Specific attacks on Mr Whittaker's credit
137 In their written submissions the respondents make several cogent attacks on Mr Whittaker's credit. I have already touched on some of them above and will not repeat what I have said.
138 The first, and perhaps the chief attack, concerns the allegation that Mr Whittaker ultimately made that he was never made aware of the reason why he was not permitted to catch either flight. His final position was that the AFP officers and others who dealt with him knew nothing of the DPO and were unable to tell him why he was not permitted to leave. His ultimate evidence was that they could only guess that the reason had something to do with child custody or child support but did not really know. In oral evidence he said that he did not learn about the DPO until he "figured it out" on the evening of Saturday 16 February 2008 when he spoke to people who knew a little about child support legislation.
139 His case, therefore, was that on the basis that he had figured this out on the Saturday night, he commenced the proceeding in this Court on Monday 18 February 2008 seeking, among other things, a declaration that there were no reasonable grounds for the making of the DPO and that it was not "desirable" that a DPO under s 72D of the Collection Act be made (see s 72D(1)(d) set out at [16] above). As well, he sought an order that the DPO be revoked. The respondents submit that I should infer from the rather lengthy and detailed nature of the claims for relief made in the application filed on Monday 18 February 2008, that Mr Whittaker had knowledge of the DPO prior to, and otherwise than by, figuring things out on the Saturday night. I do not draw the inference. In the first place, most of the relief claimed did not relate to the DPO specifically. Second, it is possible that Mr Whittaker's solicitor independently applied himself assiduously on the Sunday and Monday to ascertain the facts and prepare the form of application.
140 There are, however, other indications that Mr Whittaker well knew right from the start on Friday 15 February 2008 that his problem was an order made by the CSA.
141 First, his affidavit of Monday 18 February 2008, which was also not read, said that the police had advised him on 15 February 2008 that he was the subject of a DPO. Mr Whittaker explained that he instructed his solicitor at the time, Robert Christie, that he had not been told about the DPO. He suggested that the reason why his affidavit stated otherwise must have been because Mr Christie was very tired ("I think he was still an apprentice solicitor. He was studying. He was virtually falling asleep while we were doing it, he was that tired, and I wasn't much better"). Mr Whittaker elaborated, saying that Mr Christie said "they must have said this to you, must have told you", to which Mr Whittaker replied that he was certain that they did not. The explanation at this point, therefore, seems to be that Mr Christie suggested what must have happened at the airport and through fatigue did not take on board Mr Whittaker's repudiation of the suggestion. Mr Whittaker said that he did read through his affidavit of 18 February 2008 before signing it, but through a "careless mistake", a "proofreading error", did not pick up the error.
142 In his affidavit of 8 September 2009 Mr Whittaker addressed the "error" further. He said in that affidavit that he had become aware of the error when preparing his affidavit of 18 June 2009. When asked why, then, he had not corrected it in his affidavit of 18 June 2009, of 30 July 2009 or of 4 August 2009, Mr Whittaker said that his understanding was that the affidavit of 18 February 2008 was not going to be relied on in evidence.
143 In re-examination he added a new dimension to his explanation. This was that when he was preparing his affidavit of 18 February 2008, "friends or acquaintances" made suggestions, such as "Remember this. Did this happen?" and "They must have said this" and "They must have said these words". The blame now seems to move from Mr Christie to friends or acquaintances for making suggestions that found their way into the affidavit Later, he returned to blame Mr Christie, saying "Mr Christie was very tired; he was falling asleep on his feet, and the couple of times that I worked with him, he was the same".
144 Second, on 25 February 2008 Mr Whittaker made an affidavit in which he purported to set out the words that had been used by AFP officers telling him that there was a DPO against him. He stated that the AFP officer said: "You are not going anywhere. You are not permitted to board the flight with Singapore Airlines because there is a Departure Prohibition Order issued by the Child Support Registrar against you". In cross-examination Mr Whittaker's initial explanation was that this must have been copied from his earlier affidavit, but when it was pointed out to him that the later affidavit purported to quote directly whereas the earlier one did not, he could only say that it was a mistake and that it had not been a good time for him.
145 Third, the various AFP officers gave evidence that they knew either before they arrived in the departure hall or, in the case of Senior Constable Jarvis, soon afterwards, that Mr Whittaker was unable to leave because he was the subject of a DPO or, more generally, because of a CSA order or direction preventing him from departing on account of his outstanding child support liability. See, in particular, [74]-[79] and [131]-[136] above. In cross-examination, the various officers adhered to that evidence and I do not accept that they concocted a false story. In the light of this evidence, Mr Whittaker's own evidence that they told him that they did not know what had triggered the "do not process" alert is improbable, and it is likely that they would have told Mr Whittaker what they knew of the reason for the "do not process" alert.
146 Fourth, as noted at [74]-[75] above, the PACE Close Match Alert Report of 15 February 2008 refers expressly to the DPO as having been "issued" on 6 December 2006, pursuant to s 72D of the Collection Act, and Mr Whittaker's not having made arrangements satisfactory to the Registrar for the child support liability to be wholly discharged. Senior Constable Mangkuwerdojo testified that he had the original version of this document with him at the time of his attendance at the departure hall. He identified his handwriting at the foot of the page "Supervisor Michelle". This is corroborated by Exhibit A3 which was a "Pass Alert Note" prepared by Senior Constable Mangkuwerdojo at 15:32 on 15 February 2008, and which states "Police spoke to Mell, from the Child Support (HOBART)". Exhibit R3 comprises a series of emails, all on 15 February 2008, between "Michelle Arnold", a team leader of the DPO Unit, Hobart, and David Badke of the CSA. The emails refer to contact from the AFP concerning the stoppage of Mr Whittaker at the airport in Sydney. The emails suggest that Mr Whittaker was given a 131 phone number for him to call. The telephone number on Exhibit R2 in handwriting and the number in the email are identical - number 131272. I infer that the 131 number given to Mr Whittaker was a CSA DPO number. Exhibit R2 also refers to "Mell Hobart" - I infer a reference to Michelle Arnold.
147 All of this evidence strongly suggests that on the Friday, the AFP officers were aware, as they said they were, that the cause of Mr Whittaker's troubles was a DPO. There is no reason why they would have told Mr Whittaker that they did not know why he had been stopped or that the reason might have something to do with child custody. I accept their evidence that they did tell him that the problem was the DPO and I reject Mr Whittaker's evidence to the contrary.
148 Fifth, I accept as accurate Ms Pitt's file notes to which I referred earlier, recording that Mr Whittaker had referred to the DPO three times in the course of Saturday 16 February (see [101]-[115] above).
149 Mr Whittaker's visit to the "Passport Office" in the city does not undermine my conclusion that he already knew that his problem was a DPO. His visit to that office, like his telephoning of Ms Pitt of the AGS, was consistent with an attempt by him to overcome his problem without having to deal with CSA officers.
150 The fruitless attempts of CSA officer Badke to speak with Mr Whittaker on Friday 15 February 2008 demonstrate Mr Whittaker's emotional antipathy to CSA officers and a motivation for his dealing with the Passports Office and Ms Pitt rather that with CSA officers.
151 Mr Badke was employed as a litigation officer in the CSA and had the care and conduct of Mr Whittaker's matter. According to Mr Badke, on Friday 15 February 2008 at 10:52 am he received an internal email alert as a result of which he telephoned Mr Whittaker at 14:48 that day. Mr Badke told Mr Whittaker that he wanted to talk with him about some issues that Mr Whittaker had in relation to leaving the country. Mr Whittaker replied that Mr Badke was not the person he needed and that Mr Badke must get his boss to telephone Mr Whittaker. According to Mr Badke, Mr Whittaker said that if the matter was not sorted out that day, they would be in court that night. Mr Whittaker hung up.
152 Mr Badke said that he telephoned Mr Whittaker again at 14:49 on the same day. According to Mr Badke Mr Whittaker said that it was a joke that Mr Badke should telephone him, that Mr Badke did not need to speak to him in order to resolve the issue, and that Mr Badke must simply act. Again Mr Whittaker "terminated the call".
153 At 14:51 the same day, Mr Badke telephoned Mr Whittaker a third time, but Mr Whittaker told him to go away and terminated the call.
154 Mr Badke sent a text message to Mr Whittaker on his mobile telephone urging him to contact Mr Badke on a certain number which he gave.
155 I accept that these conversations took place in accordance with Mr Badke's affidavit and that Mr Whittaker had a deeply felt resentment towards the CSA and wished to avoid dealing with it. In fact, although Mr Whittaker's account is different from that given by Mr Badke, one of the few concessions that Mr Whittaker made is found in the following passage:
I don't like Mr Badke personally, and I don't talk to him. Simple as that. So I hung up… as politely as I could.
[Counsel:] Are you saying you disliked him at the time? On 15 February you disliked him? -
Well, because he works for the Child Support Registrar, I guess.
[Counsel:] So it is guilt by association, as it were? -
Pretty much. They have some good people.
[Counsel:] Well, let me suggest to you that Mr Badke's version of the conversations are accurate, and not your version? -
I didn't engage in conversation with him. The first time he rang, I was being served.
Later Mr Whittaker said of Mr Badke: "I didn't like the guy and didn't want to talk to him."
156 I do not find it necessary to discuss the differences between Mr Badke's and Mr Whittaker's accounts of Mr Badke's telephone calls to Mr Whittaker. Their content is unimportant, although I see no reason not to accept Mr Badke's version. What is important is that Mr Whittaker knew that Mr Badke wanted to speak to him about the problem that his outstanding child support liability (a liability that Mr Whittaker, in his account, denied) posed for Mr Whittaker at the airport, but Mr Whittaker would have nothing to do with Mr Badke because of his deep rooted antipathy to the CSA.
157 Perhaps the passage that reveals this most forcefully and explains Mr Whittaker's preference for communicating with the Passports Office and Ms Pitt is the following:
[Counsel:] Mr Badke wanted to talk to you to fix up the problem and come to an arrangement? -
Mr Badke always wanted to talk to me and I didn't want to talk to him.
[Counsel:] So you accept that you could have chosen to speak to him and you could have chosen to enter into an arrangement to pay the child support liability? -
Except when I talk to people like him I get physically sick. My muscles tighten up in my back. It affects me, so I can't talk to them, so I choose to not talk to employees of the Child Support Agency. That's why I got Megan Pitt to ring. They make me physically sick.
158 I have no doubt that Mr Whittaker was told of the DPO from the outset on Friday 15 February and that either he has rationalised events subsequently under the influence of his strong animosity towards the CSA, or, under that same influence, has sought to mislead the Court. Either way, he is a witness on whose evidence I do not rely where it is in conflict with other evidence.
159 There were yet further matters adverse to Mr Whittaker's credit. The cross examination of Mr Whittaker on a financial report relating to the affairs of Rotary, that was said to have been prepared in connection with an application for finance, gave cause for concern. The financial statement showed the amount of income and expenses for the first period to which it related (the year ended 30 June 2008) to be identical to the cent ($902,288.19). There was no adequate explanation as to how Rotary came to have $296,940.68 at the bank at the end of the year if, as the financial statement said, all of the income was expended. Mr Whittaker's explanation that his wages were lent back to the company, or that he made some other loan to the company, could not itself be an explanation.
160 Moreover, Mr Whittaker's explanation that he returned his salary for the following period to the company was inconsistent with the report, because there was no increase in the amount of his loan account as between the two periods.
161 In re-examination, Mr Whittaker said that he spent some of the money on a house which he swiftly sold, but this remarkable change in his evidence still did not explain the apparent contradictions in the accounts.
162 While Mr Whittaker said that Rotary paid him salary or wages, there were no payslips and no superannuation or tax deductions. The financial report is of doubtful accuracy. The apparent non-compliance with normal industrial and taxation laws raises a doubt about Mr Whittaker's evidence.
163 I have referred earlier to a number of other inconsistencies or problems affecting Mr Whittaker's evidence, such as his initial claim that he spoke to Senior Constable Jarvis at the Passports Office in the city. It will be recalled that Senior Constable Jarvis denied this strongly and unequivocally in his affidavit. Mr Whittaker did not admit his error in his affidavit in response. Only after the Senior Constable had given evidence did Mr Whittaker acknowledge that he had been wrong. Notwithstanding this rather gross error, in cross examination Mr Whittaker would not concede that his memory was faulty, stating only that his original account of the events was a "mistake".
164 I also referred earlier to Mr Whittaker's change of position as to the request for his driver's licence. His affidavit evidence given in June 2009 was that the AFP officer who appeared to be in charge had asked him for the licence on Friday 15 February 2008 and that when he had provided it, the officer had got angry with him because of the discrepancy in his date of birth. Accordingly, in his cross-examination of Senior Constable Jarvis on this matter, counsel for Mr Whittaker put it to the Senior Constable that he had got angry but the latter disagreed. In the course of his own cross-examination, Mr Whittaker changed his evidence to say that he had not been asked for his licence at all on Friday 15 February 2008 (Senior Constable Jarvis was involved only on that date). Yet again Mr Whittaker would not accept that his memory was flawed, saying that he had simply made a "mistake".
165 Mr Whittaker's evidence that he was fearful of the police is inconsistent with his own evidence that he made a sarcastic remark to them about not having a child in his laptop bag, and his threat of bringing legal proceedings. In my opinion Mr Whittaker was more than equal to the task of standing up for what he perceived to be his rights and of countering assertions made by persons in authority.
166 There were many other problems in Mr Whittaker's evidence, such as a statement in his affidavit made on 25 February 2008 that he was told to "leave the Immigration zone immediately", and his other evidence that he was told "to leave the airport immediately"; his oral evidence of a threat made on 15 February 2008 that he would be arrested if he did not leave the airport immediately which was not mentioned in his affidavit evidence (his affidavit did mention that on the following day, 16 February 2008,an AFP officer said to him: "You may be arrested. Do not leave the country"); and his evidence that he had never been asked by the Registrar or the Commissioner of Taxation to lodge an income tax return during the period 1 July 1994 to 28 February 2007, which he conceded was incorrect.
167 Finally, I have also previously referred to the element of exaggeration in Mr Whittaker's evidence. This was pervasive and indicated a propensity to seek to advance his own cause.
168 Taking Mr Whittaker's evidence together and as a whole, I do not have confidence in it. He seems to be a victim of his own obsession. He has often changed his evidence in an attempt to avoid difficulties. He also took an adversarial stance throughout. He was dismissive of discrepancies in his own evidence and seemed to consider them minor distractions from the "message" that he was anxious to convey.
169 I not mean to suggest that the entirety of Mr Whittaker's evidence is to be rejected: it is, however, to be treated with great caution, and, generally speaking, the evidence of others is to be preferred in any case of conflict.
170 On the whole, the evidence given by the ACS and AFP officers was straightforward and acceptable. Of course, they could not be expected to remember the detail of one case among the many with which they have had to deal and which had occurred so long before they were called upon to recall it. In her affidavit, Federal Agent Mackay said that during her first four months of working at the airport as a Federal Agent, she responded to at least 40 PACE alerts, many of which were for passengers the subject of DPOs (para 4).
171 Only two aspects of their evidence call for mention. First, there were the notes of Senior Constable Mangkuwerdojo in which Senior Constables Jarvis and Khier participated. I do have some concern over the propriety of what was done. It would have been preferable if they had, independently of each other, made their own notes of what they had seen and heard. Bearing in mind, however, that all three participated so soon after the event when the circumstances were fresh in their minds, my concern is somewhat reduced: see also [328] ff below.
172 The other matter that calls for comment is a statement by Mr Le Miere that if a Customs officer gave a person a direction, he would expect the person to adhere to it. I accept the submission of senior counsel for the respondents that this evidence is properly to be understood as meaning that Mr Le Miere would expect the person as a matter of fact to adhere to the direction, not as evidence that Mr Le Miere would consider the person to be obliged to do so or even that the person would consider that he or she was obliged to do so.
173 The passage in question was as follows:
His Honour: --- There are so many terms that are used. You understand you are being asked this question as a matter of practice?
Sure.
It may be necessary for Mr King to - do you recall the question?
Yes, I do. He will be free to leave the area, is that what you are asking? If he ---
Mr King: He had been directed by the officer to stay and await the attendance of police officers to determine what to do in relation to the "Do Not Process"?
Yes, okay
He would be expected to stay there?
Expected, yes. Not obliged.
Well, what do you mean by not obliged?
Well, he doesn't have to stay there.
What, you say he could disobey a direction from a Customs officer?
No, it is just a direction to stay in the hall, yes, but no, he wouldn't be formally detained. No, basically.
The normal expectation would be where a Customs officer gives a direction in a restricted zone to an intending traveller presenting with commercial and other legal documents to do as ---?
We would expect him to adhere to a direction, yes.
174 Counsel relies on Mr Le Miere's statement "We would expect him to adhere to a direction" to suggest that it was reasonable for Mr Whittaker to apprehend that he was not free to leave. With respect, I think that counsel seeks to draw too much from that sentence.
175 It is important to appreciate the obvious: passengers desire to pass through the departure hall and to board their flight with the minimum of delay. It is to be expected, as a matter of fact, that they will comply with suggestions, directions, requests and invitations of Customs officers and others in positions of authority who seem to be the persons through whom they will be enabled to achieve that objective.
176 Even if Mr Le Miere meant either that he thought that an intending traveller should adhere to a direction or that it would be "right" for him or her to do so or that an intending passenger was obliged in a general sense to comply with directions given by the persons in control of the departure hall, this is far removed from evidence that he thought that an intending passenger must comply with a direction not to leave the departure hall. Indeed, his other answers in the passage set out above show otherwise. The word "expect" is a word of many colours. It may be true to say that in any area which is controlled by persons in official positions, members of the public entering that area can be expected, in the interests of good order, to comply with directions that the officials give. This, however, is not compulsion or coercion or an overbearing of the will. And when the circumstances are such that the interests of the member of the public are to be served by compliance, it becomes artificial and unrealistic to attribute to the notion of expectation a significance of subjugation.