [28] above]) proceeds on the premise that his child support liability for the period from 4 February 2009 to 25 March 2009 was assessed by reference to his taxable income in the 2008 - 2009 financial year. There is, on the materials, no basis for that contention. The provisions of the Child Support Legislation, referred to above, provided for the appellant's child support liability for the period from 4 February 2009 to 25 March 2009 to be assessed by reference to his adjusted taxable income in the 2007 - 2008 financial year. That is, the legislation provides for the child support liability for a child support period to be calculated by reference to the assessed or determined taxable income for the previous (rather than the current) financial year. Correspondence from the officers of the Department of Human Services indicate that this was the basis on which the Child Suppor[15]Registrar proceeded.15 There was no contemporaneous evidence to the contrary.
9. Thirdly, the grounds for review advanced by the appellant, even if established as a matter of fact, do not provide any basis for this court to quash the Child Support Registrar's decision on 4 June 2014. This court could only set aside a decision purportedly made under the Child Support Legislation if the decision was not authorised by that legislation, or possibly if it involved some material error of law appearing on the face of the record. There is no arguable basis for contending that any private agreement between the appellant and W in relation to child support to be paid in an earlier period could constrain the Registrar's authority to make an assessment for the period from 4 February 2009 to 25 March 2009. Nor does the proposed originating summons identify any error of law which might arguably justify setting aside the decision of 4 June 2014.
10. Fourthly, there was no adequate explanation for the appellant's delay in attempting to commence on 19 November 2018 a proceeding seeking to quash an administrative decision made on 4 June 2014. That delay of close to 4.5 years in challenging a decision concerning an amount of $5,595.08, assessed to be payable to the full-time carer of the appellant's children, would be a powerful discretionary reason for refusing the relief sought by the appellant.
11. Fifthly, even if there was a basis for this court to set aside the Child Support Registrar's decision of 4 June 2014, it is significant that the appellant has not availed himself of the alternative avenue of relief provided by the Child Support Legislation. As noted above, the Child Support Legislation provides for the appellant to object to an assessment and, if the Child Support Registrar disallows the objection, to seek administrative review on the merits by the AAT. The court has a discretion to refuse to exercise its jurisdiction to grant relief quashing an administrative decision where the applicant has failed to pursue an available alternative remedy.[16] In the particular circumstances of this case, there is no arguable basis on which this court might grant relief in on what is in substance a judicial review application when the appellant has failed to take advantage of the provisions for administrative review of the impugned decision provided for by the Child Support Legislation.
12. Taken together, the above matters led us to conclude that the prospects of success of the appellant's proposed proceedings were so remote as to make it an abuse of process or a frivolous and vexatious proceeding. It is established that proceedings will constitute an abuse of process if they can clearly be seen to be foredoomed to fail.[17] Also, as Vaughan J noted in Re Rules of the Supreme Court 1971 (WA); ex parte Gates:[18]

An action is frivolous when it is not worthy of serious consideration, is insupportable in law, discloses no cause of action or is groundless. So too a matter that is without substance or is fanciful is frivolous. The term is apt to describe proceedings in which the plaintiff's claim is so obviously untenable that it cannot possibly succeed or in which there is no serious question to be tried. An action is vexatious if it has no reasonable prospects of success. The term has also been said to be apt to describe an action which is a sham and which cannot possibly succeed. (citations omitted)

1. Further, the subject matter of the primary judge's decision is whether the appellant should be entitled to file a particular document which was rejected by the Acting Principal Registrar. The primary judge's decision does not preclude the appellant from pursuing any legitimate cause of action which he might have by an originating process which does not contain the defects of that particular document. The appellant's substantive rights are not affected by a refusal to grant him leave to file that particular document.
2. Having regard to all of the above matters, we were not satisfied that any substantial injustice would be occasioned by refusing leave to appeal. That is so even assuming that the primary judge wrongly denied the existence of jurisdiction to quash the Child Support Registrar's decision of 4 June 2014. We therefore exercised our discretion to refuse leave to appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Affidavit of Benjamin William Ives sworn 29 May 2019 (appellant's affidavit). See [36] below for the context in which that affidavit was filed.

[4] Appellant's affidavit, pages 61, 95.

[5] Appellant's affidavit, pages 57 - 58.

[7] Appellant's affidavit, pages 62 - 65.

[8] Appellant's affidavit, pages 41 - 42.

[9] Appellant's affidavit, pages 53 - 54.

[11] Defined in s 5 of the Assessment Act as meaning the Income Tax Assessment Act 1936 (Cth) or the Income Tax Assessment Act 1997 (Cth).

[14] Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd [2016] WASCA 14; (2016) 49 WAR 374 [80] - [81]; The State of Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40, 54 - 57; Wilson v Metaxas [1989] WAR 285, 294.

[15] Appellant's affidavit, pages 94 - 96, 110 - 111.

[16] See Re Carey; ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501 [128] - [140], [143].

[17] Walton v Gardiner (1993) 177 CLR 378, 393.

[18] Re Rules of the Supreme Court 1971 (WA); ex parte Gates [2018] WASC 213 [31].