FEDERAL COURT OF AUSTRALIA
Whittaker v Child Support Registrar [2009] FCA 188
TORTS – direct interference with contractual relations by unlawful means – inducement of breach of contract – distinction between the two grounds of tortious liability – requirement as to alleged tortfeasor’s state of mind – pleading.
Child Support (Assessment) Act 1989 (Cth) ss 150B, 150D
Child Support (Registration and Collection) Act 1988 (Cth) ss 15, 16B, 16C, 17, 17A 72D, 72E 72I, 72J, 72K, 72M, 72O, 72U, 72X
Federal Court Rules O 4 r 6(2); O 11 rr 2, 16
Taxation Administration Act 1953 (Cth) s 8WB
Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (1995) 58 FCR 26 followed
Bruce v Odhams Press, Limited [1936] 1 KB 697 cited
H 1976 Nominees Pty Ltd v Galli and Apex Quarries Ltd (1979) 30 ALR 181; 40 FLR 242 cited
Hospitality Group Pty Ltd v Australian Rugby Union Ltd (2001) 110 FCR 157 cited
Lumley v Gye (1853) 2 El & Bl 216 (118 ER 749) cited
Luton v Lessels (2002) 210 CLR 333 applied
Northern Territory of Australia v Mengel (1995) 185 CLR 307 cited
OBG Ltd v Allan; Douglas v Hello! Ltd (No 3); Mainstream Properties Ltd v Young [2008] 1 AC 1 discussed
Ranger Uranium Mines Pty Ltd v Federated Miscellaneous Workers’ Union of Australia (1987) 89 FLR 349 cited
Sanders v Snell (1998) 196 CLR 329 cited
Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109 cited
Zhu v Treasurer of the State of New South Wales (2004) 218 CLR 530 cited
Weekes and Child Support Registrar [2006] FLC ¶93-273;[2006] FamCA 598 cited
Whittaker v Child Support Registrar (2000) 106 FCR 105 cited
Whittaker v Child Support Registrar [2002] FCA 1429 cited
Whittaker v Child Support Registrar [2002] FCA 1430 cited
Whittaker v Child Support Registrar [2003] FCAFC 114 cited
Whittaker v Child Support Registrar [2004] HCATrans 252 cited
ROTARY KILN SERVICES (AUSTRALASIA) PTY LTD (ABN: 51 128 856 431) v
CHILD SUPPORT REGISTRAR and COMMONWEALTH OF AUSTRALIA
NSD 204 of 2008
LINDGREN J
4 MARCH 2009
SYDNEY
|
IN THE FEDERAL COURT OF AUSTRALIA |
|
|
NEW SOUTH WALES DISTRICT REGISTRY |
NSD 204 of 2008 |
|
MARK ALAN WHITTAKER First Applicant
ROTARY KILN SERVICES (AUSTRALASIA) PTY LTD (ABN: 51 128 856 431) Second Applicant
|
|
|
AND: |
CHILD SUPPORT REGISTRAR First Respondent
COMMONWEALTH OF AUSTRALIA Second Respondent
|
|
JUDGE: |
|
|
DATE OF ORDER: |
4 MARCH 2009 |
|
WHERE MADE: |
SYDNEY |
THE COURT ORDERS THAT:
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.
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 eSearch on the Court’s website.
|
IN THE FEDERAL COURT OF AUSTRALIA |
|
|
NEW SOUTH WALES DISTRICT REGISTRY |
NSD 204 of 2008 |
|
BETWEEN: |
MARK ALAN WHITTAKER First Applicant
ROTARY KILN SERVICES (AUSTRALASIA) PTY LTD (ABN 51 128 856 431) Second Applicant
|
|
AND: |
CHILD SUPPORT REGISTRAR First Respondent
COMMONWEALTH OF AUSTRALIA Second Respondent
|
|
JUDGE: |
LINDGREN J |
|
DATE: |
4 March 2009 |
|
PLACE: |
SYDNEY |
REASONS FOR JUDGMENT
Introduction
1 The respondents apply by notice of motion filed on 12 September 2008 for an order under s 31A of the Federal Court of Australia Act 1976 (Cth) dismissing the proceeding in so far as it seeks certain relief, and an order striking out certain paragraphs of the amended statement of claim filed on 15 August 2008 (ASC). The current form of the application is a further amended application which was also filed on 15 August 2008.
2 The proceeding has had a tortuous history which I need not recount.
3 The proceeding arises out of events at Sydney (Kingsford-Smith) Airport on 15 February 2008, 16 February 2008 and 2 March 2008. On 15 February 2008 and 16 February 2008, the first applicant (Mr Whittaker) was at the Airport intending to board Singapore Airlines Flight SQ232 bound ultimately for Langkawi in Malaysia. Apparently he had his ticket and boarding pass and was at the Immigration Passport Checkpoint. It is common ground that on each of the two dates Mr Whittaker was not allowed to board the Flight. On 2 March 2008, Mr Whittaker was again at the Airport intending to board Singapore Airlines Flight SQ220. He was allegedly “detained” and his passport and boarding pass were allegedly retained by the second respondent (Commonwealth), yet he was eventually able to pass through Immigration and board the flight.
4 The respondents’ case is that the power to prevent his departure given by s 72U(2) of the Child Support (Registration and Collection) Act 1988 (Cth) (the Collection Act) was activated. Section 72U(1) and (2) of the Collection Act provides:
(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.
5 The expression “authorised officer” is defined in s 72X to mean:
(a) an officer within the meaning of the Customs Act 1901; or
(b) a member of the Australian Federal Police.
6 In terms of s 72U(1)(a) and (c), it is common ground that Mr Whittaker was about to depart from Australia for Malaysia and that his departure was not authorised by a departure authorisation certificate. It is also common ground that a purported departure prohibition order (DPO) in respect of Mr Whittaker was in force. However, he challenges the validity of the purported DPO with the consequence that s 72U(1)(b) was not satisfied.
7 The applicants claim that Mr Whittaker:
· was employed by the second applicant (Rotary) pursuant to an agreement made by them on or shortly prior to 13 February 2008; and
· was to travel to Malaysia in the course of Rotary’s performance of a contract that it had entered into, also on or about 13 February 2008, with “Phillips Kiln Services (Asia-Pacific)” (Phillips) to provide specialised cement kiln services to Phillips in Malaysia.
8 Mr Whittaker further claims that on or about 11 February 2008 he entered into a contract with Singapore Airlines Ltd, a common carrier by air, whereby it would carry him as a passenger on Flight SQ 232 on 15 February 2008 from Sydney and flight MI368 from Singapore to Langkawi in Malaysia.
9 In summary, the ASC pleads three contracts: the carriage contract (between Singapore Airlines Ltd and Mr Whittaker), the employment contract (between Rotary and Mr Whittaker), and the supply contract (between Rotary and Phillips).
10 The applicants’ case is that both Mr Whittaker and his employer, Rotary, suffered loss in consequence of his not being permitted to board Flight SQ232 on 15 February 2008 and again on 16 February 2008. Mr Whittaker further claims that he suffered loss or damage arising from the events of 2 March 2008, in that the Commonwealth interfered with his liberty and/or the employment contract and/or the carriage contract.
11 The respondents do not challenge paras 1 to 5, 14 to 20 or 22 of the ASC, but ultimately seek an order striking out paras 6, 7, 8, 9, 10, 11, 12, 13, 21, 23, 23A, 23B, 23C, 24, 25, 27, 28, 29, 30, 31, 32, 33 and 34 of the ASC. The applicants do not press paras 27, 30, 32 and 33 of the ASC or paras (d) and (e) of the particulars to para 24 of the ASC. Accordingly, all of those paragraphs will be struck out without leave to replead.
12 By their motion, the respondents also seek summary dismissal of the proceeding in so far as it seeks the relief claimed in para 8 of the further amended application. Paragraph 8 reads as follows:
8. that the Court declare that the applicant [sic – First Applicant] does not have a child support liability pursuant to the Child Support (Assessment) Act 1989 or in the alternative that the liability is nil; …
CONSIDERATION
13 Argument took place with reference to various groups of paragraphs of the ASC, and I will conform to counsel’s approach.
False imprisonment and trespass – paragraphs 6, 7, 12 and 13
14 These paragraphs allege false imprisonment and trespass to goods (and perhaps trespass to the person – see below).
15 Paragraph 6 relates to the events of 15 February and para 7 to those of 16 February. Apart from the difference in dates, they are identical. It will therefore suffice if I set out paras 6, 12 and 13, which are as follows:
6. On 15 February 2008, 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 SQ232, the Second Respondent by its servants or agents: approached the First Applicant at Kingsford Smith International Airport, Sydney and thereafter deprived him of his liberty, restraining him and threatening him that should he proceed further through the airport whereby he 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 further then seized the First Applicant’s passport and boarding pass for flight SQ232, and retained his travel documents including his passport and boarding pass and directed that the carrier discharge the Applicant’s luggage including his equipment and tools of trade from the aircraft of Singapore Airlines conducting flight SQ232, whereby the First Applicant was falsely imprisoned and/or the Respondents and each of them trespassed upon the First Applicant and/or his personal property.
Particulars:
a. The Respondents and each of them by their servants or agents wrongly detained the First Applicant; and
b. without explanation, retained the First Applicant’s Passport, completed Immigration document and Airline Boarding Pass; and
c. 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
d. 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
e. 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
f. 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
g. shortly thereafter approached the First Applicant bearing firearms; and
h. proceeded to ask the First Applicant questions in full view of the general public passing through the Immigration zone; and
i. stood side by side with arms folded and in a position where the First Applicant felt further restrained, threatened and intimidated; and
j. further refused to allow the First Applicant to leave the area or to board the plane or to answer the First applicant’s questions when asked; and
k. directed that the carrier discharge the Applicant’s luggage including his equipment and tools of trade from the aircraft of Singapore Airlines conducting flight SQ232; and
l. refused to provide any reason for detaining the First Applicant or for preventing the First Applicant from going abut the First Applicant’s business or from boarding the Singapore Airlines flight SQ232; and
m. finally instructed and or ordered the First Applicant to leave the Immigration zone and further to leave the Sydney International airport.
…
12. Further, or alternatively, on 15 and again on 16 February 2008, the Second Respondent by its servants or agents, falsely imprisoned the First Applicant at the Kingsford Smith International Airport, whereby he suffered loss and damage.
13. Further, or alternatively, on 15 and 16 February 2008 the Second Respondent by its servants or agents trespassed upon the First Applicant’s goods by retaining his documents and removing or arranging for the removal of his luggage and equipment from the aircraft at the airport.
It is noted that paras 12 and 13 do not in terms allege trespass to the person, although this is alleged in terms in the concluding words of paras 6 and 7.
16 The first complaint that the respondents make is that these paragraphs fail to plead material facts. Order 4 r 6(2) of the Federal Court Rules provides that the affidavit or statement of claim that must be filed and served with the application by which a proceeding is commenced must show:
(a) the nature of the applicant’s claim; and
(b) the material facts on which it is based.
Similarly, O 11 r 2 of the Federal Court Rules provides that a party’s pleading must contain, and contain only, a statement in a summary form of “the material facts on which the party relies”, but not the evidence by which those facts are to be proved.
17 Order 11 r 16 provides:
16 Where a pleading:
(a) discloses no reasonable cause of action or defence 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 the whole or any part of the pleading be struck out.
18 The respondents cite H 1976 Nominees Pty Ltd v Galli and Apex Quarries Ltd (1979) 30 ALR 181; 40 FLR 242 and Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109 for the proposition that the material facts must be stated in the text of a pleading, not in “particulars”.
19 The leading authority for that proposition is the judgment of Scott LJ in Bruce v Odhams Press, Limited [1936] 1 KB 697. His Lordship described the difference between a statement of material facts and particulars in the following terms (at 711):
[A] radical distinction, and none the less so that in cases near the dividing line there is a penumbra where the two may and often do overlap, just as between night and day there is zone of doubt which we call dusk.
His Lordship said (at 712) that a statement of the material facts is a statement of the facts necessary to constitute a complete cause of action. He said that “particulars” are not to be used in order to fill material gaps in a statement of claim. His Lordship said (at 712-713):
The use of particulars is intended to meet a further and quite separate requirement of pleading, imposed in fairness and justice to the defendant. Their function is to fill in the picture of the plaintiff’s cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial. Consequently in strictness particulars cannot cure a bad statement of claim. But in practice it is often difficult to distinguish between a “material fact” and a “particular” piece of information which it is reasonable to give the defendant in order to tell him the case he has to meet; hence in the nature of things there is often overlapping. And the practice of sometimes putting particulars into the statement of claim and sometimes delivering them afterwards either voluntarily, or upon request or order, without any reflection as to the true legal ground upon which they are to be given has become so common that it has tended to obscure the very real distinction between them.
20 Bruce v Odhams Press, Limited was a defamation case. The defendant company had published a newspaper article which referred to certain aeroplane smuggling exploits of “an Englishwoman”. By her statement of claim, the plaintiff merely asserted that these words were meant and were understood to mean her. This was held to be failure to plead material facts. It was necessary for the plaintiff to plead extrinsic facts on which she would rely to link the words “an Englishwoman” to herself.
21 In H 1976 Nominees Pty Ltd v Galli and Apex Quarries Ltd, above, Northrop J, following Scott LJ in Bruce v Odhams Press, Limited, rejected (at 187) an argument that the particulars to a paragraph of a statement of claim should be treated as a statement of material facts for the purposes of the Federal Court Rules.
22 The distinction between material facts and particulars was recognised by Fisher J in Trade Practices Commission v David Jones (Australia) Pty Ltd, above (at 112 ff). His Honour described the paragraph of the statement of claim in question in that case as “merely a statement of a conclusion drawn from facts which are not in the statement of claim” (at 114). The paragraph pleaded that certain respondents had “made an arrangement or arrived at an understanding”. The deficiency in that allegation was not cured by the giving of particulars of the individuals who had represented those respondents at a certain meeting, the date and place of the meeting, the identity of those present, and the effect of the arrangement or understanding.
23 It may be that the distinction between material facts and particulars is not insisted upon as strictly nowadays as it was a few decades ago. An advantage of maintaining the distinction is that it emphasises, for the benefit of both the parties and the Court, that the applicant’s position is that it is the facts pleaded in the text of the statement of claim, no more and no less, that the applicant needs to prove in order to establish the asserted cause of action. So long as the distinction is understood and observed, there will not be the confusion that arises when either party, if and when it suits its own purposes, refers to the particulars as if they formed an undifferentiated part of the pleading.
24 The text of paras 6 and 7 is deficient. 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.
29 Some precedents for the pleading of false imprisonment can be found in Bullen & Leake & Jacob’s Precedents of Pleadings (London, Sweet & Maxwell, 2008) at pp 58 ff (2-A13 ff) (Bullen & Leake).
30 The respondents’ first objection is sustained.
31 The respondents’ second contention is that the ASC fails to plead unlawfulness. The respondents contend that the pleading is deficient for a failure of the applicants to plead that the conduct of the Commonwealth’s officers was not authorised by s 72U of the Collection Act because the officers did not have the relevant belief on reasonable grounds. The respondents point out that the pleading (at para 14) acknowledges that a DPO was at least purportedly made, which, on the face of things, would be sufficient to provide a basis for reasonable belief under s 72U.
32 All of the relevant pleadings of false imprisonment in Bullen & Leake incorporate the word “wrongfully” and I think that that word should be incorporated into the text of paras 6 and 7. But that is as far as the applicants need go. I do not accept that the applicants must plead, and later prove, the absence of reasonable belief. It will be for the respondents to plead and prove by way of defence facts showing that s 72U of the Collection Act made the officers’ conduct lawful.
33 The respondents’ third criticism of paragraphs 6, 7, 12 and 13 relates to the claim of trespass to Mr Whittaker’s person. There is no allegation of physical contact that would constitute “battery”, and no allegation “that the first applicant had at any time a reasonable apprehension of imminent physical contact” that would constitute assault. The ASC is embarrassing in this respect. Moreover, as mentioned earlier, trespass to the person is in terms alleged in paras 6 and 7 but is not repeated in terms in paras 12 or 13.
34 Trespass to the person may be assault, battery or false imprisonment. Mr Whittaker may intend to allege one, two or all three of these. False imprisonment is often accompanied by an assault and a battery. Battery requires physical contact, whereas assault does not. An assault is:
an act involving an imminent threat to touch another in a hostile manner with the capability to carry out such threat: a menacing attitude, such as holding up a hand or a stick to strike a person who is within reach at the time, constitutes an assault… A person may commit an assault without committing a battery (Bullen & Leake at 2-01, p 38)
The physical contact that constitutes battery is physical touching, whether by hand, weapon or missile.
35 If it is to be alleged that there was a battery, the ASC will need to be further amended. If there is to be an allegation of assault, likewise. At present the ASC alleges neither. The allegation of trespass to the person is consistent with an allegation of false imprisonment alone.
36 In oral submissions, Mr King of counsel for the applicants did seem to press a case of “trespass upon the person”. However, he said that he characterised the false imprisonment as a trespass. He was correct in the latter respect. He said that he did not accept counsel for the respondents’ characterisation of the reference in paras 6 and 7 to “trespass upon the first applicant” as an “assault”.
37 The ASC is confusing. It should be amended to plead clearly the elements of battery or assault or false imprisonment or two or all three of these, according to Mr Whittaker’s actual allegations. Since “trespass to the person” covers all three, that expression, in the interests of clarity, should not be used unless it is made clear at the same time which of the three forms of trespass to the person is alleged.
38 The fourth and last criticism of paras 6, 7, 12 and 13 relates to the claim of trespass to Mr Whittaker’s goods. In their submissions the respondents offer the following definition of trespass to goods:
Trespass to goods is an act of the defendant which directly and either intentionally or negligently disturbs the plaintiff’s possession of a chattel. Such a trespass may be constituted by taking goods out of the plaintiff’s possession, moving them from one place to another or causing damage to them.
Unfortunately the respondents do not acknowledge the source of this quotation.
39 The point that the respondents make is that the applicants contend only that the Commonwealth “directed that the carrier discharge the Applicant’s [sic] luggage including his equipment and tools of trade from the aircraft…”.
40 The giving of a direction is not trespass to the luggage, equipment and tools of trade. Facts would need to be pleaded, if they can be, showing that the Commonwealth was liable for the carrier’s conduct. Facts must be pleaded showing that the Commonwealth directly interfered with Mr Whittaker’s luggage.
41 Paragraphs 6 and 7 also allege that the Commonwealth, by its servants and agents “seized the First Applicant’s passport and boarding pass for Flight SQ232, and retained his travel documents including his passport and boarding pass”. It is not clear whether this allegation is also relied upon as supporting a trespass to Mr Whittaker’s goods. The respondents do not attack this part of the pleading. It is not subject to the criticism that there was merely a direction to a third party (such as the carrier) to do something. It should, however, be made clear, one way or the other, whether a trespass to goods is being alleged in respect of the passport, boarding pass and “travel documents” (if there are travel documents apart from the passport and boarding pass). The notion of trespass to Mr Whittaker’s “personal property” is too vague, having regard to the fact that the expression follows immediately upon the reference to luggage, equipment and tools of trade.
42 For the above reasons, paragraphs 6, 7, 12 and 13 should be struck out, but with leave to replead.
Interference with contractual relations – paragraphs 8 and 9
43 Paragraphs 8 and 9 of the ASC are as follows:-
9. In the premises the Second Respondent by its servants or agents, intentionally and with knowledge interfered in the supply contract, and/or the employment contract and/or the carriage contact, whereby the First and Second Applicants and each of them have suffered loss and damage.
Particulars of Loss of First Applicant
a. Wasted expenses including Air fares
b. Loss of opportunity
c. Loss of reputation
d. General damages
e. Distress and disappointment
f. Loss of wages
Particulars of Loss of Second Applicant
a. Wasted expenses including Air fares
b. The Second Applicant incurred expenses in providing alternative labour to perform the contract at Langkawi – being the wages of the substitute supervisor
c. Loss of opportunity
d. General damages
44 The applicants accept that para 8 needs to be amended. They ask that it be read as though it said “…until discovery herein, such that they were aware…” (my emphasis). Even so read, para 8 does not tell us what Mr Whittaker informed the Australian Federal Police officers and an Immigration officer and a Customs officer. What it alleges is that he informed them of something that is not identified as a result of which they were aware of the existence of the three contracts.
45 I may be able to imagine certain things that Mr Whittaker may have said, but this is not good enough; the applicants must plead the effect of the words that he spoke not the ultimate conclusion to be drawn from that effect.
46 The respondents attack para 9 of the pleading by reason of its opening words “In the premises”, a failure to plead that the conduct of the Commonwealth officers was not justified, and a failure to plead knowledge on the part of the Commonwealth officers of the supply contract or employment contract, or an intention of causing interference with them.
47 In my view, however, it is clear that the words “In the premises” refer back to paras 6 and 7.
48 It is not necessary for para 9 to allege “without lawful justification”. The onus of pleading and proving lawful justification rests on the respondents.
49 The words “with knowledge” are unsatisfactory. They do not identify that of which the Commonwealth’s servants or agents are claimed to have had knowledge.
50 The gravamen of the Commonwealth’s attack emerged in oral submissions. The Commonwealth contended that the applicants must plead that the Commonwealth, through its officers, desired or wanted or aimed to procure the breaches of the contracts or to interfere with performance of them.
51 With respect, both parties’ submissions on this part of the pleading did not begin to address the issues that arise. No doubt the Commonwealth would attribute any shortcoming in its submissions in this respect to the ambiguity of the ASC.
52 Recently in OBG Ltd v Allan; Douglas v Hello! Ltd (No 3); Mainstream Properties Ltd v Young [2008] 1 AC 1 (OBG) the members of the House of Lords had occasion to consider in detail the elements of the torts of “inducing a breach of contract” and “interference with contractual relations by unlawful means”. The former is a secondary liability, the primary liability being that of the contract breaker. The latter is a primary liability alone.
53 The present case is not one of the Commonwealth officers’ having induced Rotary or Mr Whittaker or both to decide to breach contracts giving rise to a secondary liability of the Commonwealth to the other contracting parties. Yet counsel for the applicants cited Hospitality Group Pty Ltd v Australian Rugby Union Ltd (2001) 110 FCR 157, a case of inducement of a breach of contract. If it is anything, the present case is one of direct interference by unlawful means with the performance by Rotary and Mr Whittaker of the respective contracts.
54 Admittedly, the two bases of liability to which I have referred have often not been distinguished. Direct physical prevention of contractual performance by unlawful means has been treated as a species of inducing a breach of contract. See, for example, Ranger Uranium Mines Pty Ltd v Federated Miscellaneous Workers’ Union of Australia (1987) 89 FLR 349 at 350-1. In Trindade, Cane and Lunney, The Law of Torts in Australia (4th ed, OUP, 2007), the authors give as an example of the procurement of a breach of contract, a defendant’s physically detaining a contracting party or depriving him of his tools, so that he cannot perform a contract with the plaintiff (at [6.6.2.2] p 307). See, too, John Murphy, Street on Torts (12th ed, OUP, 2007) at 368-369; and The Laws of Australia (Lawbook Co., subscription service) 33 Torts at [8.1140].
55 It will be necessary for the pleading to be amended in order to conform, not with the notion of inducing or procuring a breach of contract, but with that of direct inference by unlawful means with the performance of a contract.
56 I discussed this question of the required state of mind of the inducer in a case of inducing breach of contract in Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (1995) 58 FCR 26 (Allstate) at 43 (in a judgment with which Lockhart and Tamberlin JJ agreed). Malice, in the sense of spite or ill will, is not an element of that tort: Zhu v Treasurer of the State of New South Wales (2004) 218 CLR 530 at [114]; cf Northern Territory of Australia v Mengel (1995) 185 CLR 307 (Mengel) at 341-342.
57 Because the matter was not debated before me, I simply refer the parties, especially the applicants, to the discussion of the elements of the tort of direct interference with contractual relations by unlawful means in OBG. In particular, they will need to consider (a) the unlawful means element, and (b) the element of the required state of mind of the respondents in the case of that species of tortious conduct, as distinct from the required state of mind in the case of inducing a breach of contract.
58 There is, however, a more fundamental question which was also not raised on the hearing. This is whether the action lies for the benefit of Mr Whittaker and Rotary at all. The action for inducement of breach of contract does not lie for the benefit of the contract breaker. It lies only for the benefit of the other contracting party. Much of the debate on the hearing treated the claim as a species of inducement of breach of contract of the Lumley v Gye (1853) 2 El & Bl 216 (118 ER 749) kind, yet this point was not raised. Is the position different when the claim is for direct interference with contractual relations by unlawful means? It may well be. On the other hand, the argument is open that it is no different, and that the applicants’ remedy includes a claim for their economic loss in the damages they seek to recover for some other tort, such as, false imprisonment.
59 In conclusion, the “Heads of Loss and Damage” document filed by the applicants on 24 April 2008 showed that the allegation is not that the supply contract was breached, but that additional costs were incurred by the applicants in connection with its performance. Again, on the hearing it seems to have been assumed by both counsel that the applicants’ claim was that the Commonwealth, through its officers, had prevented performance of the contracts.
60 Paragraphs 8 and 9 will be struck out with leave to replead. The most careful consideration will need to be given as to what cause of action, if any, can properly be pleaded in their place. If claims are to be pursued for direct interference with contractual relations by unlawful means, they must be separately pleaded in respect of each applicant and each of the three contracts.
Interference with trade – paragraph 10
61 The respondents object to para 10 of the ASC on the bases on which they objected to paras 8 and 9. Paragraph 10 states:
Further, or alternatively, [the Commonwealth] by its servants or agents with intent interfered in the trade of the First and/or Second Applicant whereby they and each of them have suffered loss and damage.
62 This pleading is totally unsatisfactory. What “intent”? What “interference”? What “trade”?
63 A tort of interference with trade or business interests by unlawful means, as distinct from interference with contractual relations, has not yet been recognised by the High Court, although neither has it been rejected. In Mengel at 343 and Sanders v Snell (1998) 196 CLR 329 at [35]-[40], it was referred to as an embryonic or emerging tort. For the purposes of the present motion, I proceed on the assumption that it forms part of Australian law.
64 I do not understand the basis on which “interference with trade” is pleaded as distinct from a pleading of interference with contractual relations by unlawful means. If the tort is recognised, the unlawfulness concerned will be not just unauthorised conduct but prohibited conduct: see Sanders v Snell,above, at [35]-[36].
65 Counsel for Mr Whittaker puts the interference with trade case on two bases: an intentional interference with the business of the applicants, or an interference with their business by illegal means. The former seems to be nothing other than the claim of interference with contractual relations. As to the alternative, the illegal means identified is “the threat of an illegal act, namely what we have previously pleaded, or alternatively illegal false imprisonment, or alternatively trespass to goods.” The “illegal means” must be pleaded with specificity. “What we have previously pleaded” is not good enough. As well, I do not understand how a threat of false imprisonment or a threat of trespass to goods, without more, could have interfered with the applicants’ trade.
66 Unlike paras 8 and 9, para 10 does not state that it is based on “the premises” of paras 6 and 7. It seems to add no cause of action beyond that of interference with the performance of the three contracts. Unless “interference with trade” is intended to be different, and the difference is clearly articulated, it should not be repleaded.
67 Paragraph 10 will be struck out with leave to replead, but the applicants should replead only if they can plead with clarity a cause of action different from that of direct interference with contractual relations by unlawful means.
Threat of illegal act – paragraph 11
68 Paragraph 11 of the ASC reads as follows:
Further, or alternatively, the Second Respondent by its servants or agents or otherwise on 15 and on 16 February 2008 at Kingsford Smith Airport compelled the First Applicant by means of threat of an illegal act, to forbear from exercising his liberty and/or right to work, whereby, he suffered loss and damage.
69 This paragraph is defective for failing to plead material facts of:
(a) the threat of an illegal act;
(b) the forbearance from exercising Mr Whittaker’s liberty and/or right to work;
(c) the causal link between the threat and the forbearance.
70 Paragraph 11 will be struck out with leave to replead.
Power to make a DPO not delegable – paragraph 21
71 Paragraph 21 is as follows:
Further, the DPO purportedly made by the First Respondent was not made by the First Respondent or at all but by a delegate thereof [Miss Scott] purporting to exercise the power of the First Respondent provided for in the Child Support (Registration and Collection) Act 1988 which power was non-delegable whereby the Order is void and/or made in excess of jurisdiction by the said delegate.
72 Section 72D of the Collection Act (set out at [80] below) provides that the First Respondent, the Child Support Registrar (Registrar), may make a DPO in the circumstances set out in that section. Section 15 of that Act provides that the Registrar may, in writing, delegate all “or any of the Registrar’s powers or functions” under the Collection Act to an officer or employee of the Department.
73 The applicants contend that the power given to the Registrar by s 15 to delegate all or any of the Registrar’s powers or functions does not include a power to delegate the power given to the Registrar by s 72D(1) to make a DPO, independently of a delegation of other powers. The argument is that that power can be delegated only if it is delegated as part of a delegation of the Registrars’ powers to do all of the various things in relation to DPOs that are referred to in ss 72I, 72J, 72K, 72M and 72O of the Collection Act. The applicants contend that the Registrar’s powers are “not divisible”.
74 The applicants also contend that the power given by s 72D is a “personal” power that the Registrar alone could exercise.
75 I reject both grounds of attack.
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.
77 In any event, there is no suggestion in the ASC that the delegation to Ms Scott was not a delegation of all of the Registrars powers under Pt VA.
78 Paragraph 21 should be struck out without leave to replead.
Lack of good faith – paragraph 23
79 Paragraph 23 reads as follows:
Further or alternatively the said Order was not made pursuant to Child Support (Registration and Collection) Act 1988 section 72D in good faith or was not based on reasonable grounds whereby the court should set aside, discharge or revoke the order pursuant to Child Support (Registration and Collection) Act 1988 section 72S and/or section 111B.
Particulars
a. The First Applicant was not a person who had a registrable maintenance liability of the kind mentioned in s. 17 or 17A of the Act.
b. There was no or no proper basis for finding that the First Applicant had a valid child support debt.
c. There was no or no proper basis for finding that the First Applicant had persistently and without reasonable grounds failed to pay a child support debt.
d. To the First respondent’s knowledge no legal action had been taken to recover the debt.
e. There was no or no sufficient basis for concluding that the First Applicant had the capacity to pay any such debt.
f. It was not objectively desirable as at December 2006 to make an Order in the circumstances referred to above in paragraphs 23(b), 23(c), 23(d) and 23(e).
g. It was not objectively desirable to make an Order where the First Applicant had existing family and other ties in Australia.
h. The Applicants will supplement the particulars after discovery.
80 Section 72D of the Act is as follows:
(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:
(i) child support debts arising from a registrable maintenance liability under section 17; or
(ii) a child support debt arising from a registrable maintenance liability under section 17A; and
(iii) one or more child support debts arising from a registrable overseas maintenance liability under subsection 18A(1), paragraph 18A(3)(a) or subsection 18A(4) (insofar as subsection 18A(4) relates to subsection 18A(1) or paragraph 18A(3)(a)); 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 the following matters:
(a) the capacity of the person concerned to pay the debt or debts;
(b) the number of occasions on which action has been taken to recover the debt or debts, and the outcome of the recovery action;
(c) if subparagraph (1)(c)(i) applies – the number of occasions on which the debts mentioned in that subparagraph had not been paid on or before the day on which they became due and payable;
(d) if subparagraph (1)(c)(ii) applies –the length of time for which the debt mentioned in that subparagraph has remained unpaid after the day on which it became due and payable;
(da) if subparagraph (1)(c)(iii) applies:
(i) the length of time for which the debts mentioned in that subparagraph have remained unpaid after the day on which they became due and payable; and
(ii) the number of occasions on which the debts mentioned in that subparagraph had not been paid on or before the day on which they became due and payable;
(e) such other matters as the Registrar considers appropriate.
(3) A departure prohibition order must be in the approved form.
81 The expression “child support liability” is defined in s 72E of the Collection Act. One element of the definition is that a person has a “registrable maintenance liability” of a kind mentioned in ss 17 or 17A of the Collection Act.
82 Paragraph 23 does not allege facts constituting lack of good faith and should be struck out to the extent that it so alleges, with leave to replead. No doubt those advising the applicants will not replead lack of good faith if there are not material facts capable of supporting that allegation.
Interference with liberty and contracts – paragraphs 23A-23C
83 These paragraphs read as follows:
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 the First Respondent and the Second Respondent undertook by its counsel to allow 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
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.
Taxation power – paragraph 24; judicial power – paragraph 25
88 These paragraphs, with the omission of paras (d) and (e) of the particulars to para 24 which are not relied on, are as follows:
24. Further or alternatively there was no or no sufficient basis for the child support liability in the present matter in that the Child Support (Assessment) Act 1989 is invalid insofar as it purports to, or purported to, confer a taxation power upon the First Respondent in contravention of the Constitution, s.53 and s.55.
Particulars
a. The First Respondent contended that section 150D of the Child Support (Assessment ) Act 1989 authorises the First Respondent to require the Commissioner of Taxation to provide the First Respondent with the First Applicant’s Tax File Number despite sections 150B and 150C of the Child Support (Assessment) Act 1989 and section 8WB of the Taxation Administration Act 1953.
b. Child Support Income is determined by the First Respondent by reference to Taxable Income obtained by reference to a tax file number.
c. Child Support Income is assessable under the administrative formula in Part 5 of the Child Support (Assessment) Act 1989.
d. …
e. …
f. As a consequence, in order for the First Applicant having a Tax File Number to fulfil a tax obligation, section 150D of the Child Support (Assessment) Act 1989 purports to facilitate the forceful exaction of an administratively assessed child support liability by authorising use of the same Tax File Number.
25. Further or alternatively there was no or no sufficient basis for the child support liability in the present matter in that the Child Support (Assessment) Act 1989 is invalid insofar as it purports to confer judicial power upon the First Respondent in contravention of the Constitution, s. 71.
Particulars
a. Section 30 of the Child Support (Assessment) Act 1989 purports to require the First Respondent to determine the First Applicant’s Liability to pay Child Support under the administrative formula in Part 5 of the Act.
b. Section 10(2) of the Child Support (Registration & Collection) Act 1988, prior to amendment in 2001, nominated the Commissioner of Taxation as holding the Office of the Child Support Registrar having powers under the Child Support (Assessment) Act 1989.
c. Section 8WD (Repealed in 2001 after the commencement of the original administrative assessment) of the Taxation Administration Act 1953 authorised the Commissioner of Taxation to take, store and use the First Applicant’s Tax File Number to determine the First Applicant’s Child Support Income Amount upon which the Liability is assessed.
d. Section 117(2) of the Child Support (Assessment) Act 1989 prevents judicial review or recourse unless a special circumstance exists by the establishment of one of the particular statutory grounds.
e. The grounds of review or of judicial recourse do not allow an administrative assessment to be reviewed or considered in a case where the sole ground is that the assessment is unjust or inequitable.
f. As a consequence, section 30 of the Child Support (Assessment) Act 1989 purports to compel the First Applicant to pay the administratively assessed Child Support Liability.
89 The applicants (at para 24) argue that the Child Support (Assessment) Act 1989 (Cth) (Assessment Act) is invalid because it purports to confer a taxation power upon the Registrar in contravention of ss 53 and 55 of the Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12, s 9(the Constitution) and (at para 25) purports to confer judicial power on the Registrar in contravention of s 71 of the Constitution.
90 There is no substance in these attacks: see Luton v Lessels (2002) 210 CLR 333.
91 Mr Whittaker has previously taken these contentions to the stage of a special leave application before the High Court: see Whittaker v Child Support Registrar [2004] HCATrans 252. Special leave was refused. Previously Mr Whittaker’s judicial power argument was rejected by Drummond J in Whittaker v Child Support Registrar (2000)106 FCR 105 and Dowsett J in Whittaker v Child Support Registrar [2002] FCA 1429. His taxation power argument was rejected by Dowsett J in Whittaker v Child Support Registrar [2002] FCA 1430. On appeal, the Full Court held that Luton v Lessels “foreclos[ed] any constitutional challenge” (Whittaker v Child Support Registrar [2003] FCAFC 114 at [4]). As noted above, the High Court refused special leave to appeal. Further, an attempt to limit the scope of the operation of Luton v Lessels failed in Weekes and Child Support Registrar [2006] FLC ¶93-273;[2006] FamCA 598.
92 I note that para 3 has been deleted from the further amended application. Paragraphs 24 and 25 should have been removed from the ASC. The applicants have merely added some particulars.
93 Paragraphs 24 and 25 should be struck out without leave to replead.
94 Mr Whittaker (in person with leave) submitted that Luton v Lessels does not constitute a binding precedent because the originating process on the High Court file in that case did not bear the seal of the High Court. The submission is devoid of merit. I also note that the deletion of para 1 in the further amended application was consistent with an abandonment of the submission.
Torts in relation to tax file numbers – paragraphs 28, 29 and 31
95 These paragraphs are as follows:
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 First Applicant’s tax file number to identify the First Applicant for the purpose 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 At 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.
30. .........................................................................................................
31. Further, or alternatively, the First Respondent negligently or in breach of his duty of confidence to the First Applicant used the First Applicants’ tax file number to identify the First Applicant for the purpose of administratively assessing the First Applicant’s purported liability pursuant to Part V of the Child Support (Assessment) Act 1989 namely the assessment made or determined on or shortly prior to December 2006 that the First Applicant was a person who has a child support liability.
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 150B of the Child Support (Assessment) Act 1989.
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 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 permission or authority of the First Applicant, obtain the First Applicant’s tax file number, store and maintain a record of the said tax file number and use the said tax file number in connection with the First Applicant’s identity to determine the First Applicant’s Child Support Income amount and the said assessment of child support liability.
96 Section 16B of the Collection Act, referred to in the ASC, provides that the Registrar may request, but not compel, a person who is a payer or payee in relation to a registrable maintenance liability to give the Registrar a written statement of the person’s tax file number.
97 Section 8WB of the Taxation Administration Act 1953 (Cth) (TA Act) referred to in the ASC prohibits a person, under penalty, from recording another person’s tax file number or maintaining such a record, using another person’s tax file number in a manner connecting it with the other person’s identity, or divulging or communicating another person’s tax file number to a third person.
98 Section 150B of the Assessment Act referred to in the ASC empowers the Registrar to request, but not to compel, certain persons to give the Registrar a written statement of the person’s tax file number or, if the person does not have one, to apply to the Commissioner for a tax file number and to give to the Registrar a written statement of that number after the Commissioner has issued it to the person.
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.
105 Paragraph 31 of the ASC has the same defects as paras 28 and 29. It should also be struck out without leave to replead.
Alleged loss and damage – paragraph 34
106 This paragraph alleges that as a result of “the aforementioned negligence or breach of duty of the First Respondent his servants or agents the First Applicant has suffered loss and damage”. However, since the pleading of negligence or breach of duty has been struck out, para 34 should also be struck out, without leave to replead.
Paragraph 8 of the Further Amended Application
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, 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 proceeding should be dismissed in so far as it seeks the relief identified in para 8 of the further amended application.
Conclusion
108 In the result there will be orders:
(a) that the proceeding be dismissed in so far as it seeks the relief identified in para 8 of the further amended application;
(b) that paras 21, 23A, 23B, 23C, 24, 25, 27, 28, 29, 30, 31, 32, 33 and 34 of the ASC be struck out without leave to replead;
(c) that paras 6, 7, 8, 9, 10, 11, 12, 13, and 23 of the amended statement of claim be struck out with leave to replead;
(d) that the applicants pay the respondents’ costs of the respondents’ motion.
109 If the leave to replead is to be exercised, this must be done by the filing of a further amended statement of claim showing the amendments by underlining in the usual way. The expression “in the premises” should not be used unless it is clear that the reference is to that which immediately precedes it.
|
I certify that the preceding one hundred and nine (109) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. |
Associate:
Dated: 4 March 2009
|
Counsel for the Applicants (respondents to the motion): |
Mr P E King |
|
|
|
|
Solicitors for the Applicants (respondents to the motion): |
McKells Solicitors |
|
|
|
|
Counsel for the Respondents (applicants on the motion): |
Mr S B Lloyd SC and Ms A Arunothayam |
|
|
|
|
Solicitors for the Respondents (applicants on the motion): |
Australian Government Solicitor |
|
Date of Hearing: |
25 November 2008 |
|
|
|
|
Date Last Submission Received: |
26 November 2008 |
|
|
|
|
Date of Judgment: |
4 March 2009 |
