Whittaker v Child Support Registrar

THE COURT: 1 The decision which the appellants seek to challenge was a judgment by an experienced judge delivered after a trial of the action over seven days. His Honour canvassed the evidence called by the parties in detail and at length. His Honour addressed each of the contentions advanced on the appellants' behalf and rendered a clear and comprehensive judgment against the appellants on each issue raised for his determination. 2 On the appeal to this Court, the appellants' submissions on issues of fact proceed, in large part, on the assumption that the issues between the parties remain at large as if they had not been determined by the findings of the learned trial judge. It is not open to this Court to determine issues of fact, as if the findings of the learned trial judge had not been made. While this appeal is an appeal by way of rehearing, the Court's function is to correct errors in the decision below. It is necessary for an appellant to identify putative errors and to articulate the basis on which it is said that error has occurred. This is particularly important where the findings of the learned trial judge depend upon his Honour's view of the credibility of witnesses. The appellants' arguments do not recognize, much less seek to overcome, the constraints within which a challenge to findings on credibility in an appeal by way of rehearing must be decided: see Fox v Percy (2003) 214 CLR 118 at [23]. 3 The appellants also seek to challenge the constitutional validity of the Child Support (Registration and Collection) Act 1988 (Cth) (the Collection Act) and the Child Support (Assessment) Act 1989 (Cth) (the Assessment Act). That challenge has been made by Mr Whittaker on previous occasions. The challenge failed then, and it must fail again. 4 Mr Whittaker appeared in this Court representing himself and the second appellant. After the hearing of the appeal had proceeded for some time, Mr Whittaker was disposed to seek an adjournment of the hearing of the appeal to enable the appellants to obtain the assistance of the counsel who represented them at trial to advance the appellants' arguments as to the constitutional invalidity of the Collection Act and the Assessment Act. 5 The Court refused the appellants' application for an adjournment of the hearing. The hearing date of 23 August 2010 was originally fixed to meet the convenience of the appellants' counsel. On the basis that the date of 23 August subsequently became inconvenient for the appellants' counsel, an application was made for an adjournment. On 9 July 2010, that application was refused. The appellants have thus had six weeks to prepare their arguments. It did not appear that any good purpose would be served by granting an adjournment of the hearing of the appeal. Mr Whittaker professed difficulty in articulating his constitutional arguments, but it was evident that he was very familiar with the arguments which he wished to advance. As will become apparent from the recital of the history of these proceedings, Mr Whittaker has had many opportunities to ventilate his arguments. The sober fact is that the problem for the appellants is not that Mr Whittaker lacks the skills necessary to articulate his arguments, but that there is no substance in arguments which have been presented, perhaps in somewhat different ways, on many occasions without success. 6 Before we address the appellants' arguments on the appeal in more detail, we will outline the broad facts of the incidents which gave rise to the present proceedings, the history of the previous litigation in which Mr Whittaker has been involved, and the issues which arose at trial.