FEDERAL COURT OF AUSTRALIA
Whittaker v Child Support Registrar [2010] FCAFC 112
| Citation: | Whittaker v Child Support Registrar [2010] FCAFC 112 | |
| Appeal from: | Whittaker v Child Support Registrar [2010] FCA 43 | |
| Parties: | ||
| File number: | NSD 189 of 2010 | |
| Judges: | KEANE CJ, MOORE AND PERRAM JJ | |
| Date of judgment: | 7 September 2010 | |
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| Date of hearing: | 23 August 2010 | |
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| Date of last submissions: | 27 August 2010 | |
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| Place: | Sydney | |
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| Division: | GENERAL DIVISION | |
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| Category: | No Catchwords | |
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| Number of paragraphs: | 103 | |
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| Counsel for the Appellants: | The First Appellant appeared in person on behalf of the First and Second Appellants. | |
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| Counsel for the Respondents: | Mr S Lloyd SC, with Ms A Mitchelmore | |
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| Solicitor for the Respondents: | Australian Government Solicitor | |
| IN THE FEDERAL COURT OF AUSTRALIA |
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| NEW SOUTH WALES DISTRICT REGISTRY |
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| GENERAL DIVISION |
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| ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA |
| MARK ALAN WHITTAKER First Appellant
ROTARY KILN SERVICES (AUSTRALASIA) PTY LTD Second Appellant
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| AND: | CHILD SUPPORT REGISTRAR First Respondent
COMMONWEALTH OF AUSTRALIA Second Respondent
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| JUDGES: | |
| DATE OF ORDER: | 7 SEPTEMBER 2010 |
| WHERE MADE: | SYDNEY |
THE COURT ORDERS THAT:
2. The appellants’ notice of motion filed on 16 August 2010 be dismissed.
3. The appellants pay the respondents’ costs of the appeal and of the notice of motion.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
| IN THE FEDERAL COURT OF AUSTRALIA |
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| NEW SOUTH WALES DISTRICT REGISTRY |
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| GENERAL DIVISION |
| ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA |
| BETWEEN: | MARK ALAN WHITTAKER First Appellant
ROTARY KILN SERVICES (AUSTRALASIA) PTY LTD Second Appellant
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| AND: | CHILD SUPPORT REGISTRAR First Respondent
COMMONWEALTH OF AUSTRALIA Second Respondent
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| JUDGES: | KEANE CJ, MOORE AND PERRAM JJ |
| DATE: | 7 SEPTEMBER 2010 |
| PLACE: | Sydney |
REASONS FOR JUDGMENT
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.
the incidents in question
7 Mr Whittaker and Rotary Kiln Services (Australasia) Pty Ltd (Rotary), a company of which Mr Whittaker is the sole director, brought proceedings against the Child Support Registrar (the Registrar) and the Commonwealth of Australia arising out of two incidents which occurred at Kingsford Smith International Airport, Sydney on Friday 15 and Saturday 16 February 2008. On each occasion Mr Whittaker was prevented from boarding a flight via Singapore to Langkawi in Malaysia where he had arranged to work for Phillips Kiln Services Asia-Pacific (Phillips).
8 Mr Whittaker’s travel plans were disrupted by a Departure Prohibition Order (DPO) made on 6 December 2006 by a delegate of the Registrar under s 72D of the Collection Act by reason of the absence of arrangements to satisfy Mr Whittaker’s liability to pay child support, that liability having been determined pursuant to s 58 of the Assessment Act. The DPO prohibited Mr Whittaker’s departure from Australia for a foreign country.
9 On 15 February 2008 at the airport, an Australian Customs Service (Customs) officer, Ms Ellis, scanned Mr Whittaker’s passport thereby triggering a “do not process” alert on the computer screen. Mr Whittaker was asked to wait in the departure hall while officers of the Australian Federal Police (AFP) were called. Mr Whittaker was not permitted to board his flight and his luggage was offloaded. Mr Whittaker booked a flight for the following afternoon.
10 On Saturday 16 February, Mr Whittaker went to the office of the Department of Immigration in Sydney to make inquiries which did not lead to a resolution of the problem. Nevertheless, that afternoon Mr Whittaker attempted to board the flight he had booked. Once again, scanning of Mr Whittaker’s passport produced a “do not process” response on the computer screen. The Customs officer, Ms Blair, told Mr Whittaker that someone would speak to him shortly and directed him to take a seat over by the crew barrier in the departure hall. Officers of the AFP were called to speak to Mr Whittaker. He was not permitted to board his flight and his luggage was again offloaded.
11 A replacement for Mr Whittaker was sent to Malaysia to do the work which he had intended to carry out.
12 The interruption to Mr Whittaker’s travel plans was only temporary. On 28 February 2008, orders were made by consent staying the operation of the DPO upon Mr Whittaker’s giving certain undertakings to the Court. On 2 March 2008, he was able to fly to Singapore.
the history of previous litigation
13 Section 58 of the Assessment Act provides that, where the Registrar is unable to ascertain the taxable income of a person, he or she may act on the basis that the person’s taxable income is “such amount as the Registrar considers appropriate”. The Registrar had notified Mr Whittaker of the making of an assessment of his liability for child support under the Assessment Act by letter dated 24 October 1994. The start of liability date so notified was 14 September 1994.
14 Mr Whittaker challenged decisions made by officers of the Child Support Agency (the CSA) in relation to his child support liability. He also challenged the authority conferred on the Registrar by s 58 of the Assessment Act on the basis that it purported to confer the judicial power of the Commonwealth on the Registrar. These challenges were dealt with and rejected by Drummond J in Whittaker v Child Support Registrar [2000] 106 FCR 105 at [2], [5], [23]-[34].
15 Before the present proceedings, Mr Whittaker brought two further applications to the Federal Court. In the first he sought prerogative relief in respect of an application by the Registrar to obtain his tax file number (TFN). Mr Whittaker relied upon the provisions of ss 8WA and 8WB of the Taxation Administration Act 1953 (Cth) (the TA Act). This application was rejected by Dowsett J who held that the making of the request by the Registrar was permitted by s 202(ga) of the Income Tax Assessment Act 1997 (Cth) and was accordingly within the exceptions to the prohibitions in ss 8WA and 8WB of the TA Act. Curiously, Mr Whittaker also asserted the constitutional invalidity of ss 8WA and 8WB of the TA Act on the basis that s 55 of the Commonwealth Constitution prohibits their enactment in a law which imposes taxation. As Dowsett J observed, the TA Act does not “impose” taxation, and, in any event, if ss 8WA and 8WB were to be declared invalid, there would be no legal prohibition on the use of his TFN:see Whittaker v Child Support Registrar [2002] FCA 1430 esp at [4].
16 The second of Mr Whittaker’s applications sought to quash the decision of the Registrar to accept an application for administrative assessment under the Assessment Act. Dowsett J rejected this application, both on the ground of delay on Mr Whittaker’s part and on the ground that the constitutional challenge to the conferral of power on the Registrar to make such an assessment could not be upheld consistently with the decision of the High Court in Luton v Lessels (2002) 210 CLR 333: see Whittaker v Child Support Registrar [2002] FCA 1429 esp at [6] and [7]. Mr Whittaker appealed to the Full Court of this Court against the decision of Dowsett J. The Full Court agreed with Dowsett J that the decision of the High Court in Luton v Lessels 210 CLR 333 foreclosed a challenge to the constitutional validity of the Assessment Act: see Whittaker v Child Support Registrar [2003] FCAFC 114 at [4].
17 Mr Whittaker sought special leave to appeal to the High Court of Australia from the decision of the Full Court of the Federal Court. The High Court refused to grant special leave to appeal: Whittaker v Child Support Registrar [2004] HCA Trans 252.
the issues at trial
18 Mr Whittaker commenced the proceedings which led to this appeal on 18 February 2008. Initially, no claim was made for damages at common law. The common law claims for damages were introduced by amendment on 2 April 2008.
19 The claims eventually advanced by Mr Whittaker in these proceedings were wide ranging. They included false imprisonment by officers of the Commonwealth in the departure hall of the airport, trespass to property, interference with contractual relations, denial of procedural fairness in failing to inform Mr Whittaker of the making of the DPO, and bad faith on the part of the Registrar in relation to the making of the DPO. Mr Whittaker also included an appeal to the Federal Court under s 72Q of the Collection Act to have the DPO “revoked or set aside or stayed”. Rotary claimed for loss flowing from interference with its contractual relations with Phillips.
· for declarations that the High Court’s decision in Luton v Lessels 210 CLR 333 and its refusal of special leave in relation to the decision of the Full Federal Court on the appeal from Dowsett J, were “void”: amended application, paras [1] and [2];
· for a declaration that the Assessment Act, before the commencement of the amending Act in 2001 which insert Part VA into the Collection Act was “void”: application, para [3],
· a writ of certiorari to quash the decision of the Registrar, made in 1994, to accept an application for assessment in respect of Mr Whittaker: amended application, para [5];
· an injunction restraining the Registrar from exercising the power under s 150D of the Assessment Act and under s 16C of the Collection Act in relation to the obtaining of Mr Whittaker’s TFN until certain preconditions were satisfied: amended application, para [6];
· a declaration that the exercise of the power by the Registrar under s 150D of the Assessment Act and under s 16C of the Collection Act would be contrary to s 8WB of the TA Act unless certain preconditions were satisfied: amended application, para [7]; and
· an injunction restraining the Registrar from taking action to pursue Mr Whittaker’s purported child support liability: amended application, para [9].
21 At the hearing of this motion, the appellants by their counsel told the judge that they did not press for the relief sought in paras [1], [2], [6], [7] and [9] of their amended application. Accordingly, and consistently with the position adopted by the appellants through their counsel, the judge dismissed the proceeding insofar as it sought the relief specified in those paragraphs of the application.
22 The appellants by their counsel pressed paras [3] and [5] of the amended application, but on 24 June 2008 the proceeding was dismissed in these respects. The judge held that they were foreclosed to the appellants by the determination of the proceedings before Dowsett J which culminated in the refusal of special leave to appeal to the High Court of Australia. The appellants filed a motion for leave to appeal against this decision, but on 1 August 2008, they filed a notice of discontinuance of that motion.
23 In the light of the outcome of the respondents’ notice of motion of 14 May 2008, the appellants were given leave to replead their application and statement of claim. The appellants filed a further amended application and an amended statement of claim on 15 August 2008.
24 On 12 September 2008 the respondents filed a notice of motion to strike out a number of paragraphs of the amended statement of claim and to dismiss para [8] of the appellants’ originating application. Paragraph [8] sought a declaration that Mr Whittaker did not have a child support liability pursuant to the Assessment Act, or that the liability was nil. This notice of motion was heard on 25 November 2008. Judgment was delivered on 4 March 2009: Whittaker v Child Support Registrar [2009] FCA 188. There will be occasion to refer to this aspect of the matter again, but it is sufficient at this stage to note that his Honour, in conformity with the earlier decisions referred to above, struck out the challenges made by paras [24] and [25] of the amended statement of claim to the constitutional validity of the Assessment Act. Further, his Honour held that the general prohibition in s 8WB of the TA Act did not apply to the performance by the Registrar of functions under the Assessment Act and the Collection Act: Whittaker v Child Support Registrar [2009] FCA 188 at [101]-[103].
25 By notice of motion filed on 11 March 2009, the appellants sought leave to appeal against this decision. On 14 April 2009, that application for leave to appeal was dismissed.
26 On 15 May 2009, the appellants filed a further amended statement of claim which raised 10 causes of action. Of those causes of action, a claim of assault upon Mr Whittaker was, in the event, not pressed; nor was a claim of intimidation.
27 The action was tried over seven days in August and September 2009. The learned trial judge rejected Mr Whittaker’s claims. His Honour accepted the evidence of the witnesses called by the respondents in preference to the evidence of Mr Whittaker. In this regard, his Honour considered that Mr Whittaker’s evidence was “heavily affected by what has become an emotional issue for him” (at [53]). His Honour stated (at [168]-[170]):
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.
I do 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.
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.
THE DPO
28 It is convenient now to say something more about the DPO and the basis on which it was issued.
29 The office of Child Support Registrar is established within the Child Support Agency (CSA) under s 10 of the Collection Act. The expression “child support” is defined in s 4 of the Collection Act to mean financial support under the Assessment Act. The general object of the Assessment Act is to ensure that children receive a proper level of financial support from their parents: s 4(1) of the Assessment Act.
30 An application may be made for an administrative assessment of child support under s 23 of the Assessment Act. In making that assessment, the Registrar may act on the basis that the relevant parent’s taxable income is “such amount as the Registrar considers appropriate”: s 58 of the Assessment Act. Because Mr Whittaker had not lodged an income tax return, the Registrar made an administrative assessment of child support. As has been noted, the start date of liability was 14 September 1994. As at 6 December 2006, the date of the DPO, the Registrar’s assessment was based on a 2005/2006 “median” income of $25,468.
31 Under s 77 of the Assessment Act, the amount of child support assessed by the Registrar is payable by the liable parent to the carer of the child: in this case Mr Whittaker’s former wife and the mother of the child entitled to support from Mr Whittaker. Mr Whittaker’s liability to pay child support was a “registrable maintenance liability” as defined in s 17 of the Collection Act.
32 Once registered, that liability became a debt due to the Commonwealth instead of to the carer, and the Commonwealth becomes responsible to collect the amounts payable and to remit the amounts so collected to the carer: s 30 of the Assessment Act.
33 As at the time of the making of the DPO, s 72D of the Collection Act provided:
72D Registrar may make departure prohibition orders
(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 child support debts arising from a registrable maintenance liability of a kind mentioned under section 17; 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.
(2) For the purposes of paragraph (1)(c), the Registrar must have regard to:
(a) the number of occasions on which a debt mentioned in that paragraph had not been paid on or before the day on which it became due and payable; and
(b) the number of occasions on which action has been taken to recover such debts, and the outcome of the recovery action; and
(c) the capacity of the person concerned to pay such debts; and
(d) such other matters as the Registrar considers appropriate.
(3) A departure prohibition order must be in the approved form.
34 Section 72F of the Collection Act provides:
72F Departure from Australia of certain child support debtors prohibited
A person must not depart from Australia for a foreign country if:
(a) a departure prohibition order in respect of the person is in force, and the person knows that the order is in force, or is reckless as to whether the order is in force; and
(b) the person’s departure is not authorised by a departure authorisation certificate, and the person knows that the departure is not authorised by such a certificate, or is reckless as to whether the departure is authorised by such a certificate.
Maximum penalty: 60 penalty units or imprisonment for 12 months, or both.
35 Section 72H of the Collection Act provides relevantly:
72H Operation of departure prohibition order
(1) A departure prohibition order comes into force when it is made, and continues in force until it is revoked, or until it is set aside by a court.
36 Section 72K provides that a person in respect of whom a DPO is in force may apply for a departure authorisation certificate (DAC).
37 The DPO made in respect of Mr Whittaker was made on 6 December 2006. Mr Whittaker gave evidence that he did not know that the DPO was in force until he worked out that that must have been the case on the night of 16 February 2008.
38 Section 72Q of the Collection Act provides that a person aggrieved by the making of a DPO may appeal to the Federal Court or to the Federal Magistrates Court of Australia against the making of a DPO.
39 Section 72U of the Collection Act provides, relevantly, as follows:
(1) This section applies if an authorised officer believes on reasonable grounds that:
(a) a person is about to depart from Australia for a foreign country; and
(b) a departure prohibition order in respect of the person is in force; and
(c) the person’s departure is not authorised by a departure authorisation certificate.
(2) The authorised officer may:
(a) take such steps as are reasonably necessary to prevent the person’s departure, including, but not limited to, steps to prevent the person going on board, or to remove the person from, a vessel or aircraft in which the authorised officer believes on reasonable grounds the departure will take place; and
(b) require the person to answer questions or produce documents to the authorised officer for the purposes of ascertaining whether:
(i) a departure prohibition order in respect of the person is in force; and
(ii) if such an order in respect of the person is in force—whether the person’s departure is authorised by a departure authorisation certificate.
(3) A person is guilty of an offence if the person refuses or fails to answer a question or produce a document.
Maximum penalty: 30 penalty units.
40 The expression “authorised officer” in s 72U is defined by s 72X to mean an officer within the meaning of the Customs Act 1901 (Cth) or a member of the Australian Federal Police (AFP).
THE NOTICE OF APPEAL
41 The further amended notice of appeal (the notice of appeal) sets out 41 grounds of appeal. The grounds of appeal are overlapping and repetitive, and in some instances seek to challenge the decision of the learned trial judge on issues that were not before his Honour. In their written outline of submissions the appellants summarised the 41 grounds under eight headings; the respondents in their written outline sought to address the grounds of appeal using the appropriate headings. It is convenient for this Court to follow suit in order to ensure that the appellants’ arguments are addressed comprehensively, and for the sake of coherence of exposition. The headings and grounds to which the appellants say they relate are as follows:
a) whether there was a child support liability or a liability above a nil amount [grounds 14, 15, 33, 35, 37 and 39];
b) whether the making of the Departure Prohibition Order by the First Respondent was an invalid exercise of judicial power contrary to Ch III of the Constitution [grounds 12, 13, 14, 17, 25, 33 and 39];
c) whether the powers to make the Departure Prohibition Order were exercised properly and or in good faith by the First Respondent [grounds 1, 2, 4, 6, 16, 17, 19, 20 and 22];
d) whether the First Appellant knew of the Departure Prohibition Order [grounds 3 and 5];
e) whether the agents of the Second Respondent believed on reasonable grounds that a DPO was in force in respect of the First Appellant [grounds 7, 23, 24 and 26];
f) whether the trial judge erred in general in making his decision [grounds 11, 12, 13, 18, 21, 29, 30, 31, 32, 34, 36, 38, 40 and 41];
g) adverse findings on credit [grounds 8, 9, 10, 27 and 28]; and
h) common law damages case [grounds 23, 29, 30 and 40, and grounds 10, 18, 24, 27, 28, 31, 32].
42 We will address these grounds in turn.
(a) Whether there was a child support liability or a liability above a nil amount
43 Under this heading the appellants assert that the learned trial judge erred in finding that Mr Whittaker had a child support liability (ground 14) and that he had not made arrangements to discharge that liability (ground 15). These findings (at [299] and [300] of the reasons of the trial judge) were made in the context of Mr Whittaker’s appeal against the making of the DPO under s 72Q of the Collection Act. The appellants do not identify any error on the part of the trial judge in their notice of appeal or submissions which might warrant these general assertions. Grounds 14 and 15 of the notice of appeal should be rejected for this reason, but insofar as the appellants rely on other arguments to support these grounds, those arguments are, as will be seen, without substance.
45 The remainder of the grounds of appeal under this heading (grounds 35, 37 and 39) assert that the trial judge erred in dismissing the proceeding insofar as it sought the relief referred to in paragraph [8] of the further amended application. Paragraph [8] of the further amended application sought a declaration that Mr Whittaker does not have a child support liability or alternatively that his liability is nil. The appellants in their written submissions under this heading also assert that the trial judge erred in dismissing the proceeding insofar as it sought the relief referred to in paras [3] and [5] of the amended application set out at [20] above.
46 The trial judge dismissed the proceeding insofar as it sought the relief referred to in para [8] on 4 March 2009 on the basis that he had struck out the paragraphs of the amended statement of claim, including paragraphs [24] and [25], on which that claim depended and had not granted leave to re-plead. Paragraphs [24] and [25] had asserted that the Assessment Act was invalid because it purported to confer a taxation power on the Registrar in contravention of ss 53 and 55 of the Constitution and a judicial power upon the Registrar in contravention of s 71 of the Constitution. The trial judge observed rightly, both that there was no substance in these attacks, and that they had been the subject of previous proceedings brought by Mr Whittaker in 2002 which culminated in an unsuccessful application for special leave before the High Court. As has been seen, the trial judge dismissed the proceeding insofar as it sought the relief referred to in paras [3] and [5] of the amended application on 24 June 2008 for the same reason.
47 The appellants assert that the issues raised in the present proceedings are different to those raised in the 2002 proceedings. We are unable to understand how that is so. In Luton v Lessels 210 CLR 333 the High Court had held that in authorising the Child Support Registrar to make assessments and determinations in relation to the collection of child support payments, the Collection Act and Assessment Act did not vest the judicial power of the Commonwealth in the Registrar contrary to Ch III of the Commonwealth Constitution. The basis for that conclusion was that the Registrar did not determine existing rights and obligations but created new rights and obligations for the future. Nor were the Registrar’s assessments or determinations conclusive. The appellants argue that amendments to the Collection Act, the Assessment Act and the TA Act considered in Luton v Lessels 210 CLR 333 saved the legislation from invalidity as an impermissible conferral of the judicial power of the Commonwealth on the Registrar and that this point has not been raised before.
48 We are unable to see how any of the legislative amendments which were made make any significant difference to the nature of the power vested in the Registrar. In any event, the appellants have not demonstrated any error in the learned trial judge’s holding that they were precluded from raising these matters again. Accordingly grounds 35, 37 and 39 of the appeal should be rejected.
(b) Whether the making of the Departure Prohibition Order by the First Respondent was an invalid exercise of judicial power contrary to Ch III of the Constitution
49 The principal assertion under this heading is that the trial judge erred in failing to hold that Part VA of the Collection Act, and in particular s 72D, conferred judicial power of the Commonwealth on the Registrar contrary to Ch III of the Constitution and that it was therefore invalid (ground 25). The trial judge considered, and rejected, this argument (at [324]). His Honour considered the features of the Collection Act which combined to show that the making of a DPO under s 72D is an administrative act at [313] – [323] of his reasons. The reasoning in the decision of the High Court in Luton v Lessels 210 CLR 333to which reference has been made supports the conclusion of the trial judge. The DPO did not determine existing rights and duties but subjected Mr Whittaker to a new restriction of his rights. Nor was the exercise of the power conferred by s 72D of the Collection Act apt to resolve a dispute between parties. Nor was the decision of the Registrar conclusive: s 72Q provided avenues of appeal. Accordingly, ground 25 of the appeal should be rejected.
51 The appellants assert further errors on the part of the trial judge in finding that Mr Whittaker had a child support liability (ground 14) and that the Registrar was satisfied that Mr Whittaker had the capacity to pay (ground 17). His Honour made these findings at [299] and [301] of his reasons. The appellants articulate no basis to set aside the trial judge’s findings in this regard.
52 Finally, under this heading the appellants assert that the trial judge erred in dismissing the proceeding insofar as it sought the relief outlined above at [44] and [45] of these reasons (grounds 33 and 39). For the reasons stated above at [46]-[48], grounds 33 and 39 of the notice of appeal should be dismissed.
(c) Whether the powers to make the Departure Prohibition Order were exercised properly and or in good faith by the First Respondent
53 The first ground of appeal under this heading is that the learned trial judge erred in holding that there was no obligation on the Registrar to observe procedural fairness in the issue of a DPO (ground 1): see the reasons of the trial judge at [236] – [279]. The appellants’ submissions do not articulate a basis for setting aside the findings of the learned primary judge. Accordingly, ground 1 of the notice of appeal should be rejected.
54 Secondly, the appellants assert that the trial judge erred in not holding that the DPO was invalid by reason of a failure to comply with the provisions of the Collection Act (ground 2) and in finding that the DPO was made properly or at all (ground 4) and was in force at the relevant time (ground 6). The appellants’ argument on this point seems to be that the DPO could not have been made in the approved form in accordance with s 72D(3). The appellants’ submissions on this point were rejected by the trial judge at [344] – [355] of his reasons. No arguable error in his Honour’s reasons has been identified. Accordingly, grounds 2, 4 and 6 of the appeal should be rejected.
55 Thirdly, the appellants assert error on the part of the trial judge in relation to their appeal under s 72Q of the Collection Act. They assert that the trial judge erred in finding that the Registrar had satisfied s 72D(1)(c) (grounds 16 and 17) and s 72D(1)(d) (ground 19) in making the DPO and consequently in dismissing Mr Whittaker’s appeal against the making of the DPO (ground 22): see the reasons of the primary judge at [295] – [304]. That challenge is without foundation.
56 As the respondents point out in their submissions, the evidence established, as the trial judge found, that Mr Whittaker had a child support liability, that he had never made any arrangements for that liability to be discharged, that the Registrar was satisfied that Mr Whittaker had persistently and without reasonable grounds failed to pay child support debts from a registrable maintenance liability and that the Registrar had reasonable grounds for holding the belief referred to in s 72D(1)(d). Once again, the appellants’ submissions articulate no basis for this Court to set aside the findings of the trial judge. Accordingly, grounds 16, 17, 19 and 22 of the notice of appeal should be rejected.
57 Finally under this heading, the appellant asserts that the trial judge erred in finding that a DPO could be issued for the purpose of enforcement of a liability under the Collection Act (ground 20). The trial judge characterised this argument as a complaint that the decision to issue the DPO involved an irrelevant consideration. The trial judge dismissed this argument at [290] – [294] of his reasons. The appellants have not articulated any error in his Honour’s approach to this point. Accordingly, ground 20 of the appeal should be rejected.
(d) Whether the first appellant knew of the DPO
58 This heading refers to appeal grounds 3 and 5. Those grounds assert error on the part of the trial judge in finding that a copy of the DPO was given to Mr Whittaker (ground 3) and in finding that Mr Whittaker received notice of the intention to make the DPO or had a reasonable opportunity to object to or appeal against the making of the DPO (ground 5). The appellants written submissions are directed to ground 3. In the submissions the appellants assert that there was no evidence to demonstrate the DPO was sent. The trial judge rejected these assertions (at [262] to [279]) on the evidence.
59 The trial judge accepted the evidence of CSA officer Mr Wearne as to the mailing of the letter enclosing the DPO. It was open to his Honour to accept that evidence. On the basis of the evidence of CSA officers as to the mail procedures, his Honour inferred that the letter dated 6 December 2006 enclosing a copy of the DPO was sent by prepaid (registered) post on that date to Mr Whittaker to his address for service. By the operation of reg 14(1) of the Collection Act service is taken to have been effected at the time the letter and enclosed copy of the DPO would have arrived in the ordinary course of post. Mr Whittaker sought to argue that he did not receive the letter as he had received other correspondence from CSA sent to him at that address, and that, as the letter was not returned to sender, it should have been inferred that it was not sent. But it was open to his Honour to act upon the evidence of CSA’s practice and come to the conclusion which he came without making a specific adverse finding about Mr Whittaker’s evidence. In any event, as his Honour observed, any problem with notification would not touch on the validity of the DPO. The appellants do not identify any error of the learned trial judge in making these findings. Accordingly, ground 3 of the notice of appeal should be rejected.
60 As to ground 5, the trial judge held that there was no requirement under the Collection Act that the Registrar comply with procedural fairness aspects of natural justice before making the DPO (see at [248] – [261]). In any event, his Honour accepted the evidence of Mr Wearne that he had told Mr Whittaker that if he did not enter into a suitable payment arrangement it was likely that a DPO would be made against him. It was open to his Honour to accept that evidence. The appellants simply reiterate their assertions made at first instance: their submissions on this point do not articulate an error on the part of the learned trial judge. Ground 5 of the appeal should be rejected.
(e) Whether the agents of the second respondent believed on reasonable grounds that a DPO was in force in respect of the first appellant
61 The appellants include under this heading grounds 7, 23, 24 and 26 of the notice of appeal. By ground 7 of the notice of appeal the appellants assert that the trial judge erred in finding that the DPO was found by the Customs and AFP officers to be the reason for the “do not process” alert. Ground 26 asserts error on the part of the trial judge in finding that the AFP and Customs officers held the relevant belief under s 72U of the Collection Act. As has been seen, s 72U of the Collection Act provides that authorised officers may take steps reasonably necessary to prevent departure and require a person to answer questions or produce documents if they believe on reasonable grounds that a person the subject of a DPO is about the leave Australia without a DAC.
62 The appellants argue that the AFP and Customs officers were not aware of the existence of the DPO; but this argument goes nowhere. The Customs officers did not have any role in determining whether Mr Whittaker should be permitted to depart Australia. His Honour dealt with the role of the Customs officers where a “do not process” alert appears in [39] and [40] of his reasons. That role was to refer the matter to the AFP in the manner described by his Honour.
63 In relation to the AFP officers, the appellants point to passages of the transcript in which they say the AFP officers in question acknowledged in cross-examination that they were trying to find out the reason Mr Whittaker was not allowed to board his flight. As the respondents point out in their written submissions, those passages do not constitute an acknowledgement that the officers did not believe that a DPO was in force against Mr Whittaker. The trial judge made findings at [83] and [84] of his reasons that the AFP officers believed that there was a DPO in force against Mr Whittaker and had reasonable grounds to do so. The appellants’ submissions on this point invite the comment that it is inherently unlikely that officers of the AFP would have gratuitously interfered with Mr Whittaker’s travel plans. However this may be, it is sufficient to say that the appellants do not articulate any error on the part of the learned trial judge in making the findings. Accordingly, grounds 7 and 26 of the appeal should be rejected.
65 Ground 23 of the appeal is the false imprisonment point. This ground is addressed at [70] – [72] of these reasons.
(f) Whether the trial judge erred in general in making his decision
66 Under this heading the appellants group grounds 11, 12, 13, 18, 21, 29, 30, 31, 32, 34, 36, 38, 40 and 41 of their notice of appeal.
67 Ground 11 of the notice of appeal is that the trial judge erred in finding that the further amended statement of claim does not identify grounds of appeal referable to s 72Q. This complaint goes nowhere.
68 Grounds 12 and 13 of the notice of appeal have been addressed above under “(b)” at [50] of these reasons. Ground 21 of the appeal canvasses the same ground. Essentially the complaint under these grounds is that the trial judge failed to make a finding about the use of the appellants’ tax file number to access tax records. Ground 21 of the appeal should be rejected for the same reason. This complaint goes nowhere for the reasons set out above.
69 Ground 18 of the notice of appeal is that the learned trial judge erred in finding that the appellant moved from England to reside in Australia in the absence of evidence on the point. The respondents point out that this comment was made in the context of a discussion of the appellants’ credibility. It could have had no bearing on the Registrar’s decision under s 72D(1) of the Collection Act.
71 The respondents point out, correctly, that it was open to his Honour to find that the reason Mr Whittaker did not leave the departure hall was that he preferred to remain “because he understood that that course might lead to his being permitted to fly” (at [194]). The appellants rely on Mr Whittaker’s version of events to seek to impugn the trial judge’s findings on this point. But the trial judge did not accept his version of events, preferring the evidence of the AFP officers. The appellants argue that the trial judge should have rejected the evidence of the AFP officers because they relied on a set of notes prepared by one of the officers in consultation with the other two. The trial judge turned his mind to this concern, but was prepared to accept the evidence of the AFP officers as accurate. It was open to his Honour to so decide. The officers participated in the preparation of the notes soon after the event when the circumstances were fresh in their minds (at [171]), and it was open to his Honour to accept that they had done so for the purpose of ensuring an accurate recollection rather than for the purpose of fabricating evidence. His Honour had the advantage of seeing and hearing these officers give evidence. He thus enjoyed a substantial advantage over this Court in forming an estimate of whether they were likely to have conspired to fabricate evidence.
72 At this point, it must also be said that the appellants’ case, that the refusal of permission to allow Mr Whittaker to board his flight and the direction that he should take a seat while his claim to board his flight was considered amounted to an imprisonment, is quite misconceived. Mr Whittaker was, on no view, subjected to the total restraint upon movement which is a necessary element of the tort of false imprisonment: see McFadzean v Construction, Forestry, Mining and Energy Union(2007) 20 VR 250; Louis v Commonwealth (1987) 87 FLR 277 at 282. On any sensible view of the situation, it was open to Mr Whittaker, at any time, simply to leave the airport.
74 Ground 31 of the notice of appeal asserts error on the part of the trial judge in finding that the Registrar did not trespass on the appellants’ goods. The appellants addressed this ground in their written submissions under the heading “h”. This ground is addressed at [91] of these reasons.
75 Ground 32 of the notice of appeal is that the trial judge erred in not applying the Evidence Act 1995 (Cth) s 32 in relation to the evidence of AFP and Customs officers. The appellants addressed this ground in their written submissions under the heading “h”. This ground is addressed at [92] of these reasons.
76 Ground 34 is that the trial judge erred in not giving reasons for judgment in respect of the orders made on 24 June 2008 “so that an appellate court might have the benefit of findings and reasons”. We are unable to discern any insufficiency in his Honour’s reasons which could be said to inhibit the performance of this Court’s functions on appeal.
77 Ground 36 of the notice of appeal is that the trial judge erred in making orders on 4 March 2009 that the appellants did not have leave to re-plead paragraphs of their amended statement of claim. Ground 38 is that the trial judge erred in dismissing the proceeding insofar as it sought the relief referred to in paragraph [7] of the original application. Paragraph [7] of the original application was in the same terms as paragraph [7] of the amended application, which we have addressed above at [44] in our rejection of ground 33 of the appeal. Ground 38 of the appeal should be rejected for the same reason. In their written submissions the appellants focus on what was said to be the error of the trial judge in dismissing paragraph [8] of the amended application without giving reasons and striking out paragraphs of the amended statement of claim without giving reasons. The appellants seem to suggest that the primary judge did not indicate “whether the paragraphs were struck out under s 31A by notice of motion filed on 12 Sept 2008”. The primary judge delivered reasons on the strike out application on 4 March 2009. Those reasons at paragraph [1] indicate that the notice of motion under consideration was one filed on 12 September 2008 under s 31A of the Federal Court of Australia Act 1976 (Cth). Once again, we are unable to discern any basis for the assertion that there was any relevant insufficiency in his Honour’s reasons.
78 Ground 40 of the notice of appeal is that the trial judge erred in not assessing damages “so that an appellate court might have the benefit of the findings”. The appellants addressed this ground in their written submissions under the heading “h”. This ground is addressed at [86] of these reasons.
79 Ground 41 of the notice of appeal is that the trial judge erred in determining the appellants should pay the costs of the proceeding. The learned trial judge’s order in respect of costs gave effect to the usual rule that costs of a proceeding should follow the event. That approach was correct.
(g) Findings of adverse credit
80 The appellant groups grounds 8, 9, 10, 27 and 28 of the Notice of appeal under this heading.
81 Ground 8 is that the trial judge erred in finding that the conversation between Mr Whittaker and witness Mr Badke was to do with resolution of the issue concerning the DPO. Ground 9 of the appeal is that the trial judge erred in finding that Mr Whittaker knew of the existence of the DPO in discussions with witness Ms Pitt. Ground 10 is that the trial judge erred in finding that Customs Officer Ellis scanned the passport of or otherwise dealt with Mr Whittaker on 15 February 2008. Ground 27 is that the trial judge erred in his findings of Mr Whittaker’s credit. Ground 28 is that the trial judge erred in omitting to make adverse findings as to the credit of the respondents’ witnesses.
82 The respondents in their written submissions have approached these grounds on the basis that the appellant is taking issue with the decision of the trial judge to accept the evidence of the Customs and AFP officers in preference to the evidence of the appellant. As has been seen, the learned trial judge concluded that he could not have confidence in Mr Whittaker’s evidence. No reason has been shown which would justify this Court in concluding that the learned trial judge’s findings about Mr Whittaker’s credibility were not correct.
83 These grounds of appeal should be rejected.
(h) Common law damages case
84 Under this heading are grounds 23, 29, 30 and 40, and grounds 10, 18, 24, 27, 28, 31, 32 of the notice of appeal.
85 Ground 23 concerns the false imprisonment claim. This claim has been discussed above at [70] – [72] of these reasons. Ground 29 concerns the interference with contract claim addressed above at [73] of these reasons. Ground 30 is the interference with trade claim discussed above at [73] of these reasons.
87 Ground 10 of the notice of appeal refers to the asserted error in finding that Customs officer Ellis scanned Mr Whittaker’s passport. The appellants argue that the learned trial judge erred in failing to hold against the respondents that they did not call evidence of video footage from the departure hall. Those events took place on 15 and 16 February 2008. Although Mr Whittaker commenced his proceeding shortly thereafter it did not include any claim in tort until this was raised by amendment on 2 April 2008. By then the better part of 7 weeks had passed. There was no evidence that any such footage was available by the time the wrongful imprisonment allegation was made. This might be thought to be unsurprising given the lapse of time. During the appeal Mr Whittaker contended that the respondents should have foreseen that he would bring the tort claim and therefore should have preserved any video footage it had. However, that submission proceeds on the suppressed premise that every time a passenger is stopped at the customs gate that it is foreseeable that the Commonwealth will be sued for wrongful imprisonment. That premise seems to us wholly outlandish. There was no evidence that any video footage was available nor any sensible reason why it should have been kept on the off-chance that Mr Whittaker might bring forth the unwarranted allegations that he did.
88 Ground 18 of the notice of appeal is the point about the appellant coming from England to live in Australia. This has been addressed above at [69] of these reasons.
89 Ground 24 of the notice of appeal is the assault complaint. This ground has been addressed above at [64] of these reasons.
90 Grounds 27 and 28 of the notice of appeal refer to the findings of credit. This view has been addressed above at [80] – [83] of these reasons.
93 Finally, it should be said that the short answer to all Mr Whittaker’s claims in tort is that the existence of the DPO, coupled with s 72U of the Collection Act, affords the officers of the Commonwealth involved in these incidents with a complete defence.
94 These grounds of appeal should be rejected.
A FURTHER APPLICATION
95 On 16 August 2010 the appellants filed a notice of motion which sought orders:
1. That the paragraphs enumerated from 64 to 73 including the exhibit marked MAW3 … to the affidavit of Mark Alan Whittaker sworn on 4 August 2009 in this matter be included in the evidence relied on in the Appeal.
2. That the Appellants be allowed to admit further evidence within the appeal.
3. That, on the undertaking of [Mr Whittaker] to return to Australia, the departure prohibition order made by the first respondent on or about 6 December 2006 be stayed until whichever of the following occurs first:
a. The departure prohibition order is revoked by the first respondent under s 72I of the [Collection Act];or
b. The departure prohibition order is set aside under s 72S of the [Collection Act]; or
c. Caveats No 711706146 and 713196462 issued in respect of properties owned by [Mr Whittaker] are withdrawn or revoked; or
d. All avenues of appeal are exhausted including appeal by special leave to the High Court of Australia.
96 The order sought by paragraph 1 of the notice of motion was unnecessary. The Court was not disposed to make the order sought by paragraph 2 of the notice of motion because the Court was not persuaded that the new evidence sought to be adduced was likely to have any bearing upon the resolution of the issues which arise on the appeal.
97 As to the order sought by paragraph 3 of the notice of motion, the parties were content that this Court determine this matter upon the determination of this appeal.
98 We would not have been disposed to grant the relief sought in paragraph 3 of the notice of motion. We are unable to persuade ourselves that the judgment of the Court below, or the judgment of this Court, is attended by sufficient doubt to warrant the staying of the operation of the DPO. Such an order was made in February 2008 to enable Mr Whittaker to go overseas, but since that time, the appellants’ claims have proceeded to trial and have been comprehensively and rightly rejected. We do not consider that this Court should lend its aid to the prolonging of the appellants’ futile challenges to the DPO.
99 In any event, after the hearing the parties informed the Court that they have agreed that, upon Mr Whittaker’s paying $5,000.00 into the respondents’ solicitors’ trust account, the Registrar will issue a departure authorisation certificate pursuant to s 72M of the Collection Act. On the basis that these arrangements proceed as the parties have agreed, the need for orders of the kind sought by Mr Whittaker disappears.
conclusion and orders
100 It has not been shown that the decision of the learned trial judge was affected by error.
101 The appeal should be dismissed.
102 The appellants’ notice of motion filed on 16 August 2010 should be dismissed.
103 The appellants should pay the respondents’ costs of the appeal and of the notice of motion.
| I certify that the preceding one hundred and three (103) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Keane and Justices Moore and Perram. |
Associate:
Dated: 7 September 2010
