Whittaker v Child Support Registrar

The second notice of motion 9 In the foregoing context, the second notice of motion was heard by the docket judge on 25 November 2008 and decided by his Honour on 4 March 2009. The orders made by his Honour on 4 March 2009 were as follows: '1. The following paragraphs of the amended statement of claim filed on 15 August 2008 be struck out: 6, 7, 8, 9, 10, 11, 12, 13, 21, 23, 23A, 23B, 23C, 24, 25, 27, 28, 29, 30, 31, 32, 33 and 34. 2. The applicants not have leave to replead the following paragraphs of the amended statement of claim filed on 15 August 2008: 21, 23A, 23B, 23C, 24, 25, 27, 28, 29, 30, 31, 32, 33 and 34. 3. The applicants have leave to replead the following paragraphs of the amended statement of claim filed on 15 August 2008: 6, 7, 8, 9, 10, 11, 12, 13, and 23. 4. The proceeding is dismissed in so far as it seeks the relief claimed in para 8 of the further amended application filed on 15 August 2008. 5. The applicants pay the respondents' costs of the respondents' motion brought by notice of motion filed on 12 September 2008. 6. Pursuant to the leave granted in para (3) above the applicants file any further amended statement of claim by 23 March 2009, showing all amendments by underlining in the usual way. 7. The proceeding be listed for directions on Friday 27 March 2009.' 10 It may be observed that no order was made striking out paragraph 26 of the Amended Statement of Claim, although such an order had been sought in the second notice of motion. 11 His Honour's judgment on the second notice of motion was interlocutory within the meaning of s 24(1A) of the Federal Court of Australia Act 1976 (Cth) ('the Federal Court Act'). Accordingly an appeal from his Honour's judgment could not be brought without a grant of leave to appeal. 12 It would seem to me that the order made by his Honour dismissing the prayer for relief contained in paragraph 8 of the Further Amended Application filed 15 August 2008 (see Order 4 above) was made in exercise of his Honour's power to do so under s 31A(2) of the Federal Court Act or under Order 20 rule 5 of the Rules. 13 Section 31A(2) of the Federal Court Act relevantly provided: '31A(2) The Court may give judgment for one party against another in relation to … any part of a proceeding if: (a) the first party is defending … that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting … that part of the proceeding.' 14 Order 20 rule 5 of the Rules relevantly provided: '5(1) This rule applies to a proceeding commenced on or after 1 December 2005 if the Court is satisfied that, … for a claim for relief in the proceeding: (a) the … claim is frivolous or vexatious; or (b) the … claim is an abuse of the process of the Court. (2) The Court may order that the proceeding be stayed or dismissed generally … in relation to the claim for relief. …' 15 In his reasons for judgment on the second notice of motion the docket judge referred at [1] to the fact that the respondents' application in respect of paragraph 8 of the Further Amended Application was made under s 31A of the Federal Court Act. 16 It may be observed that the word 'may' in the expression 'may give judgment' in s 31A(2) is, in the context in which it was used, permissive not mandatory. In relation to the use of the word 'may' it is instructive to note the observations of Gordon J in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited (2008) 167 FCR 372 at [128]. However, in my respectful opinion, the preconditions for the exercise of the relevant power, which require value judgments to be made in the absence of a full and complete factual matrix and full argument thereon, lead me to the view that a discretion is reposed in the judge hearing a relevant application for a grant of summary judgment. 17 At [107] of his Honour's reasons (see Whittaker v Child Support Registrar ([2009] FCA 188)) he said: '107 By para 8 of the further amended application, the applicants seek a declaration that Mr Whittaker does not have a child support liability pursuant to the Assessment Act [referring to the Child Support (Assessment) Act 1989 (Cth)], or, in the alternative, a declaration that his liability is nil. Since paras 24, 25, 30, 32 and 33 of the amended statement of claim are struck out, without leave to replead, the proceedings should be dismissed in so far as it seeks the relief identified in para 8 of the further amended application.' 18 The order made by his Honour striking out the 23 identified paragraphs in the Amended Statement of Claim filed 15 August 2008, was plainly made in the exercise of his Honour's powers under Order 11 rule 16 of the Rules which relevantly provided: '16 Where a pleading - (a) discloses no reasonable cause of action … or other case appropriate to the nature of the pleading; (b) has a tendency to cause prejudice, embarrassment or delay in the proceeding; or (c) is otherwise an abuse of the process of the Court, the Court may at any stage of the proceeding order that … any part of the pleading be struck out.' 19 In respect of the leave to replead granted by his Honour in respect of 9 of the 23 paragraphs in the Amended Statement of Claim filed 15 August 2008, which his Honour had struck out (see orders 3 and 6), it is clear that his Honour made those orders in exercise of his powers under Order 13 rule 2(1) of the Rules, the pleadings having closed and the right to amend without leave under Order 13 rule 3 having lapsed. 20 Order 13 rule 2(1) relevantly provided: '2(1) … the Court may, at any stage of any proceeding, order … that any party have leave to amend any document in the proceeding, … in such manner as the Court thinks fit.' 21 The order made by his Honour that the applicants should not have leave to replead the 14 paragraphs of the Amended Statement of Claim filed 15 August 2008 which his Honour had ordered should also be struck out would appear to have been made in exercise of his Honour's power under Order 13 rule 2(1) following an application made by the applicants ore tenus for leave to amend in the event that the relief sought by the respondents in the second Notice of Motion be granted (see paragraph 13 of the 'Argument of Applicants' - Ex B). 22 During the course of the hearing of the second notice of motion on 25 November 2008 the docket judge granted leave to the applicants to amend the Amended Statement of Claim in accordance with a list of amendments handed up at the commencement of the hearing of the second notice of motion, on the basis that the amendments could be written into the Amended Statement of Claim by the solicitor for the applicants within a short period of time. 23 At the commencement of the hearing of the second notice of motion counsel for the applicants, had said, inter alia (transcript page 2 of 25 November 2008 - Ex 2): '… What we've done today is to address what we perceive to be criticisms of the … amended statement of claim. However, in so doing, your Honour, we have been able to identify some simple amendments to the document that's been filed, the amended statement of claim, within the meaning of the rules which at an appropriate time we'd ask Mr McKell [the solicitor for the applicants] to write on to the court document so as to save costs, and also having regard to the nature of those amendments. I have reduced those amendments to a schedule, a copy of which I've provided to my friend, and which I can provide to your Honour, together with a spare copy to write upon. I have prepared that document for today …' After hearing from counsel for the respondents his Honour said (see transcript of 25 November 2008 page 4): 'So you're [counsel for the respondents] suggesting we proceed this morning on the footing that those amendments are in there … and attend to the mechanics at the end … all right, we'll proceed that way. So I'm proceeding on the amended statement of claim as if amendments handed up by Mr King are made.' 24 Pursuant to the leave to amend granted by his Honour on 25 November 2008 paragraphs 27, 30, 32 and 33 were subsequently taken out of the Amended Statement of Claim and minor amendments were made to other paragraphs. 25 The hearing of the second notice of motion proceeded on the assumption that the amendments had already been made.

The current application 26 By a notice of motion filed 11 March 2009 in the current proceedings, the applicants have sought leave to appeal from the whole of the judgment of the docket judge given on 4 March 2009 in proceeding NSD 204 of 2008. 27 In relation to such a notice of motion it is well established that there are no rigid rules which are to be applied in respect of applications for leave to appeal which detract from the unfettered discretion of the Court, conferred by s 24(1A) of the Federal Court Act. However, the cases provide general guidance which the Court should normally accept as to how the discretion is to be exercised. 28 For there to be a grant of leave to appeal it is necessary for an applicant to establish that the relevant decision of the primary judge was attended with sufficient doubt to warrant its reconsideration by a Full Court, and also that substantial injustice would result if leave were refused, supposing the decision to be wrong (see Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 ('Decor') at 398-400). 29 On the hearing of the applicant's notice of motion for leave to appeal counsel for the applicants read the affidavit of Peter Brian McKell sworn 11 March 2009. Objection was taken to paragraph 11 and to the exhibit identified as APP01 referred to therein. That paragraph was rejected, as was a tender of the exhibit. Objection was also taken to the second and third sentences of paragraph 13 on the basis that they record a conclusion of fact. The sentences in question were rejected. Objection was taken generally to the remainder of paragraphs 8 to 35 inclusive. These paragraphs were allowed on the basis that they recorded the argument which the applicants wished to advance on the hearing of the notice of motion rather than any matters of fact which could found an entitlement to the relief sought. 30 It may be observed from Mr McKell's affidavit that, firstly, the applicants seek leave to appeal from that part of the docket judge's judgment which precluded them from amending some but not all of those paragraphs in the Amended Statement of Claim filed 15 August 2008 in respect of which the docket judge had refused leave to replead. Of the 14 paragraphs in respect of which leave to replead was refused the applicants now seek leave to appeal in respect of the restraint upon repleading 9 only of those paragraphs being paragraphs 21, 23A, 23B, 23C, 28, 29, 31, 33 and 34 of the Amended Statement of Claim filed 15 August 2008. 31 Secondly, paragraph 7 of the affidavit makes it clear that the applicants also seek leave to appeal in respect of the order made by the docket judge dismissing the prayer for relief contained in paragraph 8 of the Further Amended Application filed 15 August 2008 and, thirdly, they seek leave to appeal in respect of his Honour's costs order (see Order 5). Paragraph 7 of Mr McKell's affidavit provided as follows: '7. The Applicants also seek to appeal paragraph 4 of the judgment that the proceeding is dismissed in so far as it seeks the relief claimed in paragraph 8 of the further amended application filed on 15 August 2008 and paragraph 5 of the judgment that the Applicants pay the Respondents' costs of the Respondents' motion brought by notice of motion filed on 12 September 2008. 32 At the commencement of his argument in support of the notice of motion filed 11 March 2009, counsel for the applicants submitted that the second notice of motion should have been 'dismissed in limine' as the applicants had an opportunity to raise the issues canvassed in the second notice of motion at the time when they sought relief under the first notice of motion but elected not to do so. 33 It will be observed, of course, that at the time when the first notice of motion was filed and heard the Further Amended Application had not been filed, nor had the Amended Statement of Claim. In respect of prayer for relief 8 in the Further Amended Application, counsel for the applicants submitted that it had been included in the earlier Amended Application filed 2 April 2008 and had not been amended in any way. 34 In relation to the 9 paragraphs in the Amended Statement of Claim filed 15 August 2008 which were struck out by the docket judge on 4 March 2009 and in respect of which leave to amend by repleading was not granted, a number of the paragraphs were only introduced into the Statement of Claim when the Amended Statement of Claim was filed on 15 August 2008 (paragraphs 23A, 23B and 23C) and three of the other paragraphs were either amended or particularised in a different form in the Amended Statement of Claim filed 15 August 2008 (see paragraph 28, 31 and 33). 35 In the 'Argument of Applicants' dated 5 November 2008 on the hearing of the second notice of motion ('Exhibit B') the solicitors for the applicants said: '2. No explanation is given as to why the prior application to strike out parts of the Application did not include this application. It is submitted that the Court should in its discretion not hear the further application, otherwise applicants in FCA proceedings are doubly vexed, with the attendant increase in costs and waste of Court time serving no one's benefit except lawyers. If the Respondents had instead answered the now admittedly reasonable discovery requests of the Applicants [instead of putting on this application after receiving the categories for discovery] the case would by now have been heard on the merits.' 36 On the application for leave to appeal, the applicants submit that his Honour overlooked the 'doubly vexed' argument in which it was submitted that the application for an order dismissing prayer for relief number 8 in the Further Amended Application filed 15 August 2008 was properly the subject of the first notice of motion filed 14 May 2008, as was the application to have the 24 identified paragraphs in the Amended Statement of Claim filed 15 August 2008 struck out, and, accordingly, that the respondents should have been denied an opportunity to bring the second notice of motion before the Court. 37 There are three problems with this submission. No argument was advanced by counsel for the applicants to this effect, at the commencement of the hearing of the second notice of motion on 25 November 2008. Rather, counsel for the applicants sought leave to amend the Amended Statement of Claim and proposed a modus operandi whereby the issues raised in the second notice of motion should be addressed (see transcript of 25 November 2008 - Ex 2, at page 2). His stance was totally inconsistent with the maintenance of a 'doubly vexed' submission, which it is now said, in my view erroneously, that his Honour overlooked, his suggested lack of consideration of it providing an independent basis for a grant of leave to appeal, which stands apart from a consideration of the issues, suggested as relevant, in Decor. In addition, the basis on which the first notice of motion was addressed, as summarised above, makes it perfectly clear that a proper exercise of any discretion to allow or disallow the second notice of motion to proceed should have been exercised in favour of it proceeding. No injustice has been made out which would warrant a grant of leave to appeal on account of a failure, if any, to address paragraph 2 of the 'Argument of the Applicants' dated 5 November 2008. In addition to the foregoing, no mention was made of the maintenance of a 'doubly vexed' argument in the 'Supplementary Submission of Applicants' of 25 November 2008 (Exhibit C) which was relied upon in support the applicants' case in respect of the second notice of motion and which had been heard by the docket judge earlier in the day on 25 November 2008. 38 Turning to the decision reached by his Honour on the application for leave to replead paragraphs 21, 23A, 23B, 23C, 28, 29, 31, 33 and 34 of the Amended Statement of Claim, which his Honour had ordered should be struck out, the applicants submitted that his Honour should have granted leave to replead those paragraphs rather than refuse such leave. 39 In the case of paragraph 33 of the Amended Statement of Claim it is difficult to see how it could be said that his Honour fell into error given that paragraph 33 was taken out of the Amended Statement of Claim by the applicants' solicitor, following the grant, by his Honour, of leave to do so on 25 November 2008. 40 In the case of paragraphs 31, 33 and 34 of the Amended Statement of Claim, the applicants did not, on the current application, press their claim that his Honour's decision was affected by appealable error. 41 As to the remaining 6 paragraphs, 21, 23A-C and 28-29, I am not persuaded that his Honour's decision was attended with sufficient doubt to warrant its reconsideration by a Full Court. 42 What his Honour did, by the orders which he made in respect of those paragraphs, was to purge the Statement of Claim of material going to prayers for relief which had been struck out of the Amended Application and which his Honour considered should be struck out of the Further Amended Application. Importantly, many of the claims made by the applicants were attempted re-runs of claims previously made in other proceedings which had been decided adversely to the first applicant. The orders made by his Honour on the first notice of motion had not been challenged by the applicants. Nor, for that matter, was there any challenge, in the current application, to the orders made by his Honour striking out 23 of the 24 paragraphs in the Amended Statement of Claim to which the respondents took exception. 43 The order dismissing prayer for relief number 8 in the Further Amended Application was, effectively, an implementation of a view previously expressed in respect of it that, in the absence of a pleading which provided a basis for it, which had not previously been litigated, it should also be dismissed (see [7] above and [107] of his Honour's reasons of 4 March 2009). 44 Paragraphs 21, 23A-C and 28-29 of the Amended Statement of Claim which his Honour struck out and in respect of which the applicants contend that his Honour's refusal of a grant of a leave to replead was affected by error, were as follows: '21. Further, the DPO [a Departure Prohibition Order purportedly made by the Child Support Registrar in respect of the first applicant, Mr Whittaker, prohibiting him from leaving Australia at any time in the future for an indefinite period] … was not made by the [Child Support Registrar] or at all but by a delegate thereof [Ms Scott] purporting to exercise the power of the [Child Support Registrar] provided for in the Child Support (Registration and Collections (sic)) Act 1988 which power was non-delegable whereby the Order is void and/or made in excess of jurisdiction by the said delegate. … 23A. On 28 February 2008 the Federal Court of Australia in this matter Ordered that the departure prohibition order made by the First Respondent on or about 6 December 2006 be stayed until 5 pm AEST on Thursday 6 March 2008 and as a consequence of the Order of the First respondent to depart Australia in furtherance of the employment contract. 23B. On 2 March 2008 and despite the Orders made on 28 February 2008 and the undertakings made the same day referred to in paragraph 23A herein, whilst the First Applicant was performing the employment contract in furtherance of the supply contract and after the carriage contract had commenced and the First Applicant was attempting to pass through the Immigration Passport Checkpoint at Sydney International Airport to board Singapore Airlines flight SQ220, the Second Respondent: a. without explanation, retained the First Applicant's Passport, completed Immigration document and Airline Boarding Pass; and b. instructed the First Applicant that he was to remain in a particular confined area of the Immigration zone within sight of the servants or agents of the Second Respondent as well as the general public passing through the Immigration zone; and c. further instructed the First Applicant that he was to remain in a particular confined area of the Immigration zone for an indefinite length of time whereby the First Applicant reasonably feared that unless he complied with such directions his liberty and person were threatened such that he would be compulsorily detained prosecuted and imprisoned; and d. later instructed the First Applicant that he was to remain in a particular confined area of the Immigration zone until Federal Police Officers arrived; and e. refused to answer the questions of the First Applicant or provide information to the First Applicant regarding the nature of the matter or as to why he was being detained; and f. detained the First Applicant until after the scheduled boarding time for Singapore Airlines flight SQ220; and g. shortly thereafter and without explanation allowed the First Applicant to pass through Immigration and board a delayed Singapore Airlines flight SQ220. 23C. In the premises the Second Respondent by its servants or agents, intentionally and with conscious and contumelious disregard for the rights of the First Applicant interfered with his liberty and/or the employment contract and/or the carriage contract, whereby the First Applicant suffered loss and damage. Particulars of Loss of First Applicant a. Exacerbation of nervous shock b. Further distress and disappointment c. Ongoing stress and anxiety and a general fear of airports and air travel d. General damages e. Exemplary damages … 28. Further or alternatively, prior to making the DPO on or about 6 December 2006, the First Respondent negligently or in breach of his duty of confidence to the First Applicant used the Applicants tax file number to identify the First applicant for the purposes of making the DPO. Particulars a. The First Respondent did not at any time make a request to the First Applicant to give the First Respondent a written statement of the First Applicant's tax file number under section 16B of the Child Support (Registration & Collection) Act 1988, or otherwise. b. The First Applicant did not at any time give to the First Respondent a written statement of the First Applicant's tax file number. c. The First Applicant did not at any time give to the First Respondent a written statement of any kind authorising the Commissioner of Taxation to provide the First Respondent with information about the First Applicant, including tax file numbers, being information that is in the possession of the Commissioner of Taxation. d. The First Applicant did not at any time give to the First Respondent a statement in writing that the First Applicant has a tax file number but does not know what it is and has not asked the Commissioner of Taxation to inform the First Applicant of the First Applicant's tax file number and authorising the Commissioner of Taxation to tell the First Respondent the tax file number. e. The First Applicant did not at any time give to the First Respondent a statement in writing that the First Applicant has an application for a tax file number pending and authorising the Commissioner of Taxation to tell the First Respondent if a tax file number is issued to the First Applicant - that number or if the application is refused - that the application has been refused or if the application is withdrawn - that the application has been withdrawn. f. The First Respondent did, without lawful basis, require the Commissioner of Taxation to provide the First Respondent with information about the First Applicant, including the First Applicant's tax file number and/or, without lawful basis, accessed confidential or private information, including the First Applicant's tax file number, being information that was in the possession of the Commissioner of Taxation. g. The First Respondent did, without the consent or authority of the First Applicant, obtain the First Applicant's tax file number, stored and maintained a record of the said tax file number and used the said tax file number in connection with the First Applicant's identity in breach of section 8WB of the Taxation Administration Act 1953 and/or in breach of the Privacy Act 1988. h. The First Applicant reserves the right to supplement or amend these particulars after discovery 29. As a result of the negligence or breach of duty of the First Respondent his servants or agents the First Applicant has suffered loss and damage. Particulars Particulars exceed 3 folios and are supplied separately' 45 The making of Departure Prohibition Orders was addressed in Part VA of the Child Support (Registration and Collection) Act 1988 (Cth) ('the Collection Act'). That Part included some 22 sections commencing with s 72D and concluding with s 72Y. The Child Support Registrar's power to make a Departure Prohibition Order was contained in s 72D of the Collection Act which relevantly provided: '72D(1) The Registrar may make an order (a departure prohibition order) prohibiting a person from departing from Australia for a foreign country if: (a) the person has a child support liability; and (b) the person has not made arrangements satisfactory to the Registrar for the child support liability to be wholly discharged; and (c) the Registrar is satisfied that the person has persistently and without reasonable grounds failed to pay …; and (d) the Registrar believes on reasonable grounds that it is desirable to make the order for the purpose of ensuring that the person does not depart from Australia for a foreign country without: (i) wholly discharging the child support liability; or (ii) making arrangements satisfactory to the Registrar for the child support liability to be wholly discharged. ...' 46 Section 72K of the Collection Act made provision for persons in respect of whom Departure Prohibition Orders were in force to apply for certificates authorising them to depart from Australia for a foreign country. In relation to such an application s 72L relevantly provided: '72L(1) This section applies if a person makes an application under section 72K for a departure authorisation certificate. 72L(2) The Registrar must issue the departure authorisation certificate if the Registrar is satisfied: (a) that, if the certificate is issued: (i) it is likely that the person will depart from Australia and return to Australia within a period that the Registrar considers appropriate; and (ii) it is likely that, within a period that the Registrar considers appropriate, the Registrar will be required … to revoke the departure prohibition in respect of the person; and (b) that it is not necessary for the person to give security under section 72M for the person's return to Australia. …' 47 In addition to the power conferred upon the Child Support Registrar by s 72L(2) of the Collection Act, s L(3) made provision for the Child Support Registrar to issue departure authorisation certificates in other circumstances. 48 One argument advanced by the applicants on the hearing of the current application was to the effect that if the Child Support Registrar delegated his/her power under s 72D to an officer or employee of the Department, such a delegation could only be valid if it also delegated the Child Support Registrar's powers and functions under s 72L of the Collection Act. 49 Some assistance in this regard is provided by ss 34AB and 34A of the Acts Interpretation Act 1901 (Cth) which included: '34AB Where an Act confers power on a person or body (in this section called the authority) to delegate a function or power: (a) the delegation may be made either generally or as otherwise provided by the instrument of delegation; … (c) a function or power so delegated, when performed or exercised by the delegate, shall, for the purposes of the Act, be deemed to have been performed or exercised by the authority; … 34A Where, under any Act, the exercise of a power or function by a person is dependent upon the opinion, belief or state of mind of that person in relation to a matter and that power or function has been delegated in pursuance of that or any other Act, that power or function may be exercised by the delegate upon the opinion, belief or state of mind of the delegate in relation to that matter.' 50 In relations to paragraphs 28-29 of the Amended Statement of Claim it is appropriate to note the terms of s 8WB of the Taxation Administration Act 1953 (Cth) which provided as follows: '8WB(1) A person must not: (a) record another person's tax file number or maintain such a record; or (b) use another person's tax file number in a manner connecting it with the other person's identity; or (c) divulge or communicate another person's tax file number to a third person. Penalty: $10,000 or imprisonment for 2 years, or both. (1A) Subsection (1) does not apply: (a) to the extent required or permitted by, or reasonably necessary in order to comply with an obligation imposed by, a taxation law or a law of the Commonwealth or a kind referred to in paragraph 202(c), (d), (e), (g), (ga), (h), (ha), (hb), (hc), (i) (ia), (j), (ka), (m), (n) or (o) of the Income Tax Assessment Act 1936; or (b) in connection with the first-mentioned person exercising powers or performing functions under, or in relation to, a taxation law or a law of the Commonwealth of a kind referred to in paragraph 202(c), (d), (e), (g), (ga), (h), (ha), (hb), (hc), (i), (ia), (j), (ka), (m), (n) or (o) of the Income Tax Assessment Act 1936; or (c) in connection with the first-mentioned person acting on the other person's behalf in the conduct of the other person's affairs. (2) Without affecting any obligation imposed by or under a law of the Commonwealth other than this section, nothing in subsection (1A) shall be read as imposing on a person an obligation to do an act referred to in paragraph (1)(a), (b) or (c).' 51 In relation to paragraph 21 of the Amended Statement of Claim his Honour, at [73], summarised the applicants' submission to the effect that a valid delegation of the Child Support Registrar's powers and functions under Part VA of the Collection Act are 'not divisible'. At [74] his Honour referred to the further contention of the applicants that the power conferred upon the Child Support Registrar was one which could not be lawfully delegated. 52 His Honour rejected 'both grounds of attack'. His Honour said at [76]: '76 The power given by s 72D to make a DPO is a power of the Registrar under the Collection Act and is clearly a delegable power by virtue of s 15. Section 72D(1) gives a power to make a DPO, not an obligation to make a DPO. Accordingly, the power is to be seen as a discretionary power to make or not to make a DPO. Of course, a DPO may only be made if the conditions set out in s 72D(1) exist, including the Registrar's (or delegate's) being satisfied of the matters referred to in paras (c) and (d) of s 72D(1). There is no reason why the power given by s 72D(1) might not alone be delegated.' 53 His Honour continued: '77 In any event, there is no suggestion in the ASC [Amended Statement of Claim] that the delegation to Ms Scott was not a delegation of all of the Registrars powers under Pt VA.' 54 I would add that the applicants' submissions appear to ignore ss 34AB and 34A of the Acts Interpretation Act to which reference has been made above. 55 In counsel for the applicants' 'Outline Submissions of Applicants [Leave to appeal Application]' the following submission was advanced in respect of his Honour's refusal of leave to replead paragraph 21 of the Amended Statement of Claim as follows: '6. As to paragraph 21 at [77] Lindgren J started (sic) that "there is no suggestion in the ASC [that the delegation to Ms Scott] was not a delegation of all" of the powers in question. However the question of whether the powers are divisible or not does not depend on whether the point arises on the pleading but on an arguable contextual case [assuming the underlying facts of the case asserted by the Applicants] arising from the terms of the legislation, in this case, Part V[A] of the Collections Act. There is with respect no illogicality or textual infelicity in the Applicants' approach on this point, and the Court should have given the Applicants the opportunity to re-plead. In truth the Judge treated the point as a section 31A argument and the effect of the Judgment on the point is not to strike out but to give summary judgment for the Respondents.' 56 It seems clear that paragraph 21 of the Amended Statement of Claim was one which raised a point of law, as permitted by Order 11 rule 9 of the Rules. The gravamen of the paragraph was not the factual premise upon which the point of law was based but rather the point of law itself. 57 Given the requirements of Order 11 rule 16, it was open to his Honour to address the point of law as pleaded, decide to reject it and determine that it could not be repleaded. 58 In relation to paragraphs 23A-23C of the Amended Statement of Claim his Honour said at [84]-[87]: '84 These paragraphs relate to events that are alleged to have occurred on 2 March 2008. 85 The respondents submit that because the allegation is not that Mr Whittaker missed the flight, but that he was briefly delayed, while his circumstances were checked before being allowed to proceed to board his flight, the applicants have not identified any interference with any contractual rights as a result of that brief delay. 86 A direction to wait, even if accompanied by an unreasonable refusal to give an explanation, does not give rise to either cause of action pleaded. In any event, there is no tort known as "interference with liberty". In the absence of a pleading of facts revealing a direct interference with contractual rights by unlawful means, the cause of action has no reasonable prospects of success. 87 Paragraphs 23A - 23C should be struck out without leave to replead.' 59 In relation to paragraphs 23A-23C, counsel for the applicants said in his 'Outline Submissions of Applicants [Leave to appeal Application]': '7. Paragraphs 23A to 23C raise a question of mixed law and fact involving questions of credit going to the differing accounts to be given of the episode at Mascot on 2 March 2008. There is no relevant difference between this cause of action and those pleaded at paragraphs 6 and following which were allowed to be re-pleaded. The inconsistency raises a relevant doubt.' 60 The alleged inconsistency between the manner in which his Honour treated paragraphs 6 et seq, where leave to replead was granted, and 23A-23C, where no such leave was granted, does not bear analysis. Without recording what was pleaded at paragraph 6 et seq of the Amended Statement of Claim in any detail, it is sufficient to note that when attempting to depart from the Sydney (Kingsford Smith) airport on Flight SQ232 on 15 February 2008 the first applicant was, so it is alleged, approached by servants or agents of the second respondent and 'thereafter deprived … of his liberty, restraining him and threatening him that should he proceed further through the airport … he would be compulsorily detained prosecuted and imprisoned …'. It is said that that first applicant was falsely imprisoned and further that the respondents and each of them 'trespassed upon the First Applicant and/or his personal property'. 61 In relation to those allegations, his Honour considered that paragraphs 6 and 7 of the Amended Statement of Claim were deficient. 62 At [24]-[28] his Honour said: '24 … The expression "deprived him of his liberty" may mean "locked him in a room", "forcibly man-handled him into a room and stood guard at the doorway", "handcuffed him", "encircled him" and so on. The expression "restraining him" is subject to the same kind of criticism. 25 This criticism is fundamental. It is one thing to invite or direct a person to step to one side for a conversation and another to prevent a person physically from exercising his or her liberty of movement. 26 The words "threatening him" that should he proceed further through the airport whereby he reasonably feared…" are grammatically incomplete. We are not told what the threat was. Perhaps it was "threatening him that should he proceed further through the airport he would be arrested" or "threatening him that should he proceed further through the airport he would commit a criminal offence" or "threatening him that should he proceed further through the airport he would not be allowed to board the plane". 27 Furthermore, it is alleged that Mr Whittaker was in fact deprived of his liberty and restrained, but it is then alleged that there was a threat that he would be "compulsorily detained, prosecuted and imprisoned". The making of the threat assumes that it was physically possible for Mr Whittaker to proceed further through the airport. 28 If I eliminate from my mind the distinction between the pleading of material facts and particulars, it seems that the allegation is that someone "instructed" Mr Whittaker to remain in "a particular confined area". I have the impression that he was not manhandled but was instructed to accompany officers of the Commonwealth to a "confined area" and was instructed to stay there. I do not know, however, what the expression "confined area" means. It may be a room but it may be an open area marked off in some way from the public concourse. The allegation must be made clear. In a claim of false imprisonment, the precise nature of the alleged confinement is important.' 63 In the case of the events of 6 March 2008 there was no allegation of trespass to the first applicant's person or property nor was there any allegation of deprivation of liberty such as one found in paragraph 6 of the Amended Statement of Claim. 64 The alleged departure checks on 2 March 2008 referred to in paragraph 23B of the Amended Statement of Claim were distinctly different from those alleged in respect of the first applicant's attempted departure on SQ232 on 15 February 2008. Paragraph 23A of the Amended Statement of Claim places the departure on 2 March 2008 on SQ220 in an entirely different context from that applicable to the attempted departure on the earlier date. Whilst the word 'detained' was used in paragraph 23Bf of the Amended Statement of Claim it is clear that the complaint was not one of physical detention but rather one of delay brought about by the necessary administrative checks which were said to have been undertaken. 65 As the respondents have submitted, his Honour correctly observed that there is no tort of 'interference with liberty'. Furthermore, in relation to the matters alleged in paragraph 23C of the Amended Statement of Claim it is significant to note, as alleged in paragraph 23Bg that the first applicant boarded flight SQ220 on 2 March 2008 as he had planned to do. 66 Given the distinction between the matters alleged in paragraphs 6 et seq of the Amended Statement of Claim and those alleged in paragraphs 23A-23C and the history of the development of the Statement of Claim to which reference has been made, it was open to his Honour to conclude, in the light of Order 11 rule 16, that the applicants should be denied leave to replead the events of 2 March 2008 in some other form. 67 In relation to paragraphs 28 and 29 of the Amended Statement of Claim his Honour said at [99]-[104]: '99 Paragraphs 28, 29 and 31 are defective for not pleading the elements of a claim in negligence, namely, material facts showing that a duty of care was owed, breach of that duty, and causation of loss. 100 Similarly, the paragraphs are defective for not pleading material facts showing the existence of an obligation of confidence in relation to specific information, that the information had the required quality of confidence, and that there was unauthorised disclosure or use of the information. 101 The respondents make the following submission : 66. A further reason to strike out the paragraphs is that they are premised upon reasoning that led to the original paragraph 7 of the Amended Application. The respondents contended that there should be summary dismissal of that part of the proceedings relating to ... this aspect of the case. The respondents' submissions in the summary judgment motion [which did not proceed to judgment] included the following: In any event, and more importantly, the underlying premise of the relief is misconceived and should be the subject of summary dismissal as having no reasonable prospect of success. The relief is premised upon the view that s 8WB(1) of the Taxation Administration Act 1953 (Cth) prevents the Registrar from exercising powers under ss 16C(1) of the Registration Act [a reference to the Collection Act] or s 150D(1) of the Assessment Act to require the Commissioner of Taxation to provide the Registrar with information about people, including their tax file numbers, unless and until the person or persons concerned have first provided statements under ss 16B(4) or (5) and 150C(2) or (3) of those respective Acts. The short answer is that s 8WB(1) of the Taxation Administration Act does not apply in connection with the Registrar exercising powers or performing functions under, or in relation to, the Assessment Act and the Registration Act: see s 8WB(1A)(b) of the Taxation Administration Act and s 202(ga) of the Income Tax Assessment Act 1936 (Cth). This argument or one materially identical was considered and rejected by Dowsett J in Whittaker v Child Support Registrar [2002] FCA 1430 at [4]. It has not merit whatsoever and this part of the proceeding should be summarily dismissed under s 31A of the Federal Court of Australia Act. 102 Section 16C(1) of the Collection Act and s 150D(1) of the Assessment Act empower the Registrar to require the Commissioner of Taxation to provide the Registrar with information about people, including tax file numbers, being information that is in the possession of the Commissioner. In each case, information provided by the Commissioner to the Registrar may be used only for the purposes that are specified in s 16C(2) or 150D(2) as the case may be. 103 The general prohibition of s 8WB of the TA Act and the power given by the Assessment Act to the Registrar do not impinge on the specific powers given to the Registrar by s 16C of the Collection Act and s 150D of the Assessment Act. 104 Paragraphs 28 and 29 of the ASC should be struck out without leave to replead. I note that the associated paragraphs of relief have already been deleted in the further amended application.' 68 In his 'Outline Submissions of Applicants [Leave to appeal Application]', counsel for the applicants submitted in relation to paragraphs 28 to 31: '9. Paragraphs 28 to 31 raise issues in tort, involving factual questions as yet unresolved and hitherto undecided [see Reasons at [99]]. Whether in the re-pleaded form the Act is contravened as suggested at [102] and [103] is a question which can only be determined once the re-pleading is attended to and on final hearing, or on an application under section 31A of the Federal Court of Australia Act. It is submitted there is doubt attending the decision refusing leave to re-plead warranting a grant of leave to argue the matters on appeal.' 69 In relation to these paragraphs and others which followed, the solicitor for the respondents said in the 'RESPONDENTS' OUTLINE OF SUBMISSIONS' at 20-22: '20. As far as paragraphs 28, 29 and 30 are concerned, it is noted that the Court made a finding (at [103]) that the general prohibition of s 8WB of the Taxation Administration Act 1953 (Cth) and the power given by the Child Support (Assessment) Act 1989 (Cth) to the Registrar do not impinge on the specific powers given to the Registrar by s 16C of the Child Support (Registration & Collection) Act 1988 (Cth) and s 150D of the Child Support (Assessment) Act 1989 (Cth). 21. This finding was not only open to his Honour but is consistent with the conclusions of Dowsett J in Whittaker v Child Support Registrar [2002] FCA 1430 at [4], where his Honour considered and rejected a materially identical argument. 22. Further, and in any event, these paragraphs were premised upon reasoning relevantly identical to that which lay behind the original paragraph 7 of the amended application, which was summarily dismissed on 24 June 2008: p.27 line 23 of Exhibit 1.' 70 I agree with the submission of the solicitor for the respondents. 71 There was no appeal from the summary dismissal order made by his Honour on 24 June 2008 in respect of paragraph 7 of the Amended Application. Whilst a claim for damages has been added in the Further Amended Application it does not seem to me open to the applicants to allege that any conduct of the first respondent in obtaining and using the first applicant's tax file number constituted a breach of a duty of care owed by the first respondent to the first applicant nor can I see how a claim of breach of statutory duty could arise. 72 Whilst counsel for the applicants contended that it may be possible to allege a tort of breach of privacy in respect of any obtaining and use by the first respondent of the first applicant's tax file number, no authority was cited to support the proposition that the facts as pleaded in the Amended Statement of Claim could give rise to a relevant duty, a breach of which has been alleged. 73 Given the history of the matter and the earlier summary dismissal of the applicants' prayer for relief number 7 in the Amended Application, it seems to me to have been open to his Honour to have refused leave to replead paragraphs 28 and 29 of the Amended Statement of Claim. 74 Not only am I not persuaded that his Honour's decision was attended with sufficient doubt to warrant its reconsideration by a Full Court, I am not satisfied that substantial injustice would result if leave to appeal were refused even supposing his Honour's decision to be wrong. 75 The applicants' case needs to be considered in the context of legal battles in relation to the first applicant's liability to pay child support extending back to 2000 and the clear warnings to the applicant of the need to look very closely at those paragraphs of the application which survived and to redo the Statement of Claim in the light of them, eliminating paragraphs which were not relevant to the remaining prayers for relief and pleading amply the facts upon which they were going to rely in the final hearing (see [7] above). 76 There is a public interest in achieving finality in litigation. In my opinion, the applicants have failed to make out a case that substantial injustice would result to them if they were refused leave to appeal in this case. 77 In my opinion the applicants' notice of motion filed 11 March 2009 should be dismissed with costs. I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate: Dated: 14 April 2009 Counsel for the Applicants: P E King

Solicitor for the Respondents: A Markus of Australian Government Solicitor